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 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 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 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.
……….”
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 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 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 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.
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) New Delhi; March 3, 2009 … J.
(Dr. Mukundakam Sharma)