O R D E R

The application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, for an order of pre-arrest bail.

2. The petitioners are the accused 1 to 4 in Crime No.461/2024 of the Varapuzha Police Station, Ernakulam, which is registered against the accused for allegedly committing the offences punishable under Sections 115(2), 118(1), 351(3) and 110 read with 3(5) of the Bharatiya Nyaya Sanhita, 2023 (‘BNS’, for the sake of brevity).

3. The crux of the prosecution case is that:

on 02.07.2024, at around 01:00 hours, the accused, in furtherance of their common intention and due to their previous animosity towards the defacto complainant, the first accused uttered obscene words at the defacto complainant and threatened to finish him off.

Accordingly, the first accused waved a spade against the defacto complainant, which he resisted, but he fell down into the nearby stream. At that time, the 1st accused stabbed the defacto complainant on his head with the sharp edged portion of the spade, and he suffered injuries. At that point of time, the accused 2 to 4 reached the scene of occurrence, and the 1st accused caught hold of the neck of the defacto complainant and immersed him into the water, and the 2nd accused, with an intention to cause his death, assaulted him with a chopper, the 3rd accused kicked him on his abdomen and beat him with an iron stick, and the 4th accused intimidated the defacto complainant that she will finish him off. Thus, the accused have committed the above offences.

4. Heard; Sri. John Sebastian Ralph V., the learned Counsel appearing for the petitioner, Sri. C. S. Hrithwik, the learned Senior Public Prosecutor and Sri. V.K Sajeevan, the learned Counsel appearing for the intervenor/ defacto complainant.

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 incorporated Section 110 of the BNS to see that the petitioners are arrested and incarcerated. The petitioners 1 & 2 are aged 77 and 73, respectively. There are long standing civil disputes between the petitioners and the defacto complainant. There are also cases and counter-cases registered against the parties, which are pending before the Jurisdictional Magistrate. In fact, it was the defacto complainant who attacked the 1st petitioner, and Annexure 2 FIR was registered against the defacto complainant for committing the predicate offence under Section 115(2) of the BNS. Annexure 2 was registered on 02.07.2024 at around 22:15 hours. Subsequent to the registration of FIR, the defacto complainant got Annexure 1 FIR registered on 03.07.2024 at 02:42 hours in connection with the very same incident. The learned counsel for the petitioner also drew the attention of this Court to the bail objection report filed by the Investigating Officer to substantiate the nature of allegations made by the defacto complainant and Annexure 3 accident register cum wound certificate of the defacto complainant to substantiate the minor injuries suffered by the defacto complainant. He submitted that the above materials establish that the offence under Section 110 of the BNS will not be attracted. In the FIS given by the defacto complainant, it is admitted that there are suits pending between the parties before the competent Civil Court. It is only to browbeat the petitioners and pressurise them to yield to the defacto complainant’s illegal demands, that the present FIR is registered. The bail objection report also shows that the material objects have already been recovered. The petitioners’ custodial interrogation is not necessary. Other than the case and counter-case between the parties, the petitioners do not have any criminal antecedents. Hence, the application may be allowed.

6. The learned Public Prosecutor opposed the application. He submitted that the petitioners have criminal antecedents. The investigation in the case is still in p