The power to grant anticipatory bail under Section 438 of the Code of Criminal Procedure is an extraordinary power and should be exercised only in exceptional cases, not as a matter of course.

The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (‘Code’, for short), for an order of pre-arrest bail.

2. The petitioner is the sole accused in Crime No.203/2024 of the Pavaratty Police Station, Thrissur, registered against him for allegedly committing the offences punishable under Sections 294 (b) and 307 of the Indian Penal Code .

3. The essence of the prosecution case is that: on 1.4.2024, at around 15.10 hours, the accused with an intention to kill the friend of the de facto complainant named Mahibul Islam, a native of Assam, went to the house of the victim and shot him with an air gun. The victim suffered grievous injuries on his abdomen.

Thus, the accused has committed the above offences.

4. Heard; Sri.Saijo Hassan, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor.

5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. In fact, the victim and three others attempted to attack the petitioner. It is to save his life that the petitioner had taken the air gun and shot the victim. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioner is entitled to an order of pre-arrest bail.

6. The learned Public Prosecutor seriously opposed the application. She submitted that there are incriminating materials to establish that the petitioner had shot the victim. She made available the accident register cum wound certificate issued by the Rajah Charitable Medical Trust Hospital, Chavakkad dated 1.4.2024, to substantiate the fact that the victim had suffered a punctured wound on his abdomen and other injuries. She stated that the petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre- arrest bail, it will certainly hamper the investigation.

Hence, the application may be dismissed.

7. The prosecution allegation against the petitioner is that, on 1.4.2024, he used a gun and shot the victim, who suffered a punctured wound. The said accusation stands prima facie corroborated by the Accident Register cum Wound Certificate produced by the learned Public Prosecutor. However, the said matter is to be investigated and decided at the time of trial.

8. Recently, in Srikant Upadhyay v. State of Bihar [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has observed in the following lines:

“8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679).

xxx xxx xxx 24.We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cas