H.C.P. Tripathi, J.
1. This revision is directed against an order of the learned Additional Sessions Judge of Mainpuri, directing each of the applicants to pay a sum of Rs. 500/. as penalty for the forfeiture of their surety bonds.
2. Applicants had stood sureties in the amount of Rs. 2000/- each for one Daya Ram who was an accused in the Sessions Trial No. 28 of 1962 pending before the Sessions Court at Mainpuri. 22nd of July 1963 was the date fixed for hearing of the trial but Daya Ram did not appear in Court. On that date his sureties, the two applicants, filed an application before the learned Sessions Judge stating therein that Daya Ram had been in jail since the last 1 1/2 years in connection with a case which had ended in his conviction from the Court of Sessions at Fatehgarh and that they had come to know that while he was being escorted by the police from District Jail Fatehgarh to his Court in connection with the case he escaped from their custody and disappeared. The applicants, therefore, prayed that, as Daya Ram had escaped from the custody of the police, it was beyond their control to produce him in Court and the notice issued to them for producing him be discharged.
3. On July 25,1963, the learned Sessions Judge passed an order, the relevant portion of which reads Notices were duly served on the sureties to produce the accused Daya Ram on 22nd July, 1963. The accused was not produced on that date, but the sureties have moved an application...as the sureties did not produce the accused in spite of notice, the surety bonds 'are forfeited. The sureties are called upon to show cause...the application given by the sureties will be considered along with the explanation, if any, given by them for not producing the accused on the date fixed.
Thereafter the impugned order was passed by the learned Sessions Judge on September 11, 1963.
4. From the order under revision it is clear that while Daya Ram was being brought under police escort from Fatehgarh Jail to Mainpuri he jumped from train and ran away and he is absconding since then. This fact was brought to the notice of the learned Sessions Judge on the 22nd of July, 1963 which was the date fixed for the presence of Daya Ram in his Court by the applicants. It was, therefore, the duty of the learned Sessions Judge to have made inquiries about this fact and them to have passed some suitable order regarding the forfeiture of the surety bonds. It is really strange that instead of following this obvious procedure, the learned Sessions Judge forfeited the bonds and postponed the consideration of the explanation offered by the applicants for their failure to produce Daya Ram in Court to a later date.
5. In his order the learned Sessions Judge has also observed that 'here on the date on which the accused was to be produced in this Court, he was not n confinement in any jail and it cannot be said that sureties could not have produced him.' This observation is in direct conflict with his earlier observation in the order that the allegation of the applicants that Daya Ram escaped from police custody while being escorted to his Court had not been controverter on behalf of the State. If Daya Ram was in jail and was being escorted by the police from Fatehgarh jail to Mainpuri on 22nd of July, 1963, how could the learned Judge observe that he was not in confinement in any jail on that date is not comprehensible.
6. I am, therefore, satisfied that on the finding given by the learned Judge that Daya Ram had escaped from police custody while he was being brought from District Jail, Fatehgarh to Mainpuri, the surety bonds furnished by the applicants for his production in Court could not be forfeited as it was not possible for them to have produced Daya Ram on that date.
7. Accordingly, I allow this revision, set aside the order of the learned Sessions Judge dated September 11,1963 and discharge the surety bonds given by the applicants.