Raghubar Dayal, J.

[1] This is an application by the State of Uttar Pradesh for the cancellation of the bail granted to Kailash by the Sessions Judge on 3-12-1953 when a case under Sections 366 and 368, Penal Code, was under investigation with the police of Farrukhabad.

By 3-12-1953 the police had not been able to arrest Kailash. Kailash himself did not appear before the Magistrate having jurisdiction over the case, or before the Sessions Judge of Farrukhabad. An application was filed on his behalf before the Sessions Judge praying for bail and stating the reason why he could not appear in Court and why he should be given bail.

The learned Additional Sessions Judge was of opinion that the circumstances were such that the accused could not surrender. He allowed him: bail to the satisfaction of any first class Magistrate having jurisdiction.

It is contended for the State that the learned Sessions Judge had no jurisdiction to pass this order granting bail and that, therefore, this order should be cancelled.

The question to decide then is whether the learned Sessions Judge could grant bail to Kailash, who had neither been arrested nor detainee by the police nor had appeared in Cou