D. P. MOHAPATRA, J. ( 1 ) IN both the cases the accused persons have filed applications under section 439 (1) (b) read with section 440 (2) of the Code of Criminal Procedure assailing the condition in the bail orders to furnish cash security. Since a common question is raised in both the cases and as the orders passed by the Courts below show that similar consideration were made by the learned Magistrate and by the learned Sessions Judge while insisting on cash security, the cases were taken up together with consent of learned counsel for the parties and they are being disposed of by this order. ( 2 ) BOTH the Criminal Misc. Cases arise from Lahunipada P. S. Case No 12 of 1993 which corresponds to G. R. Case No 320f 1993 pending in the Court of the Sub-divisional Judicial Magistrate, Bonal in which the petitioners are alleged to have committed offences punishable under section 143/341/294/336/506 I. P. C. ( 3 ) AS stated in the application filed under Sec. 439 (1) read with section 440 (2) Cr. P. C. (Criminal Misc. Case NO 617/93) the gist of the allegations made in the First Information Report lodged by one D. K. Bhargav of Jindal Strips Ltd. Tensa is to the effect that on 30. 1. 1993 at 7. 30 a. m. when labourers were engaged in loading 20 boxes of wagons at railway siding of Barsuan Railway Station, the petitioner along with 15 others asked them to stop the loading and on their refusal they dragged the operators, abused them in filthy language and broke the glass of the loaders. On getting the said report the police registered the aforementioned case. Investigation is continuing. ( 4 ) ON consideration of the application filed by the petitioner for bail, the learned Magistrate by his order dated 20th of March, 1993 directed his release on bail on furnishing cash security of Rs. 5,000/- in the Nizarat of the Court with two sureties each for the like amount of Rs. Investigation is continuing. ( 4 ) ON consideration of the application filed by the petitioner for bail, the learned Magistrate by his order dated 20th of March, 1993 directed his release on bail on furnishing cash security of Rs. 5,000/- in the Nizarat of the Court with two sureties each for the like amount of Rs. 10,000/with the further conditions that one of the sureties should be a local man and that the petitioner shall appear before the Sub- Inspector of Tensa on each Saturday at 5 p. m. shall not indulge himself in any anti-social activities; shall not dissuade the witnesses from speaking the truth; and shall not go outside the jurisdiction of Bonai Subdivision without permission of the Court till disposal of the case. As the discussions in the order reveal, the learned Magistrate felt inclined to insist on cash security on the ground that the petitioner is involved in some other criminal case (Lahunipada P. S. Case No 42 dated 18. 8. 1990 and Lahunipada P. S. Case No 95 dated 7. 12. 1992) and that he violated the conditions in the bail order in GR Case No 275/92. He also took into account the fact that the petitioner is a rowdy, hooligan and menance to the society and is creating panic amongst the labourers and mine owners at Koida, Tensa and Barsuan. ( 5 ) SIMILARLY the petitioners in Criminal Misc. Case No 618 of 1993 were granted bail by order dated 18. 2. 1993 of the learned Magistrate on furnish cash security of Rs. 20,000/- each with one local surety for the like amount. Being aggrieved by the said order, the petitioners filed application under section 439 (1) (b) read with section 440 (2) Cr. P. C. in the court of Sessions Judge, Sundargarh (Criminal Misc. Case No 42 of 1993) in which the learned Sessions Judge by his order dated 4. 3. 1993 modified the bail order passed by the learned Magistrate and directed that the petitioners shall be released on bail of Rs. 10,000/with two sureties each for the like amount solvent for the like amount and men of the same locality, one out of whom shall be the father of the respective petitioner and on each depositing Rs. 3. 1993 modified the bail order passed by the learned Magistrate and directed that the petitioners shall be released on bail of Rs. 10,000/with two sureties each for the like amount solvent for the like amount and men of the same locality, one out of whom shall be the father of the respective petitioner and on each depositing Rs. 10,000/ - in Nizarat of the Court of the SDJM, Bonai to be pledged in favour of the SDJM to his satisfaction with the further conditions that the petitioners and their bailors shall give undertakings in writing that the petitioners shall appear before the Inspector-in-charge, Lahunipada Police Station on each Saturday at 5 p. m. they shall not indulge themselves in any anti-social activities they shall not dissuade the witnesses from speaking the truth; they shall not go outside the jurisdiction of Bonai Subdivision without prior permission of the SDJM Bonai till final disposal of the case. Being aggrieved by the orders passed by the Courts below the petitioners filed these applications under section 439 (1) (b) read with section) 1. 440 (2), Cr. P. C. in this Court for relaxation of the conditions in the bail order. ( 6 ) THE main thrust of the arguments of Shri v. Mohanty, learned counsel for the petitioners, was that the learned Magistrate has no jurisdiction to direct furnishing of cash security by the petitioners and the orders are vitiated on that court. Elucidating the point Shri Mohanty submitted that the provisions in section 445, Cr. P. C. clearly reveals that the Code vest discretion in the accused who is required to execute a bond with a without surety, to offer to deposit a sum of money as the Court may fix in lieu of executing such bond; no power is vested in the Court to require the accused to furnish cash security while granting bail. He mainly relied on the decisions of the Mysore High Court in the case of State of Mysore v. H Venkatarama, of Karnataka High Court in the case of Krishna Kumar and others v. State of Karnataka, and in the case of Afsar Khan v. State by Cirinagar Police, Bangalore, and of the Gauhati High Court in the case of Gokul Das v. The State of Assam. ( 7 ) ON a reading of the provisions relating to bail in the Code of Criminal Procedure, it is clear that there is no specific provision empowering the Magistrate to insist on furnishing cash security while granting bail to a person. It is also clear that there is no specific provision enumerating the conditions, which may be attached by a Magistrate while granting bail to a person. Therefore it can be reasonably said that the matter is left to the exercise of judicial discretion by the Magistrate concerned subject to the provisions in the Code. Section 437 which deals with grant of bail by a Magistrate in a case of non-bailable offence provides in sub-section (3) that when a person accused or suspected of a commission of offence punishable with imprisonment which may extend to 7 years or more or of an offence under Chapter VI, Chapter XVI, or Chapter XVII of the Indian Penal Code or abetment of or conspiracy or attempt to commit any such offence, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary - (a) in order to ensure that such person shall 1968 Cr. U. 696. Paradesi Patra and Anr. v. State of Orissa attend in accordance with the conditions of the bond executed under the Chapter, or (b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused of the commission of which he is suspected or (c) otherwise in the interest of justice. The provision in my view, is in the nature of restriction on the discretion the Magistrate regarding grant of bail. No such restriction is provided under sub-section (1) and (2) of section 437. In section 439 which provides the special powers of High Court or Court of Session regarding bail, it is laid down that a High Court or Court of Session may direct that any person accused of an offence and in custody be released on bail and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section. It is therefore clear that the provision in section 437 (3) are also applicable to High Court and the Court of Session while granting bail under Section 439. It is therefore clear that the provision in section 437 (3) are also applicable to High Court and the Court of Session while granting bail under Section 439. ( 8 ) CONSTRUING sections 436 to 441 of the Code of Criminal Procedure the Gauhati High Court in the case of Gokul Das (supra) observed that from the relevant provisions of the Criminal Procedure there is no doubt that cash deposit in lieu of execution of bond by the accused is an alternative system grating bail and can be stated to be no less efficacious than granting bail of certain amount with or without surety or sureties of the like amount on the other hand, in the cash deposit system the cash is deposited right down and in the event of the accused is failure to appear, the Court has the least trouble to realise as the amount is already in its custody; in case of bail on personal bond of reongnisance the Court has to rely on the personal promise; under bail with surety, in case of failure to appear on the part of the accused the Court has power to realise the amount from the surety. Construing sections 441 and 445, the Court observed that the section contemplates (i) the furnishing of personal bond by the accused and (ii) a bond by one or more sufficient sureties, section 445 provides for taking of deposit instead of recognizance; when any person is required by any court or officer to execute a bond, with or without sureties, such Court or officer may, except in case of bail bond for good behaviour permit him to deposit a sum of money or Govt promissory notes to such amounts as the Court of officer may fix, in lieu of executing such bond; thus under this section the Court has the discretion to allow the accused to deposit payment in cash or Govt. promissory notes if he offers it when he is unable to produce sureties, except when the bond is for good behaviour, this concession is available only to the accused and not to the sureties. The Mysore High Court in the case of State of Mysore v. H. Venkataraina (supra) construing the provisions of Sections 499 and 513 of the Code of. The Mysore High Court in the case of State of Mysore v. H. Venkataraina (supra) construing the provisions of Sections 499 and 513 of the Code of. Criminal Procedure, 1898 held: It is clear from the words of section 499 that it contemplates taking of a personal bond from the accused person and a bond by one or more sureties. The section does not empower to Magistrate to demand cash security. According to section 514 if the accused wants to deposit any sum of money, it is open to the Court to accept the same in lieu of executing a bond. But the law does not empower the Court to insist on cash deposit to be made by the accused. T The Karnataka High Court in the case of Krishan Kumar and others (supra) held that the discretionary power exercised by the Magistrate or the Court, as the case may be, under sections 441 and 445, is mutually exclusive and not concurrent; on the Court requiring a person to execute a personal bond with sureties or without sureties, it is at the option of the accused persons to furnish cash deposit in lieu of the bond or sureties that the Court may make an order under section 445, it is impermissible for the Magistrate to order asking for securities in all the from available under both the sections. The same High Court in the case of Afsar Khan (supra) construing sections 437, 438 and 439 Cr. P. C. observed thus: T1where the Court while granting the bail insisted upon the accused to deposit a cash security of Rs. 750/- in each case, totalling Rs. 6750/- the order was not only harsh and oppressive but indirectly denial of bail thus depriving the persons individual liberty. While granting bail, insisting on good behaviour or prompt attendance, executing personal bond further to safeguard his good behaviour and personal attendance may be supported by insisting upon additional sureties as the Court deems fit. But insisting upon local sureties or cash security is incorrect and indirectly results in denial of bail granted earlier. A reading of the entire Chapter, which deals with the provisions relating to bail, does not say that when a person is released on bail, the Court can also insist upon him to give cash security. But insisting upon local sureties or cash security is incorrect and indirectly results in denial of bail granted earlier. A reading of the entire Chapter, which deals with the provisions relating to bail, does not say that when a person is released on bail, the Court can also insist upon him to give cash security. While the Court exercises its discretion whether it is under sections 437 and 438 or 439, it shall exercise the same properly and not in an arbitrary manner. The discretion exercised shall appear a just and reasonable one. It is true that no norms are prescribed to exercise the discretion. Merely because norms are not prescribed for the Court to exercise discretion under sections 437, 438 or 439 that does not mean the discretion shall be left to the whims of the Court. Guiding principles shall be with sound reasoning and in no way opposed to any other law. While administering justice, it is the duty of the Court to see that any order to be passed or conditions to be imposed shall always be in the in interest of both the acc used and the State. The conditions shall not be capricious. On the other hand, it shall be in the aid of giving effect to the very object behind the discretion. ( 9 ) CERTAIN decisions of the Apex Court also throw some light on this point. In the case of Keshab Naryan Banjerjee and another v. The State of Bihar, the Court held that the condition imposed by the High Court for enlarging the appellant No. 1 on bail, namely that he should furnish security for rupees one lakh in cash or in fixed deposit of any nationalised bank in Bihar with two sureties residing in the State of Bihar each for a like amount appears to be excessively onerous and it virtually amounts to denial of bail itself. The order passed by the Patna High Court was modified. In the case of Hussainara Khatoon v. State of Bihar, the Court considering the question of pretrial release under sections 436 and 437 Cr. P. C. ruled thus: Even under the law as it stands today the Courts must abandon the antiquated concept under which pre-trial release is ordered only against bail with sureties. That concept is outdated and experience had shown that it has done more harm than good. P. C. ruled thus: Even under the law as it stands today the Courts must abandon the antiquated concept under which pre-trial release is ordered only against bail with sureties. That concept is outdated and experience had shown that it has done more harm than good. The new insight into the subject of pre-trial release, which has been developed in socially, advanced countries and particularly the United State should now inform the decisions of our Courts in regard to pre-trial release. If the Court is satisfied, after taking into account, on the basis of informations placed before it, that the accused has his roots in the community and is not likely to abscond it can safely release the accused on his personal bond. To determine whether the accused has his roots in the community, which would deter him from fleeing, the Court should take into account the following factors concerning the accused:1. The length of his residents in the community. 2. His employment status, history and his financial condition. 3. His family ties and relationships, 4. His reputation, character and monetary condition, 5. His prior criminal record including any record or prior release on recognizance or on bail, 6. The identity of responsible members of the community who would vouch for his reliability, 7. The nature of the offence charged and the apparent probably of conviction and the likely sentence in so fat as these factors are relevant to the risk of non-appearance, and 8. Any other factors indicating the ties of the accused to the community or bearing on the risk of willful failure to appear. If the Court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non-appearance the accused, may as far as possible be released on his personal bond. But even while releasing the accused on personal bond it is necessary to caution the Court that the amount of the bond, which it fixed, should not be based merely on the nature of charge. The decision as regard the amount of the bond should be an individualised decision depending on the individual financial circumstances of the accused and the probability of his absconding. The decision as regard the amount of the bond should be an individualised decision depending on the individual financial circumstances of the accused and the probability of his absconding. The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. The enquiry into the solvency of the accused can become a source of great harassment to him and often result in denial of bail and deprivation of liberty and should not, therefore be insisted upon as a condition of acceptance of the personal bond. ( 10 ) FROM the conspectus of the views expressed in the aforementioned decisions, it is fairly clear that insistence on furnishing cash security has not been approved by the Courts. Though in the absence of any specific prohibition or any statutory norm for exercise of judicial discretion in the matter of bail it cannot be said that the Magistrate or Court, as the case may be, has no jurisdiction at all to require a person to furnish cash security as a condition for bail, such a condition has been held by the Apex Court and different High Courts to be harsh oppressive and virtually amounting to denial of bail. Further, the legislative policy in the matter relating to cash security as appears from the provision in section 445, Cr. P. C. is that it will be open to the person who has been directed to be released on bail on furnishing personal bond (excepting personal bond for good behaviour) to furnish cash security in lieu of personal bond or recognizance with permission of the Court. From this it can be reasonably inferred that it is not the mandate of the Code that the Magistrate should insist on cash security additional to personal bond with or without sureties. ( 11 ) COMING to the case in hand, though the learned SDJM and the learned Sessions Judge have both stated certain reasons for requiring the petitioners to furnish cash security, they have not considered the matter in the light of the legal position as discussed above, particularly the provision in Section 445, Cr. P. c. Merely because the petitioners are alleged to have been involved in other criminal cases and in another criminal case some of them violated certain conditions in the bail order. P. c. Merely because the petitioners are alleged to have been involved in other criminal cases and in another criminal case some of them violated certain conditions in the bail order. In my view, that is not sufficient to insist on furnishing cash security, particularly when the Courts below did not examine if presence of the accused persons can be reasonably ensured by imposing other conditions. ( 12 ) ON careful consideration of the matter, I am of the view that there is ample substance in the contention raised by Shri Y. Mohanty that the Courts below erred in requiring the petitioners to furnish cash security in addition to furnishing of bail bond with sureties. The said condition in the bail orders passed by the Courts below is therefore set aside. The other conditions in the bail orders shall remain unaltered. The Criminal Misc. Cases are disposed of accordingly. Petitions allowed. .