( 1. ) THIS revision petition under sections 435 / 439 of the Code of Criminal Procedure by surety-applicant Nageshwar of Singhpuri, Ujjain is directed against the order dated 17-2-1965 passed by Shri R. K. Tikku, District magistrate, Ujjain in Miscellaneous Criminal Case No. 9 of 1964 ordering the forfeiture of the surety bond dated 27-4-1960 for Rs. 2,000 executed by the applicant.

( 2. ) THE controversy in question arises as under. On 28-11-1957 one anandilal was convicted under section 302, Indian Penal Code by the Additional Sessions Judge, Rajgarh and he was undergoing a sentence of 20 years rigorous imprisonment at Bherugarh Jail, Ujjain On 15-1-1960 the said convict made an application f r his temporary release (parole) under section 21 of the M B. Prisoners Act, 1950 (Act No. 56 of 1950) for ten days commencing from 1-2-1960 to 10-2-1960 which was recommended by the Superintendent, jail to the District Magistrate, Ujjain, who is the releasing authority, on 16-1-1960. The District Magistrate, Ujjain forwarded it to the Superintendent of Police, Ujjain on 20-1-1960 asking for bis report. The Superintendent of police, Ujjain made a report on 28-1-1960 stating that he had no objection for the temporary release asked for. On receiving this report, the District magistrate, Ujjain passed an order on 1-2-1960 stating that the convict may be released on certain conditions and one of the conditions was that he should furnish his personal bond for Rs. 2,000 and a surety for the same amount.

( 3. ) THE record of the case does not show that the convict furnished his personal bond. However, the applicant Nageshwar filed his surety bond for rs 2,000 dated 27-4-1960 undertaking to produce the convict at the Jail "bandigrah par upasthit karungd" after the expiry of the parole, but if he failed to do so he would deposit Rs. 2,000 in the Court "agar aisa na kar saka to apane ghar dwara Rs. 2,000 do hajar rupye rakam jamanat nyayalaymen dakhil karunga". The heading of this surety bond shows that it was executed in favour of the District Magistrate and Collector, Ujjain. The surety bond was accepted after verification on 30-4-1960.

( 4. ) ACCORDINGLY the District Magistrate, Ujjain, in his capacity as releasing authority issued a warrant dated 2-5-1960 for the temporary release of the convict under section 21 of the Madhya Bharat Prisoners Act, 1960 (Act No 56 of 1950 ). The parole was for ten days and two days in addition were allowed to the convict for his journey to and ho. He was accordingly released on parole on 3-5-1960 and he was to appear on 14-5-1960 in the jail on the expiry of the parole, but he did not appear on that date nor has he appeared probably till today. In other words the convict absconded and all attempts by the police to re-arrest him failed.

( 5. ) ON 18th August, 1964 a show cause notice to the surety-applicant was issued by the District Magistrate under section 514 of the Code of Criminal procedure stating that the surety bond executed by him on 23-4-1960 had been forfeited as the convict was not produced by him on the expiry of the parole and asked him to pay the amount Rs. 2,000 or to show cause why it should not be paid. The applicant filed his statement dated 31-8-1964 raising several objections contending that the said surety bond was not liable to be forfeited for variety of reasons. The learned District Magistrate rejected all these objections by his order dated 17-2-1965, which has been wrongly characterised by him as an appeal, which it was not, as the same was an original order passed by him Being aggrieved by this decision, he preferred this revision petition direct to this Court on 28-6-1965.

( 6. ) IT came up for motion hearing on 16-7-1965 before Sen J. who ordered that the record of the lower Court be sent for and then the case be put up for further action. The record was received and the case was placed before tare J. on 6-8-1965, who after hearing Shri Chhazed, learned counsel for the applic