REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO. 418  OF 2009 (Arising out of S.L.P. (Crl.) No. 5668 of 2008)

Ramathal & Ors.                    …. Appellants

Versus

Inspector of Police & Anr.                        …. Respondents

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. Leave granted.

2. The present appeal is filed by the appellants being aggrieved by a

part of the direction contained in the Order dated 21.07.2008 passed by

the  learned  Single  Judge  of  the  Punjab  &  Haryana  High  Court  in

Criminal Original Petition No. 16601 of 2008 whereby the High Court

allowed the application filed by the appellants under Section 438 of the

Code of Criminal Procedure, 1973 (for short the “Code”) and granted the

relief of anticipatory bail as prayed.  The appellants are aggrieved due to

imposition of alleged onerous condition for grant of anticipatory bail.

3. A complaint was filed by one A. Nizam Bash S/o Late M. Abdul

Salam, Respondent No. 2 contending inter alia that the appellants  and

another person namely Karuppasami are legal heirs of one Raju and that

they owned a house which is located at Coimbatore.  

In the said complaint, the Complainant alleged that on coming to

know  that  the  said  house  bearing  No.  34  to  39,  Ward  No.  62,  P.V.

Krishnan Saibaba Colony, Coimbatore  is  open and ready for sale,  the

Complainant on behalf of the son-in-law who is working as Engineer and

residing with his family in Malaysia negotiated  with  Mrs. Ramathal,

wife  of  late  Raju  and  his  family  members   pursuant  to  which  an

agreement was entered into on behalf of him/son-in-law and daughter for

consideration of Rs. 35.5 Lakhs as desired by the accused persons.  A

Page 2 of 10

sum of  Rs.  25.5  Lakhs  was advanced  on  14.3.2007  as  a  part  of  sale

consideration and the deal was closed upon the accused stating that the

original  documents  were  given  by  their  father  at  Thirupur  for  safety

purposes and that after receiving the said documents the same would be

handed over to the complainant and that they would receive the balance

amount within one month’s time. An agreement to that effect was also

made.  However, the accused persons failed to do so and instead received

a sum of Rs. 7 lakhs as advance on 7.8.2007 and handed over only the

possession of the house.  The papers and the documents relating to the

house were not handed over to the Complainant and on enquiry made, it

came to the knowledge of the complainant that the original documents

and  title  deeds  had  been  placed  with  Sowdambiha  Chit  Fund  at

Coimbatore,  where  they  are  required  to  pay  a  sum  of  Rs.  8  lakhs

including interest amount.  

4.   It  further  transpires  that  the  said  accused  Ramathal  and  her

husband late Raju executed the sale deed in respect of said property in

favour  of  Chitra  wife  of  Sivaji  and Kumudha wife  of  Chinnasamy in

1998.  The aforesaid fact of alleged fraudulent transfer of property was

concealed.  They also allegedly concealed the fact that they received a

sum of Rs. 11,50,000/- from Punjab National Bank by means of pledging

Page 3 of 10

the documents and that a decree was passed against Kumudha and Chitra

regarding  the  pledged  properties.   It  is  thus  alleged  that  the  accused

concealed the real fact and fraudulently received a sum of Rs. 32.5 lakhs

as sale consideration and thereby cheated the complainant and his son-in-

law and his wife.

5. On  receipt  of  the  aforesaid  complaint,  a  case  was  registered

treating the said complaint as the First Information Report.    

6. The  appellants  herein  apprehending  arrest  in  the  aforesaid  case

registered  under  Section  120B  and  420,  IPC  filed  a  petition  under

Section 438 of the Code seeking anticipatory bail.    

7. On perusal  of the submissions made and material  on record, the

High Court passed an order granting anticipatory bail as prayed for on

condition that in the event of arrest, the appellants shall be enlarged on

bail on their depositing Rs. 32,00,000/- to the credit of Crime No. 56 of

2008 before the Judicial Magistrate No. 1, Coimbatore and also on their

executing a personal bond of Rs. 1,00,000/- with two sureties each for

the like sum to his satisfaction.

Page 4 of 10

8. Aggrieved by the aforesaid order, the appellants approached this

Court on the ground that the conditions imposed by the High Court while

granting anticipatory bail are not only unreasonable and onerous but the

same also amounts to putting a fetter  on the right  of  appellants  being

admitted to bail, in terms of the order passed.

9. The said  petition  filed  by the appellants  was  placed before  this

Court whereupon the following order was passed on 13.8.2008.

“Issue notice.

However, it is made clear that, in the event, it is found that the petitioners are not otherwise entitled to grant of an order of anticipatory bail, this Court may pass an appropriate order.

In  the  meantime,  only  that  portion  of  the  order whereby conditions  have been imposed for  grant  of anticipatory bail  other  than  those  contained  in  Sub- section  (2)  of  Section  438 of  the  Code of  Criminal Procedure shall remain stayed.”

10. Notice  issued  was  served  on  the  respondent  and  therefore,  the

matter was listed for hearing before us on which we heard the learned

counsel appearing for the parties at length.

11. Learned counsel appearing for the appellants submitted before us

that  the  conditions  imposed  by  the  High  Court  while  granting

Page 5 of 10

anticipatory  bail  to  the  appellants  were  not  only  onerous  but  also

unreasonable.    It  was  also  submitted  that  conditions  imposed  by the

High  Court  for  granting  anticipatory  bail  on  their  deposit  of  Rs.

32,00,000/- amounts to putting a fetter on the order granting anticipatory

bail  as  the  appellants  are  unable  to  satisfy  the  conditions  which  are

beyond their means and powers.    

12. Learned counsel appearing for the respondent, however, submitted

that  the  aforesaid  pre-conditions  put  by  the  Court  for  grant  of

anticipatory bail to the appellants were called for and justified in the facts

and  circumstances  of  the  present  case.    It  was  pointed  out  that  the

appellants intentionally and knowing fully well  the entire position and

status  of  the  property  misrepresented  the  fact  and  cheated  the

complainant and therefore, such conditions were required to be put up for

grant of anticipatory bail to the said persons.

13. In the light of the aforesaid submissions by the counsel appearing

for the parties,  we have also considered the records  placed before  us.

The facts and circumstances of the case when analysed have indicated

that receipt of Rs. 32.5 lakhs as advance towards sale consideration of

Page 6 of 10

the property was alleged to be on misrepresentation of the fact by the

appellants herein.

14. It  is  also  disclosed  from  the  records  that  the  said  property  is

already mortgaged during the year 2004 with the Punjab National Bank

and that  in  fact  parties  have  already obtained  an  order  of  attachment.

Even the documents  with regard to  the ownership of  the property are

lying with another financial institution from whom the appellants have

received consideration.  There appears to be hypothecation in respect of

the said property which was entered into with the private financer.   It is

alleged that the appellants while entering into the said agreement with

the complainant never brought to his notice about the mortgage of the

property.   The aforesaid allegations are serious but the same are required

to  be  considered  by the  court  in  accordance  with  and  in  the  light  of

correct position of law.

15. It appears that in the aforesaid facts and circumstances, the High

Court  passed  the  impugned  order  with  the  intention  of  protecting  the

interest of the complainant in the matter.  In our considered opinion, the

approach of the High Court was incorrect as under the impugned order a

Page 7 of 10

very  unreasonable  and  onerous  condition  has  been  laid  down  by  the

Court as a condition precedent for grant of anticipatory bail.   

16. This Court in Amarjit Singh v. State of NCT of Delhi, reported in

JT 2002 (1) SC 291, held as under:-  

“4.  Having regard to the facts and circumstances of the present case, we have no hesitation in coming to the conclusion that the imposition of condition to de- posit the sum of Rs. 15 lacks in the form of FDR in the  Trial  Court  is  an  unreasonable  condition  and, therefore, we set aside the said condition as a condi- tion  precedent  for  granting  anticipatory bail  to  the accused/appellant…….”

In Sandeep Jain v. National Capital Terriotry of Delhi,  reported

in (2000) 2 SCC 66, this court held that:

“We are  unable  to  appreciate  even  the  first  order passed by the Metropolitan Magistrate imposing the onerous condition that  an accused at the FIR stage should pay a huge sum of Rs. 2 lakhs to be set at lib- erty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs. 2 lakhs. If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to his legal remedies provided by law. Similarly if  the court  was dissatisfied with

Page 8 of 10

the conduct  of the surety as for his failure to raise funds for honouring the cheques issued by him, the court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that  the  allegations  made in the FIR are true.  That can be decided only when the trial concludes, if the case is charge-sheeted by the police”.

17. It is not disclosed from the record that the High Court considered

the entire facts of the case in proper perspective and proceeded to dispose

of the prayer for anticipatory bail oblivious of the facts of the case and

contrary to correct legal position with regard to law relating to grant of

anticipatory bail.  The High Court should have considered the entire facts

of the case including the gravity of the offence alleged and in the light

thereof should have considered the prayer for grant of anticipatory bail.

In that  view of the matter,  we feel that  the entire order passed by the

High Court is required to be set aside and the matter to be reconsidered

in accordance with law and in terms of observations made herein.   

18. We accordingly, set aside the impugned order and remit back the

matter to the High Court to consider the prayer for anticipatory bail of

Page 9 of 10

the appellants afresh in accordance with law taking into consideration the

facts and circumstances of the case including the gravity of the offence

alleged and analysing the prayer of the appellants whether to grant or not

to grant the prayer for anticipatory bail.  The High Court shall dispose of

the matter  in  accordance  with  law,  giving  reasons  for  its  decision,  as

expeditiously as possible, preferably within a period of six weeks from

the date of the communication of this order.

19. Accordingly, the appeal is disposed of.  

            ………….……………...J.            (S.B. Sinha)

…………………………J. (Dr. Mukundakam Sharma)

New Delhi; March 3, 2009

Page 10 of 10