Holding

The condition imposed by the High Court is unreasonable; the order granting anticipatory bail on such terms is set aside and the matter remitted for fresh consideration.

Summary

The appellants, Ramathal and others, were charged under Sections 120‑B and 420 IPC for allegedly cheating a buyer by misrepresenting the status of a mortgaged property and receiving a large advance. Anticipating arrest, they filed an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The Punjab & Haryana High Court granted bail but imposed a condition that the appellants deposit Rs 32,00,000 and execute a personal bond of Rs 1,00,000 with two sureties each. The appellants appealed to the Supreme Court, contending that the condition was unreasonable, onerous and fettered their right to bail. The Supreme Court held that the High Court had not considered the entire facts and the gravity of the offence before imposing such a condition, and that the condition was therefore unreasonable. Consequently, the Court set aside the High Court’s order and remitted the matter for fresh consideration of the anticipatory bail application. The appeal was disposed of with directions to the High Court to decide the bail petition expeditiously.

Issues considered

Whether the condition of depositing Rs 32,00,000 and furnishing a personal bond of Rs 1,00,000 with two sureties each, imposed by the High Court while granting anticipatory bail, is legally permissible and reasonable.

Legislation cited

Code of Criminal Procedure, 1973s. 438
Indian Penal Code, 1860s. 120-B, s. 420

Subjects

anticipatory bailSection 438 CrPCunreasonable bail conditionproperty fraudcheatingcriminal conspiracySupreme Court

Judgment

[2009] 3 S.C.R. 981

• RAMATHAL & ORS.
v.
INSPECTOR OF POLICE & ANR.
A

(Criminal Appeal No. 418 of 2009)
MARCH 3, 2009
B
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
.,,
Code of Criminal Procedure, 1973 - s. 438 -
Anticipatory bail - Grant of- Case registered ulss. 120-B and
420 - Application for anticipatory bail - Grant of, by High C
Court subject to deposit of Rs.32,00,0001- by applicant as also
execution of personal bond of Rs. 1, 00, 0001- with two sureties
each - Correctness of - Held: Order of High Court was very
unreasonable - It should have considered the entire facts of
, the case including gravity of offence alleged - Hence, matter D
f
remitted back to High Court to consider the prayer afresh.
The question which arose for consideration in this
appeal was whether the High Court was justified in
imposing a condition while granting anticipatory bail to E
the appellants in the case registered against them ulss.
120-B and 420 IPC requiring them to deposit
. Rs.32,00,000/- and also execute personal bond of Rs .
1,00,000/- with two sureties each for the like .sum.

Disposing of the appeal, the Court · F

HELD: 1.1 The facts and circumstances of the case
indicate that the receipt of Rs. 32.5 lakhs as advance
towards sale consideration of the property was alleged
to be on misrepresentation of the fact by the appellants. G
It is also disclosed from the records that the said
-1 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
981 H
982 SUPREME COURT REPORTS [2009) 3 S.C.R.

A documents with regard to the ownership of the property
are lying with another financial institution from whom the
appellants 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
B 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
c position of law. [Paras 13 and 14) [986-H; 987-A-D]
1.2. The High Court passed the impugned order with
the intention of protecting the interest of the complainant
in the matter. The approach of the High Court was
incorrect as under the impugned order a very
D unreasonable and onerous condition has been laid down
by the Court as a condition precedent for grant of
anticipatory bail. 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
E 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
F thereof should have considered the prayer for grant of
anticipatory bail. Thus, the impugned order is set aside
and matter is remitted back to the High Court to consider
the prayer for anticipatory bail of the appellants afresh in
accordance with law taking into consideration the facts
G and circumstances of the case including the gravity of the
offence alleged and analyzing the prayer of the appellants
whether to grant or not to grant the prayer for anticipatory
bail. [Paras 15, 17 and 18) [987-E; 988-F-G; 989-A-C]

H
RAMATHAL & ORS. v. INSPECTOR OF POLICE & 983
ANR.

~ Amarjit Singh vs. State of NCT of Delhi JT 2002(1) SC A
291 and Sandeep Jain vs. National Capital Territory of Delhi
2002 (2) sec 66, referred to.

Case Law Reference:

JT 2002(1) SC 291 Referred to Para 16 B

(2000) 2 sec 66 Referred to Para 16
,
' CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 418 of 2009.
c
From the Judgment and Order dated 21.07.08 of the High
Court of Judicature at Madras in Criminal O.P. No. 16601 of
2008.

K.K. Mani, C.K.R. Lenin Sekar and Mayur R. Shah for the
Appellants.
0

V. Kanagaraj, Promila, S. Thananjayan, Gurukrishna
Kumar and Srikala Gurukrishna Kumar for the Respondent.

The Judgment of the Court was delivered by E
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 F
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 G
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 H
984 SUPREME COURT REPORTS [2009] 3 S.C.R.

c
A 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
B
No. 62, P.V. Krishnan Saibaba Colony, Coimbatore is open
arid 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
c 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 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
D 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
E 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 ,
t0i the knowledge of the complainant that the original documents
F 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
G
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 the
H
RAMATHAL & ORS. v. INSPECTOR OF POLICE & 985
ANR. [DR. MUKUNDAKAM SHARMA, J.]

documents and that a decree was passed against Kumudha A
--- 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. B

5. On receipt of the aforesaid complaint, a case was
I' registered treating the said complaint as the First Information
Report.

6. The appellants herein apprehending arrest in the c
aforesaid case registered under Section 1208 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 D
!
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 E
executing a personal bond of Rs. 1,00,000/- with two sureties
each for the like sum 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 F
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 G
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 H
986 SUPREME COURT REPORTS [2009] 3 S.C.R.

A 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
B
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
c 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
D 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 Rs. 32,00,000/- amounts to putting a
fetter on the order granting anticipatory bail as the appellants
E
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
F 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
G 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
H
RAMATHAL & ORS. v. INSPECTOR OF POLICE & 987
ANR. [DR. MUKUNDAKAM SHARMA, J.]
_,..
Ii-' when analysed have indicated that receipt of Rs. 32.5 lakhs as A

- advance towards sale consideration of 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
B
property is already mortgaged during the year 2004 with the
Punjab National Bank and that in fact parties have already
·:1 ' 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
c
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 D
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 E
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 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:-
F

"4. Having regard to the facts and circumstances of the
present case, we have no hesitation in coming to the G
.... 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 condition and, therefore, we set aside
the said condition as a condition precedent for granting
anticipatory bail to the accused/appellant.. ..... " H
988 SUPREME COURT REPORTS [2009] 3 S.C.R.

A In Sandeep Jain v. National Capital Terriotry of Delhi, ......._
reported in (2000) 2 sec 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
B
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 be
c 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

D
cheques to resort to his legal remedies provided by law.
'Similarly if the court was dissatisfied with 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
E 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
F 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
G
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
H
RAMATHAL & ORS. v. INSPECTOR OF POLICE & 989
ANR. [DR. MUKUNDAKAM SHARMA, J.)

order passed by the High Court is required to be set aside and A
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 8
for anticipatory bail of the appellants afresh in accordance with
j
law taking into consideration the facts and circumstances of the
y
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 C
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.
D
N.J. Appeal disposed of.

-