REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.419  OF 2009 (Arising out of S.L.P. (Crl.) No. 7138 of 2008)

I. Glaskasden Grace &  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 2.9.2008 passed by the

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

Original Petition No. 21442 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

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of  anticipatory bail  as  prayed for  on  the alleged grounds  of  imposing

conditions which are unreasonable as submitted before us.

3. A  complaint  was  filed  by  one  B.  Nagalakshmi  W/o

Balagovindarajulu,  Complainant  -  Respondent  No.  2  contending  inter

alia that she approached one M. Mani, a land broker, for the purchase of

house  sites  bearing  Nos.  9,  10,  11  and  12  in  Sasi  West  Extension,

Vilakrichi  Village,  Sern Nagar,  Coimbatore.    Mani  informed that   K.

Sakthivel  is  the  owner of  site No. 12,  and other  site owners  reside at

Tiruppur and Selvapuram.  Encumbrance Certificate issued by the Sub-

Registrar and sale deed of 4 sites were shown, which reflected that the

land were in the name of appellants.  K. Sakthivel made assurance to the

complainant that he will arrange for the sale of the four sites to her by the

site owners by making them to execute a sale deed in her favour.  The

total  sale  amount  for  the four  sites  was fixed at  Rs.  62,62,000/-.   As

alleged when the complainant came forward to tender white money for

the entire amount, the accused Sakthivel asked her to tender white money

only  for  Rs.  7,72,700/-  and  the rest  in  black,  and represented  that  he

would execute the sale deed in her favour only then.  Accordingly, she

had parted a sum of Rs. 7,72,700/- through four demand drafts and cash

of Rs. 54,89,300/- to the accused, on the day of registration and got the

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sale  deed  executed  in  her  favour  on  15.05.2007.   Subsequently,  on

03.06.2007 when the respondent No. 2 attempted to put up a boundary

around  the  land,  she  came to  know that  the  said  four  sites  originally

belonged to some other person.    

4.   It  further  transpires  that  accused/appellants conspired and forged

the  encumbrance  certificate  and  impersonated  themselves  as  original

owners of the house sites, prepared a false sale deed and registered the

same in favour of complainant and cheated the complainant to the tune of

Rs. 62,62,000/-.   

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  their  arrest  in  the  aforesaid

case registered under Sections 120B, 466, 467, 468, 471, 419 and 420

IPC filed a petition in the High Court  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

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

bail on their depositing the title deeds of property worth Rs. 20,00,000/-

standing either in their name or in the name of third parties and also on

their executing a personal bond of Rs. 25,000/- with two sureties for the

likesum to his satisfaction.

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 inter alia 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.

……….”

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10. Notice  was  issued to  respondents  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

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 title deeds of

property worth  Rs. 20,00,000/-  standing either in their  name or in  the

name of third parties 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 also pointed out that the

appellants intentionally and knowing fully well  the entire position and

actual ownership of the property misrepresented the fact and cheated the

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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. 62,62,000/- towards sale consideration of the property

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

herein.

14. It is disclosed that the said property originally belonged to some

other  person.    The  allegations  made  are  serious  as  it  is  alleged  that

accused/appellants conspired and forged the encumbrance certificate and

impersonated  themselves  as  original  owners  of  the  house  sites  and

cheated  the  respondent  No.  2  (complainant)  to  the  tune  of  Rs.

62,62,000/-  by preparing  a false  sale  deed and getting  it  registered  in

favour of Respondent No. 2.

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

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

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 deposit the sum of Rs. 15 lacks in the form of FDR in the Trial Court is an unreasonable condi- tion and, therefore, we set aside the said condition as a condition 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:

“4. 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 liberty. 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

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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 the conduct of the sure- ty as for his failure to raise funds for honouring the cheques issued by him, the court could have direct- ed  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 normal- ly 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.     

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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

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

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