This is a proceedings initiated suo motu under Section 439(2) of the Code of Criminal Procedure for canceling the pre-arrest bail granted to the respondent.

2. The facts necessary for the disposal of the case is as follows: The respondent Vishnu, S/o. Jayashree is the 2nd accused in Crime No.221 of 2004 of Pazhayannur Police Station. 1st accused in that case is one Sulaiman, S/o. Saithumohammed. The accused, it is alleged, in furtherance of a common intention of committing theft of cement stored for the construction of a building of the defacto complainant Veerankutty, committed theft of one bag of cement from the construction site and placed the same in an autorickshaw. Before they could steal another packet of cement, the defacto complainant came to the spot. On seeing the defacto complainant, the accused abandoned not only the cement bag they had stolen, but also the autorickshaw and fled away from the scene of occurrence. Based on the F.I. statement given by the defacto complainant, Crime No.221 of 2004 of Pazhayannur Police Station under Section 379 read with Section 34 of Indian Penal Code was registered against the respondent and Sulaiman.

3. 1st accused Sulaiman filed B.A.5187 of 2004 before this court under Section 438 of the code of Criminal Procedure for the relief of pre-arrest bail on 7.9.2004. The case was posted to 13.9.2004 for instructions. On that day, the case was adjourned for production of Case Diary to 20.9.2004. On that day, a learned Single Judge of this Court dismissed that bail application holding that it was not necessary at that stage to permit the 1st accused to arm himself with any direction under Section 438 Cr.P.C.

4. The respondent (2nd accused) filed B.A.5479 of 2004 before this Court under Section 438 of the Code of Criminal Procedure for the relief of pre-arrest bail on 20.9.2004. The same was posted for instructions to 27.9.2004. A learned Single Judge of this Court dismissed the Bail Application on 27.9.2004 holding that for the proper investigation of the case, the petitioner (respondent herein) has to be interrogated and grant of anticipatory bail would hamper the smooth course of investigation. It was also observed that if the petitioner surrenders before the learned Magistrate having jurisdiction and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must dispose of the application for bail on merits and expeditiously on the date of surrender itself, unless compelling and exceptional reasons were there.

5. On 24.11.2004, the 1st accused filed a second application for bail as B.A.6994 of 2004 before this Court for anticipatory bail with following averments. After the dismissal of B.A.5187 of 2004 by this Court, the petitioner surrendered before the Judicial First Class Magistrate and sought for regular bail. But, the learned Magistrate was reluctant to pass any order as his name does not appear in F.I.R. or connected records. The 2nd accused, after the dismissal of his application by this Court, filed an application for pre-arrest bail before the Sessions Court as Crl.M.C.2099 of 2004 and the same was dismissed on 12.10.2004 (Actually Crl.M.C.2099 of 2004 was allowed). Subsequently, the petitioner filed Crl.M.C.2266 of 2004, but the same was dismissed by the learned Sessions Judge on 21.10.2004. Hence, the 2nd application for the relief of anticipatory bail.

6. When B.A.6994 of 2004 came up for hearing on 2.12.2004, it was brought to the notice of this Court that the respondent herein (2nd accused) was granted anticipatory bail by the Sessions Court in Crl.M.C.2099 of 2004. This Court directed the registry to call for a report from the Sessions Court as to whether the respondent had disclosed the factum of dismissal of B.A.No.5479 of 2004 by this Court in the Bail Application filed before the Sessions Court. The learned Sessions Judge forwarded a report stating that Crl.M.C.2099 of 2004 was filed by the responden