1. We are unable to accept the view taken in the case quoted from Weir's Law of Offence, Vol. I, page 202, and relied on by the Sub-Magistrate. We take it that the law is correctly stated in the case of Queen Empress v. Muppan I.L.R. (1895) M. 401 in the following terms:
A man legally arrested for an offence must submit to be tried and dealt with according to law. If he gains his liberty before he is delivered by due course of law, he commits the offence of 'escape.' It has been long established that even when the escape is effected by the consent or the neglect of the person that kept the prisoner in custody, the latter is no less guilty, as neither such illegal consent nor neglect absolves the prisoner from the duty of submitting to the judgment of the law (1 Russ. 5th Edition p. 567; Roscoe, 11th Edition, p. 453; and Bishop's Criminal Law 7th Edition, Section 1104).
2. The fact that the peon who had the custody of the accused went to sleep, did not, in any way, put an end to the custody, or affect the accused's duty to submit to the judgment of the law.
3. We must, therefore, set aside the acquittal and direct the Sub-Magistrate to restore the case to his file and to try it afresh in accordance with law.