IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 14TH JULY 2008 / 23RD ASHADHA 1930 Bail Appl..No. 4535 of 2008() ----------------------------- AGAINST THE ORDER IN CMP 3953/2008IN C.C.NO.241/2003 OF J.M.F.C.-V,KOZHIKODE PETITIONER/ACCUSED:- ------------------------------------- ABDUL SALAM, S/O ASSAINAR, AGE 39/08, AYYANARI HOUSE, WEST BAZAR, AREEKKAD, CHERUVANNUR AMSOM, KOZHIKODE. BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENT : ------------- STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A.No. 4535 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of July, 2008 O R D E R Application for bail 2. petitioner was tried and convicted for offence under section 379 IPC by the Judicial Magistrate of the First Class-V, Kozhikode. In appeal, the learned Sessions Judge set aside the conviction and sentence and remanded the case for fresh disposal. Since the prosecution was given opportunity to adduce evidence, the petitioner filed a revision before this Court challenging the remand order. The revision was admitted and an interim stay was granted for one month. As per order dated 7-7-2008 in Crl.M.A. No.6757/2008, irrespective of the stay granted, it was also ordered that the learned Magistrate shall consider and pass final orders on the application for bail, if any, filed by the petitioner. 3. Accordingly, a bail application was filed before the learned Magistrate and the learned Magistrate dismissed the application observing that the learned Sessions Judge did not grant the bail to the petitioner and directed the Magistrate to issue production warrant to cause production of accused on 14-7-2008. The learned Magistrate also considered the BA 4535/08 -2- observations in Crl.M.A. No.6757/2008 of this Court and dismissed the application. 4. The learned counsel for the petitioner pointed out that the conviction and sentence were set aside by the learned Sessions Judge. The petitioner was refused bail by the learned Sessions Judge on the ground that the petitioner is involved in other cases of similar nature. The petitioner is not an accused in any other theft case and refusal to grant bail to the petitioner on that ground is not proper or legal, especially after having found that the petitioner is not guilty and the conviction and sentence having been set aside. 5. However, it is seen from order of the learned Magistrate that on the date on which the judgment was pronounced, the petitioner escaped from the custody of police and he was arrested by the police and he is in custody. The learned counsel for the petitioner submitted that the petitioner was granted bail in that case on 8-7-2008 in C.M.P.No.2926/2008. The learned counsel for the petitioner also submitted that the petitioner did not abscond, but after the conviction, he was present in the court till 5.30 p.m., but he was instructed to go and hence he left the court. Bail was granted to the petitioner in that case by the same learned Magistrate on the same date on which the application for bail in the present case was dismissed. It is BA 4535/08 -3- submitted that the Magistrate Court's hands were tied because of the observations of the learned Sessions Judge, which are factually incorrect. That was the only reason for rejection of bail by the learned Magistrate, it is submitted. 6. On hearing both sides, I am satisfied of the submissions made by the learned counsel for the petitioner. The learned Public Prosecutor also submitted that the petitioner is not involved in any other theft case. Taking all the facts and circumstances into consideration, I find that the learned Sessions Judge committed a serious error in refusing bail to the petitioner, that too, setting aside the conviction, by holding that the petitioner is involved in similar cases, which is not factually correct. A person's liberty is not to be meddled up with such case, without application of mind. I do not intent to make any further observation. 7. The petitioner shall be released on bail without any delay, on his executing a bond for Rs.25,000/- with two solvent sureties each for the like amount to the satisfaction of the Judicial Magistrate of the First Class-V, Kozhikode. The application is allowed. K. HEMA, JUDGE. mn. BA 4535/08 -4-