O R D E R

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 2nd accused in Crime No.526/2024 of the Hill Palace Police Station, Ernakulam, which is registered against two accused persons, for allegedly committing the offence punishable under Section 381 r/w Section 34 of the Indian Penal Code (in short, 'IPC').

3. The concise case of the prosecution is that: on

11.06.2024, between 9:00 and 9:30 hours, the 1st accused had committed theft of 13 sovereigns of gold ornaments from the residence of the defacto complainant. Then, the 2nd accused assisted the 1st accused to sell the gold ornaments and they appropriated the consideration received. Thus, the accused have committed the above offence.

4. Heard; Sri.C.A.Chacko, the learned counsel appearing for the petitioner and Smt.Pushpalatha M.K., the learned Public Prosecutor.

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 petitioner has been implicated in the crime only on the basis of the alleged confession made by the 1st accused. The petitioner is a 23 year old boy 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 opposed the application. She submitted that there are incriminating materials to substantiate the petitioner's involvement in the crime. The investigation has revealed that the petitioner has an active role in disposal of the stolen property. The petitioner's custodial interrogation is necessary and recovery is to be effected. By Annexure-A1 order a similar application filed by the petitioner was dismissed by the Court of Session, Ernakulam. Hence, the application may be dismissed.

7. The prosecution allegation is that the 1st accused had committed theft of gold ornaments from the house of the defacto complainant and the petitioner had assisted the 1st accused to sell the gold ornaments.

8. On an evaluation of the materials on record, it can be gathered that there are incriminating materials to substantiate the petitioner's involvement in the crime. However, these are all matters to be investigated and ultimately decided at the time of trial.

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). 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 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 power, the Court concerned has to be very cautious as the grant of interim protection or pr