The main legal point established in the judgment is that the law does not authorize a magistrate to demand a cash deposit as a condition for the release of an accused on bail.

Sen, J—The applicant Niyamat Khan was arrested under Section 420, Penal Code, and released on bail. On 20-5-1948 Shri S.S. Khandekar, Magistrate First Class, Wardha, passed the following order: Each of the two accused (Niyamat Khan and Abdul Sattar) who are already on bail be bound over for Rs. 100 with one surety local for Rs. 500. They are directed to appear on 4.6-1948.

2. On 4-6-1948 an application was made on behalf of the police that heavy bail should be taken from the applicant for the reasons stated in the application. The relevant portion of the order passed on 4-6-1948 by Shri Khandekar was as follows: With a view to enforce their attendance in the Court regularly I order that each of the two accused should execute a bond of Rs. 5000 with the usual surety of Rs. 500 already ordered by me. Their bank deposits will be their security in this case as they do not possess any other property.

3. On 28.1-1949 an application was made by the applicants for the release of the money in the bank. It was dismissed on the same date by Shri Khandekar.

4. The applicants again applied to Shri Pande, Magistrate First Class, to release the money in the Bharat Bank, Wardha, detained by the order of Shri Khandekar. The, learned Magistrate dismissed the application on the ground that a similar application was considered and dismissed by Shri Khandekar, The applicant challenged the order of Shri Pande in revision in the Court of the Additional Sessions Judge, Wardha, who was of the opinion that ''the learned trial Magistrate was not correct in ordering the detention of the amount of Rs. 10,000 of the applicant in deposit with the Bharat Bank, Wardha, as has been done. Even under Section 513,. Criminal P.C. the accused could only be asked to deposit the amount of security instead of executing a bond. This provision is meant for the benefit of the person who is required to execute a bond in case where he may not be able to find a surety. The order was therefore not regular. The Additional Sessions Judge, however, dismissed the application on the ground that the applicant should have preferred revision against the order of Shri Khandekar., dated 4-6-1948, and that there was unusual delay. In his view the application to revise the order dated 4-6-1948 should have been made earlier.

5. Shri V.T. Kedar, learned Counsel for the applicant, contends that on the view of the learned Additional Sessions Judge that the order dated 4-6-1948 was not warranted by law, this Court should set it aside. I accept his contention that it was not open to the learned Magistrate to detain the sum of Rs. 10,000 standing in the name of the applicant in the Bharat Bank, Wardha.

6. The offence of cheating under Section 420 Penal Code is bailable and the applicant was entitled to be released on bail in terms of Sections 496 and 499, Criminal P.C. It is not open to a Magistrate acting under Section 496 to impose conditions : see In re Kota Appalakonda, 1942 AIR(Mad) 740. The law does not contemplate or authorise a Magistrate to demand a cash deposit as a condition to the release of any accused on bail. The language of Section 499, Criminal P.C., makes it perfectly clear that what that section contemplates is the furnishing of personal bond by the accused person and a bond by one or more sufficient sureties. The section does not empower a Magistrate to demand a cash from the accused as a security: See R.R. Chari v. Emperor, 1948 AIR(ALL) 238, Rajballam Singh v. Emperor, 1943 AIR(pat) 375Abdul Gani v. Emperor,CrLJ 773 : 231 I.C. 353 (Cal.). It was open to the Magistrate to increase the amount of bail under Section 501, Criminal P.C. He could have asked the accused to find out two sureties of Rs. 5,000 each. He was not, however, empowered to detain the money of the applicant in the Bank.

7. The real question is whether the order should be set aside in view of the fact that the applicant failed to challenge the order at the appropriate time. Shri Kedar relied on Balkrishna