Anticipatory bail is an extraordinary remedy, granted only in exceptional cases, requiring careful judicial discretion based on the seriousness of allegations and necessity for custodial interrogation.

ORDER

Dated this the 28^th day of October 2024 The application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita , 2023 (for short ‘ BNSS ’), for an order of pre-arrest bail.

2. The petitioner is the 1^st accused in Crime No.732/2024 of the Kalpakanchery Police Station, Malappuram, which is registered against two accused persons for allegedly committing the offences punishable under Sections 341 , 323, 324, 326 and 506 r/w Section 34 of the Indian Penal Code , 1860 (for short ‘ IPC ’).

3. The gist of the prosecution case is that: on 29.06.2024, at around 12:00 hours, the two accused person (father and son), in furtherance of their common intention, had wrongfully restrained the defacto complainant, and the 1^st accused fired at the defacto complainant with an air gun and hit him on his head with a sword and the 2^nd accused attacked him with a stick, and the defacto complainant suffered a fracture of his right thumb. Thus, the accused have committed the above offences.

4. Heard; Smt.Sulfia M.A, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor.

5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. In fact, it was the defacto complainant who trespassed into the house of the accused persons and attempted to assault them. There is no incriminating material to establish that the petitioner has committed the offence under Section 326 of the IPC . The Investigating Officer has deliberately incorporated the said offence to see that the petitioner is arrested and incarcerated. The petitioner's custodial interrogation is not necessary and no recovery is to be effected.

Hence, the bail application may be allowed.

6. The learned Public Prosecutor seriously opposed the application. He submitted that there are incriminating material to substantiate the petitioner’s involvement in the crime. There has been long standing civil disputes between the parties. The specific overt acts alleged against the accused 1 and 2 are that they both assaulted the defacto complainant with a sword and a stick. He made available the accident register cum wound certificate of the defacto complainant dated 04.07.2024 issued by the Nadakkavil Hospital, Valanchery, to substantiate that the defacto complainant had suffered a fracture on his distal phalanx at interphalangeal joints right thumb and also a wound on the scalp. He stated that the petitioner’s custodial interrogation is necessary and recovery is to be effected for the full and proper investigation of the crime. Eventhough the petitioner had filed a similar application before the Court of session, Manjeri, the same was dismissed by Annexure A8 order. Therefore, the application may be dismissed.

7. The prosecution allegation is that, the petitioner and the 2^nd accused had wrongfully restrained the defacto complainant, and the petitioner attacked the defacto complainant with a sword and the 2^nd accused attacked him with a stick. On a perusal of the treatment records referred to above, prima facie, I find that the defacto complainant had suffered a fracture of his distal phalanx as observed in the treatment record. Nonetheless, that is a matter to be investigated and ultimately decided after trial. The petitioner had filed a similar application before the Court of Session, Manjeri, which was dismissed by Annexure A8 order.

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.