JUDGMENT 1. - Admit. Issue notice. Since this appeal is to be decided only on the question of sentence with the common consent of the parties, it is hereby decided accordingly. 2. This appeal has been filed against the judgment dated June 7, 1985 and consequential orders of the same day as well as dated June 21, 1985, passed by Sessions Judge, Bharatpur in a case under section 324 IPC. 3. The accused-appellant was committed to his court for standing trial for an offence under section 307 IPC for having committed the crime of causing knife injuries to one Rajendra on August 1, 1983 The accused was read over charge for aforesaid offence to which he denied. Thereafter the prosecution in support of its case examined 8 witnesses. The accused ultimately, after trial, was found guilty for offence under section 324 IPC and instead of passing sentence against him the learned Judge had extended to the accused-appellant the benefit of section 4 of the Probation of Offenders Act as the age of the accused was 18 years and subsequently the accused-appellant was released on the same day as he had executed a bond in the sum of Rs. 4,000/-. He was also directed to pay a compensation of Rs. 400/- which he did deposit within time granted to him. i. e., on June 13, 1985. When the accused was within the period of servileance his surety took him to the court on June 21, 1985 and expressed before the learned Sessions Judge that he wants to withdraw the surety. The learned Sessions Judge discharged the surety and directed the arrest of the accused and instead of continuing him on probation he passed a sentence of imprisonment for a period of six months on June 21, 1985, itself. It is thereafter that the accused after feeling aggrieved has come to this court in this appeal 4. I have perused the judgment of the learned Sessions Judge on merits where he has arrived at the findings holding the accused guilty for offence under section 324 IPC. I do not find any reason to interfere in the same In fact the learned counsel for the appellant himself has not seriously challenged the conviction of the accused for offence under section 324 IPC and in my opinion rightly so. I do not find any reason to interfere in the same In fact the learned counsel for the appellant himself has not seriously challenged the conviction of the accused for offence under section 324 IPC and in my opinion rightly so. However, the grievance of the learned counsel is that the learned Sessions Judge has acted against the fundamental principle of Audi Alteram Partem. He has convicted the accused and sent him to jail without affording him any opportunity of explaining circumstances in which the surety has withdrawn. On June 21, 1985, it is submitted by the learned counsel, that his surety played fraud upon the appellant and took him to the court where it is expressed before the learned Sessions Judge that he wants to withdraw as surety. In that eventuality the learned Sessions Judge ought to have given sufficient time to the appellant to have produced another surety or he could have directed the release of the accused-appellant on his executing personal bond alone without insisting on sureties. It was also open to the learned Judge that he could have sent the accused to jail for time being i. e. till fresh surety was produced but could not have withdrawn the benefit of the provisions of Probation of Offenders Act which had already been extended to him. There were only two conditions in which the said benefit could be withdrawn, firstly if the accused had violated conditions of the bond, or secondly he had committed breach of peace or would have repeated similar offence. But that not having been done the order passed by the learned Judge on June 21, 1985 is patently illegal. 5. The learned Public Prosecutor appearing for the State could not justify the order passed by the learned Sessions Judge except submitting that once the surety intended to withdraw the only option left for the court was to have sent the accused to jail. 6. I have heard learned counsel for the parties and have perused the orders, dated June 7 and June 21, 1985. So far as the order, dated June 7, 1985 is concerned, the order convecting the accused appellant as well as granting benefit under the provisions of Probation of Offenders Act, are concerned, I am constrained to say that the order of the learned Judge is patently against the spirit in which the Probation of Offenders Act has been enacted. So far as the order, dated June 7, 1985 is concerned, the order convecting the accused appellant as well as granting benefit under the provisions of Probation of Offenders Act, are concerned, I am constrained to say that the order of the learned Judge is patently against the spirit in which the Probation of Offenders Act has been enacted. The entire scheme of the Act is to achieve the object underlying reformative theory of punishments and to keep the first offenders away from the hardened criminals much less the children of age of adolescence below 21 years Section 4 was specially enacted and it was made imperative on the courts that the court should not send an accused to jail unless the offence is punishable with death or imprisonment for life. The provisions of section 4 of the Probation of Offenders Act are mandatory as has been held by series of decisions of this court and Supreme Court. If the court is not inclined to give the benefit, then the reasons have to be assigned. Unfortunately the courts for a long time failed to give effect to the intention of the legislature and, therefore, Parliament in its own wisdom, while re-drafting the Code of Criminal Procedure, enacted section 360 Cr. P. C. which is similar to one under the Probation of Offenders Act. Section 361 Cr.P.C. was enacted for the purpose of ensuring that the courts are mindful about the statutory provisions of law and do not lightly take them. It was made imperative that in case they were not to extend the benefit they were obliged to assign reasons for the same. Both the provisions, i. e., in Probation of Offenders Act as well as in Section 360 Cr. P. C. aimed at reforming the accused persons and to make them respectable citizens, even to the extent that when Probation of Offenders Act was enacted the legislature provided a Protection to the persons who had been dealt with the Probation of Offenders Act by incorporating section 12 of the Act where the disqualification attached to the Convictions were removed. To do away with such an order simply because a surety for some reason or the other has chosen to withdraw was a serious question for the learned Judge to be answered. To do away with such an order simply because a surety for some reason or the other has chosen to withdraw was a serious question for the learned Judge to be answered. The learned Judge has not assigned any reason in his order while revoking the order under Probation of Offenders Act and sentencing the accused for a period of six months. The learned Judge has failed to take into consideration that passing such an order has the penal consequences and the accused has to remain in jail for such a long period without being furnished an opportunity to show cause or express the reasons for annoyance of the surety or of having a proper and fair opportunity for furnishing new surety bond. Once an application is moved for withdrawal of the surety it is obligatory upon the court to give sufficient time to the accused to reply the same. This is not only the requirement of the first principle of natural justice but is also requirement of section 123 (10) & 124 Cr.P.C. Sections 123 (10) and 124 Cr.P.C. are reproduced here in under : "Sec. 123 (10) - Any surety for the peaceable conduct or good behaviour of another person ordered to execute a bond under this Chapter may at any time apply to the court making such order to cancel the bond and on such application being made, the Court shall issue a summons or warrant, as if thinks fit, requiring the person for whom such surety is bound to appear or to be brought before it. Sec. 124 - Security for unexpired period of bond-(1) When a person for whose appearance a summon oi warrant has been issued under the proviso to sub-sec (3) of section 121 or under sub-section (10) of section 123, appears or is brought before the Magistrate or court, the Magistrate or Court shall cancel the bond executed by such person and shall order such person to give, for the unexpired portion of the term of such bond, fresh security of the same description as the original security. (2) Every such order shall, for the purposes of Sections 120 to 123 (both inclusive), be deemed to be an order made under section 106 or section 117, as the case may be. The aforesaid two provisions are the same which were section 126 and section 126 (a) Cr. P. C., 1898. (2) Every such order shall, for the purposes of Sections 120 to 123 (both inclusive), be deemed to be an order made under section 106 or section 117, as the case may be. The aforesaid two provisions are the same which were section 126 and section 126 (a) Cr. P. C., 1898. Section 10 of the Probation of Offenders Act reads as under : Section 10 - The provisions of sections 122, 126, 126-A, 106 - A, 511, 511-A, 511-B, and 515 of the Code shall, so far as may be, apply in the case of bonds and sureties given under this Act". A bare perusal of the aforesaid section makes the provisions of Sections 123 (10) and 124 Cr. P. C. applicable The latter part of Section 124 Cr. P. C. casts a duty on the court to ask the person to furnish fresh surety of the same description as that of the original for the unexpired period which means that there is no power express implied, vested in the court to send the accused to jail in case sureties intend to withdraw. An order of probation can only be withdrawn as mentioned aforesaid when conditions laid down in the order are flouted or the concession given to the accused is abused. I am, therefore, of the opinion that learned Sessions Judge has failed to give adequate and reasonable opportunity to the accused for appearing and attending the case against the application made by the surety and consequently acted contrary to the provisions of law in passing the sentence. It is also pertinent to mention here that an accused who has been given the benefit of provisions of Probation of Offenders Act cannot be deprived of the benefit except for compelling reasons much less in no case where nothing has been shown that the circumstances have compelled the court to withdraw the benefit. 7. There is yet another aspect of the matter that the legislators envisaged all sort of contingencies both in the Code of Criminal Procedure and the Probation of Offenders Act for such circumstances and it behoves the courts to go through those provisions before passing such an order particularly when this results in penal consequences in curtailing the liberty of a person which can only be academically cured subsequently. The accused-appellant has been in jail for more than a month because the learned Sessions Judge failed to look into the provisions of law and had not applied his mind to Secs 123 (10), 124 and 444 Cr. P. C. and section 10 of the Probation of Offenders Act. I have quoted Section 444 Cr. P. C. because even in extreme cases where the benefit of Probation of Offenders Act are not given but the accused are released on bail and fail to attend the court, then in those cases also the legislature has given power to the court to call upon such person to find other sufficient sureties and till then the Court may commit him to jail. In the instance case a blanket order has been passed by the learned Sessions Judge by which he has not only permitted the withdrawal of the surety but has cancelled the order under the Probation of Offenders Act. Such an order cannot be permitted to stand for a moment. 8. Accordingly I partly allow this appeal, maintain the conviction of the accused but set aside the orders of the learned Sessions Judge, Bharatpur, dated June 7,1985 and June 21, 1985 and direct that the accused-appellant shall be released forthwith on his entering into a personal bond in the sum of Rs. 2,000/-for maintaining peace and be of good behaviour for a period of one year No surety shall be insisted in this case.Appeal partly allowed. *******