Anticipatory bail is an extraordinary remedy granted in exceptional circumstances, and the necessity for custodial interrogation must be established.

ORDER

The application is filed under Sec.482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, ' BNSS ') for an order of pre-arrest bail.

2. The petitioners are the accused 1 and 2 in Crime No.342/2024 of the Chittarikal Police Station, Kasargod, which is registered against the accused, for allegedly committing the offences punishable under Sections 189 (2), 191(2), 191(3), 126(2), 115(2), 118(1) and 110 r/w Sec. 190 of the Bharatiya Nyaya Sanhitha, 2023 (in short, 'BNS').

3. The gist of the prosecution case, is that: on 13.08.2024, the accused, in prosecution of their common intention, trespassed into the house of the defacto complainant and the 2^nd accused attacked him with a wooden stick. The 1^st accused also threw a wooden stick on the defacto complainant and he suffered serious injuries. Thus, the accused have committed the above offences.

4. Heard; Sri.Alex K.John, the learned counsel appearing for the petitioners and Smt.Seetha S, the learned Senior Public Prosecutor.

5. The learned counsel for the petitioners submitted that the petitioners are innocent of the accusations leveled against him. There is no material to substantiate their culpability in the crime. The Investigating Officer has deliberately incorporated Section 110 of the BNS to see that the petitioners are arrested. The petitioners are law abiding citizens without any criminal antecedents. 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 opposed the application. She submitted that there is specific overt act attributed against the 2^nd accused, who assaulted the defacto complainant with a wooden stick and he suffered serious injuries. She made available the accident register cum wound certificate issued by the Payyannur Co- operative Hospital dated 13.08.2024 to establish that the defacto complainant suffered a wound of 4x1 cm over his parietal region. She stated that the custodial interrogation of the 2^nd accused is necessary and recovery is to be effected for the proper and full investigation of the crime. Therefore, the application may be dismissed. Nonetheless, she did not dispute the fact that the only allegation against the 1^st petitioner is that he threw a stick on the defacto complainant.

7. The prosecution case is that the petitioners had wrongfully restrained the defacto complainant and the 2^nd accused assaulted him with a stick and he suffered serious injuries on his head. The said allegation prima facie stands corroborated by the wound certificate referred to above. Nonetheless, the culpability of the petitioners is a matter to be investigated and decided after trial.

8. 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 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