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TMI Blog2024 (12) TMI 1528X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code of Civil Procedure, 1908 - A close reading of Sections 482, Cr. PC and 115, CPC would also reflect that the purposes sought to be achieved by exercising the high courts' inherent powers, which the respective procedural laws save, are also at variance. Prudence and propriety in the decision making process, thus, make it imperative for the high courts to not confuse the procedural laws governing criminal and civil proceedings. The legal position as to whether a second petition under Section 482, Cr. PC would be maintainable or not is no longer res integra - In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla [2007 (2) TMI 311 - SUPREME COURT], a decision arising out of the N.I. Act, the relevant high court had given the party the liberty to avail any remedy in law, if available, at the time of withdrawing her petition under section 482, Cr. PC. This Court, observed that the high court would have the inherent power to decide any successive petition under section 482 and that it is not denuded of that power by the principle of res judicata. This Court in Bhisham Lal Verma v. State of U.P. [2023 (10) TMI 1342 - SUPREME COURT], has again held that there is no blanket rule against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent : Mr. Mohd Irshad, A.A.G., Mr. Karan Sharma, AOR, Mr. Dilpreet Singh Gandhi, Adv., Mr. Nishant Bishnoi, AOR, Ms. Srishti Prabhakar, Adv., Mr. R. C. Goutam, Adv. JUDGMENT DIPANKAR DATTA, J. 1. Leave granted. 2. The judgment and order dated 18th May, 2024, passed by a learned Judge of the High Court of Punjab and Haryana at Chandigarh [High Court] dismissing a petition [CRM-M-25041-2024] under Section 482 of the Code of Criminal Procedure, 1973 [Cr. PC] preferred by the appellants is under assail in this appeal. 3. The basic facts are not in dispute. 4. Conviction for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 [N.I. Act] had been recorded against the appellants by the Judicial Magistrate, 1st Class, Amloh, District Fatehgarh [trial magistrate] vide judgment and order dated 15th September, 2022. Consequently, the second appellant (the proprietor of the first appellant) was sentenced to 2 years' rigorous imprisonment; also, under Section 357(3), Cr. PC. they were directed to pay compensation of Rs.74,00,000/- (double the cheque amount) to the complainant who was given the liberty to recover the same from the appellants. 5. The conviction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a case where the Appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the appellant, exception can be made for the reasons specifically recorded. 7. Therefore, when Appellate Court considers the prayer under Section 389 of the Cr. P.C. of an accused who has been convicted for offence under Section 138 of the N.I. Act, it is always open for the Appellate Court to consider whether it is an exceptional case which warrants grant of suspension of sentence without imposing the condition of deposit of 20% of the fine/compensation amount. As stated earlier, if the Appellate Court comes to the conclusion that it is an exceptional case, the reasons for coming to the said conclusion must be recorded." 10. Having regard to such decision, the appellants applied afresh under Section 482, Cr. PC. It is this petition which has now been dismissed by the High Court by the impugned order. The sole ground assigned by the High Court is that since the earlier petition had been withdrawn without liberty obtained to apply afresh, the subsequent petition is not maintainable. 11. We have hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s judicata. 17. That the principle of res judicata has no application in a criminal proceeding was reiterated by this Court in Devendra v. State of U.P. [(2009) 7 SCC 495]. 18. Recently, this Court in Bhisham Lal Verma v. State of U.P. [2023 SCC OnLine SC 1399], has again held that there is no blanket rule against filing of successive petition under section 482, Cr. PC before the high court. It was also held that if such a petition is filed, it must be seen whether there was any change in facts or circumstances, necessitating the filing of such petition. 19. Section 482, Cr. PC, on its own terms, saves the inherent powers of the high court to make such orders as may be necessary (i) to give effect to any order under the Cr. PC, or (ii) to prevent abuse of the process of any court, or (iii) to secure the ends of justice. Change of law can legitimately be regarded as a vital change in circumstance clothing the high court with the power, competence and jurisdiction to entertain the subsequent petition notwithstanding the fact that the earlier petition was withdrawn without obtaining any leave, subject to the satisfaction recorded by the high court that the order prayed for in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on shall be in addition to any interim compensation paid by the appellant under Section 143-A. (2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant. (3) The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal: Provided that if the appellant is acquitted, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant." (emphasis supplied) 24. Law is well-settled that user of the verbs 'may' and 'shall' in a statute is not a sure index for determining whether such statute is mandatory or directory in character. The legislative intent has to be gathered loo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the trial court. What Jamboo Bhandari (supra) lays down is that deposit may not be ordered if the Appellate Court finds a case to be exceptional not calling for a deposit and the reasons for not ordering a deposit are recorded in the order. On the contrary, the verb 'shall' used in the same sentence and distanced from the verb 'may' by 8 (eight) words, typically implies an obligation or duty that is referable to the quantum of deposit, that is, the deposit, in any case, must not be less than 20% of the fine or compensation awarded by the trial court. What follows is that once the Appellate Court is satisfied that a deposit is indeed called for, in an appropriate case, such court's power is in no way fettered to call upon the appellant to deposit more than 20% of the awarded compensation, but in no case can it be less than 20%. Interestingly, while the proviso to sub-section (1) and sub-section (2) of Section 148 use 'shall' in the relevant context, sub-section (3) again reverts to 'may' and its proviso to 'shall'. User of the verbs 'may' and 'shall' in different contexts in the same section is clearly suggestive of the legislative intent to mean what it said. 27. We may take t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing deposit as regards invalidity of the conviction and sentence under challenge on any valid ground. Reading 'may' as 'may' leads to the text matching the context and, therefore, it seems to be just and proper not to denude the Appellate Court of a limited discretion conferred by the legislature and that is, exercise of the power of not ordering deposit altogether albeit in a rare, fit and appropriate case which commends to the Appellate Court as exceptional. While there can be no gainsaying that normally the discretion of the Appellate Court should lean towards requiring a deposit to be made with the quantum of such deposit depending upon the factual situation in every individual case, more so because an order under challenge does not bear the mark of invalidity on its forehead, retention of the power of such court not to order any deposit in a given case (which in its view and for the recorded reasons is exceptional) and calling for exercise of the discretion to not order deposit, has to be conceded. If indeed the legislative intent were not to leave any discretion to the Appellate Court, there is little reason as to why the legislature did not also use 'shall' instead of 'may' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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