Pre-arrest bail may be warranted only with a clear absence of culpability, as determined by the overt acts alleged against the accused.

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

2. The petitioners are the accused 1 and 5 in crime No.174/2024 of the Vadakancherry Police Station, Palakkad, registered against the accused ( six in number), for allegedly committing the offences punishable under Secs 143, 147, 148, 323, 324 and 308 read with Sec.149 of the Indian Penal Code ( for short, IPC ).

3. The gravamen of the prosecution allegation is that:

on 10.2.2024, at around 21.00 hours, the accused, in BA No.1641 of 2024 prosecution of their common intention, formed themselves into an unlawful assembly with deadly weapons, and while the injured was passing through the road, the first accused uttered obscene words at him and broke a beer bottle and attempted to stab him. It was only because the injured warded off the attack, he sustained an injury on his right thumb. The other accused chased the injured and the second accused hit him with a plant pot, the accused 3 to 5 fisted him and the sixth accused hit him with a steel stool and caused an injury on his forehead. Thus, the accused have committed the above offences.

4. Heard; Sri.M.Vivek, the learned counsel appearing for the petitioners and Smt.Shynimol V.O, the learned Public Prosecutor.

5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The Investigating Officer has deliberately BA No.1641 of 2024 incorporated Sec.308 to deny bail to the petitioners. The accused 2 to 5 have already been enlarged on bail as per the orders in BA No.1719 and 1782 of 2024. The accident register cum wound certificate would show that the injured did not suffer any serious injuries as alleged by the prosecution so as to attract the offence under Sec.308 of the IPC . Therefore, the petitioners’ custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed.

6. The learned Public Prosecutor seriously opposed the application. She submitted that there is specific overt act alleged against the first accused, who broke a beer bottle and attempted to murder the injured. It is only because the injured warded off attack that he suffered an injury on his right hand.

She made available the accident register cum wound certificate as well as the medical certificate issued by the Government Medical College, Thrissur, to substantiate the soft tissue injury BA No.1641 of 2024 suffered on his right hand. She stated that the first petitioner’s custodial interrogation is necessary and recovery is to be effected. If the first petitioner is granted an order of pre-arrest bail, it would certainly hamper the investigation. Nonetheless, she conceded to the fact that there is no specific overt act alleged against the second petitioner, who is now ranked the fifth accused in the crime. She prayed that the application may be dismissed.

7. On an evaluation of the materials on record, it can be seen that there is a specific overt act alleged against the first petitioner/ first accused, who broke a beer bottle and attempted to murder the injured. It is only because the injured warded off the attack that he suffered an injury on his right hand. The medical records prima facie show that the accusations levelled against the first petitioner is probable and injury is tallying with the accusations of the prosecution. On the other hand, I do not find any specific overt act alleged against the second BA No.1641 of 2024 petitioner/fifth accused so as to attract the offence under Sec.308 of the IPC . Therefore, I hold that the second petitioner is entitled to an order of pre-arrest bail.

8. On an anxious consideration of the facts, the materials placed on record and the rival submissions made across the Bar and the findings rendered above, I am of the view that the first petitioner has not made out any exceptional ground to invoke the extr