Summary
The Supreme Court held that a second petition under Section 482 CrPC is maintainable despite withdrawal of the first without leave where there is a change in circumstances such as a change in law, since res judicata and Order XXIII Rule 1(3) CPC do not apply to criminal proceedings. It also held that Section 148 of the NI Act leaves the appellate court a limited discretion not to order any deposit in exceptional cases for recorded reasons, but any deposit ordered must be at least 20%.
Issues
- Whether a subsequent petition under Section 482 CrPC is barred because the earlier petition on the same subject was withdrawn without liberty to file afresh.
- Whether Section 148(1) of the Negotiable Instruments Act, 1881 obliges the appellate court in every case to order deposit of at least 20% of the fine or compensation, or leaves it a discretion not to order any deposit.
Provisions considered
- Section 482, Code of Criminal Procedure, 1973Read as saving the High Court's inherent power to give effect to orders under the Code, prevent abuse of process or secure the ends of justice; a change in law is a vital change in circumstance empowering the High Court to entertain a subsequent petition though the earlier one was withdrawn without leave. (¶¶ 14, 15, 16, 18, 19, 20)
- Section 11 and Order XXIII Rule 1(3), Code of Civil Procedure, 1908Contrasted with criminal procedure: res judicata does not apply to criminal proceedings, and the CrPC has no provision akin to Order XXIII Rule 1(3), which governs withdrawal of suits with liberty to sue afresh; the High Court wrongly imported the civil bar. (¶ 14)
- Section 362, Code of Criminal Procedure, 1973Noted as barring review in criminal matters, in contrast to Section 114 and Order XLVII CPC; the second petition was not a review in disguise but sought application of the law currently governing the field. (¶¶ 14, 20)
- Section 148(1), Negotiable Instruments Act, 1881Construed by reading 'may' as conferring a discretion whether to order any deposit at all pending the appeal, and 'shall' as fixing the minimum quantum (not less than 20%) once a deposit is ordered, with no upper fetter. The Court agreed with Jamboo Bhandari over Surinder Singh Deswal. (¶¶ 21, 22, 23, 26, 27)
Held
- Criminal and civil procedural laws are dissimilar and High Courts must not confuse them: res judicata under Section 11 CPC does not apply to criminal proceedings, and the CrPC has no counterpart to Order XXIII Rule 1(3) CPC. (¶¶ 14, 16, 17)
- There is no blanket bar on a successive petition under Section 482 CrPC; a change in law is a vital change in circumstance, and the High Court may entertain the later petition although the earlier one was withdrawn without leave, if satisfied that the order sought is needed to prevent abuse of process or secure the ends of justice. The High Court's insistence on prior leave was untenable. (¶¶ 18, 19, 20)
- The appellants' second petition, filed only because Jamboo Bhandari had since explained Section 148 differently, was not a review in disguise but an attempt to have the law currently governing the field applied, and was maintainable. (¶ 20)
- Where co-equal benches differ and the later bench has considered the earlier decision, the later decision is the law; though a reference to a larger bench would have been appropriate, the Court agreed with Jamboo Bhandari and gave its own reasons. (¶¶ 21, 22)
- Use of 'may' or 'shall' is not conclusive of whether a provision is mandatory; the legislative intent is gathered from text and context, reading the statute as a whole so that every word has its place. (¶¶ 24, 25)
- In Section 148(1), 'may' gives the appellate court discretion whether to order a deposit pending appeal against a Section 138 conviction, while 'shall' makes 20% of the fine or compensation the minimum once a deposit is ordered; the court may order more but never less. The deliberate use of both verbs in different contexts in the same section shows the legislature meant what it said. (¶¶ 26, 27)
- Normally the discretion should lean towards requiring a deposit, but in a rare case the appellate court considers exceptional it may order none, for recorded reasons. Illustrations (not exhaustive) include a conviction plainly vitiated by non-compliance with the Act's mandatory pre-complaint requirements, wrongful admission or exclusion of evidence, a conviction with no analysis of evidence or without reasons, or grossly disproportionate compensation. (¶ 27)
Result
Appeal allowed to the extent indicated; High Court order dated 18.05.2024 and Sessions Court order dated 17.10.2022 (directing deposit of 20% of the compensation) set aside; matter remitted to the Sessions Court to re-examine, at its discretion, whether any deposit should be ordered in light of Jamboo Bhandari and these observations; all points left open.