The power to grant anticipatory bail is extraordinary and should only be exercised in exceptional circumstances, with careful consideration of the facts and potential impact on justice.

ORDER

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

2. The petitioner is the 1st accused in Crime No.461/2024 of the Neeleswaram Police Station, Kasaragod, which is registered against two accused persons for allegedly committing the offence punishable under Section 420 read with Section 34 of the Indian Penal Code (in short, 'the IPC ').

3. The gist of the prosecution case is that: the two accused persons, in furtherance of their common intention, had taken the car bearing Reg.No.KL 56 F 0855 from the ownership and possession of the defacto complainant and the 1st accused gave it to the 2nd accused. However, the accused have failed to return the car to the defacto complainant. Thus, the accused have committed the above offences.

4. Heard; Sri.T.Madhu, the learned counsel appearing for the petitioner, Smt.Seetha S., the learned Senior Public Prosecutor and Sri.K.S.Arunkumar, the learned counsel appearing for the intervenor/defacto complainant.

5. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations leveled against him. There is no material to substantiate the petitioner's culpability in the crime. The car was taken away by the 2nd accused. The petitioner does not know the whereabouts of the 2nd accused. The petitioner is a law abiding citizen without any criminal antecedents. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed.

6. The learned Public Prosecutor and the learned counsel appearing for the intervenor seriously opposed the application. They submitted that it was the petitioner who took away the car from the defacto complainant and gave it to the 2nd accused. The petitioner and the 2nd accused have acted in furtherance of their common intention. The car is not yet recovered. The 2nd accused is absconding. If the petitioner is granted an order of pre-arrest bail, it will hamper the investigation. Hence, the application may be dismissed.

7. The prosecution allegation is that, the petitioner had taken away the car of the intervenor and had given it to the 2nd accused. The 2nd accused had absconded with the car. His whereabouts are not traced out.

8. On a careful analysis of the materials on record, it is evident that it was the petitioner who had taken the car of the Intervenor and given to the 2nd accused. Therefore, prima facie, I find the petitioner's involvement in the crime.

9. 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).

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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