KASLIWAL, J. - (1.) THIS appeal is directed against the order of the learned Sessions Judge, Jhalawar, dated 10th August, 1981, where by he forfeited an amount of Rs 3,000/- by way of surety furnished by the appellant for the accused Raghunath in Criminal Appeal No. 45 of 1978.
(2.) THE accused Raghunath was convicted by Chief Judicial Magistrate for an offence u/sec. 397 I. P. C. and sentenced to six months imprisonment vide order dated 11th April, 1978. THE accused Raghunath preferred an appeal before the learned Sessions Judge Jhalawar and he was released on bail urindg the pendency of the appeal. THE appellant Gulab Khan stood as surety for Raghunath and executed a surety bond in the sum of Rs. 3,000/ -. THE accused did not appear in the court on 14th December. 1979, and as such an order was passed for cancellation of the bail bonds. A notice to show cause was given to the appellant. THE appellant in pursuance to the show cause notice submitted an explanation that the accused Raghunath had died and as such it was not possible for him to produce the accused. THE father of the accused was also produced in evidence who stated that his son had died in river due to drowning. THE learned Sessions Judge did not accept the explanation given by the surety and ordered for forfeiture and realisation of the full amount of surety given by the appellant. Heard learned counsel for the petitioner and the learned Public Prosecutor for the State. It is contended by the learned counsel for the appellant that the accused Raghunath had died by drowning in the river and as such there was no question of producing the accused in the court and learned Sessions Judge was not right in forfeiting the bond. A certificate of the Gram Panchayat, Padl Khati has also been produced in this court in which the Sarpanch has certified that Raghunath had died about 1-1-1/2 years back. On as how cause notice given to the appellant he had submitted a reply taking a clear stand that Raghunath accused had died by drowning in the river. He had also produced Prithvi Singh, father of the accused, who had also stated that his son Raghunath had died by drowning in the river. Inspite all efforts taken by the prosecution, whereabouts of accused Raghunath are not known and he has not been apprehended so far. A certificate of the Sarpanch of Gram Panchayat Padli Khati has also produced in this court to show that Raghunath accused had died by drowning in the river about 1-1/2 years back. In these circumstances it cannot be said that the surety appellant was in any manner negligent in not producing the accused in the court or was in collusion with the accused. The prosecution has failed to proved that Raghunath is still alived and in these circumstances there is no reason to disbelieve the stand taken by the surety appellant. In the result this appeal is allowed. The order of the learned Sessions Judge, Jhalwaar, dated 10th August, 1981, is set aside and the notice to show cause' given to the surety appellant, as to why the surety bond may not be forfeited, is discharged. . ;