Ramathal
& Ors. Vs. Inspector of Police & ANR. [2009] INSC 468 (3 March 2009)
Judgement
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
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;
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