ORDER

This Bail Application is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita.

2. Petitioners are accused Nos.1 and 2 in Crime No.1322/2024 of Alappuzha North Police Station. The above case is registered against the petitioners and others alleging offences punishable under Sections 126(2), 296(b), 118(1) and

3(5) of the Bharatiya Nyaya Sanhita (for short, BNS).

3. The prosecution case is that, on 08.09.2024 at

4:45 pm, the accused Nos.1 to 3, in furtherance of their common intention, attacked the defacto complainant's son Arun and his brother's son Ani and Paul. It is alleged that the 1^st accused used weapon and the main overt act is from the 1^st accused.

4. Heard counsel for the petitioners and the Public Prosecutor.

5. The counsel for the petitioners submitted that there is no fracture and only offence under Section 118 (1) of BNS is there in the FIR. The counsel submitted that the petitioners are ready to abide any conditions if this Court grant them bail. The Public Prosecutor opposed the bail application and submitted that the offence under Section 118(2) of BNS is subsequently added. It is also submitted that the 1^st accused has criminal antecedents and he is involved in two other cases. It is also submitted that the 1^st accused used the weapon and inflicted fractal injury.

6. After hearing both sides, I am of the considered opinion that the 1^st petitioner is not entitled anticipatory bail. He can surrender before the jurisdictional court and file bail application, and if such a bail application is filed, the jurisdictional court will consider the same in accordance with law. As far as the 2^nd petitioner is concerned, he has no serious overt act. He can be released on bail. 7. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in Chidambaram. P v Directorate of Enforcement [2019 (16) SCALE 870], after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.

8. Recently the Apex Court in Siddharth v State of Uttar Pradesh and Another [2021(5)KHC 353] considered the point in detail. The relevant paragraph of the above judgment is extracted hereunder:

“12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. (Joginder Kumar v. State of UP and Others (1994 KHC 189: (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR 1994 SC 1349:

1994 CriLJ 1981)) If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.”

9. In Manish Sisodia v. Central Bureau of Investigation [2023 KHC 6961], the Apex Court observed that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case.

10. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, I think the 2^nd petitioner who is the 3^rd accused can be released on bail.

Therefore, this Bail Application is allowed in part with the following directions:

1. The 1^st petitioner can surrender before the jurisdictional court and file bail application, and