I.Glaskasden Grace & Ors vs Inspector Of Police & Anr

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

Page 1 of 9 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

Page 2 of 9 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

Page 3 of 9 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.

.........."

Page 4 of 9 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

Page 5 of 9 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

Page 6 of 9 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

Page 7 of 9 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.

Page 8 of 9

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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