ORDER

1. Heard the parties.

2. Leave granted.

3. This appeal is directed against the order of the High Court passed on 11-5-2005 rejecting the bail application filed by the applicant under Section 439 CrPC mainly on the question of non-maintainability of the application. According to the High Court the petition under Section 439 CrPC is not maintainable as the petitioner was not in custody.

4. From the bail application filed on 19-4-2005 by the appellant under Section 439 CrPC, it clearly appears that on that day the appellant was in custody as he was on interim bail for 15 days from 13-4-2005 and his application could have been considered on merits instead of dismissing the same on the ground of non-maintainability.

5. In the view that we have taken, the impugned order of the High Court is set aside and the matter is remitted back to the High Court to consider the matter afresh on merits. The application filed by the appellant under Section 439 CrPC is now restored before the High Court and shall be disposed of on merits. The appellant is directed to appear before the High Court on 21-4-2006. The appellant is granted bail till 21-4-2006.

6. With the aforesaid direction this appeal is allowed.

Appeal allowed.

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