LexMUSKAN ENTERPRISES & ANR. versus THE STATE OF PUNJAB & ANR.
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[2024] 12 S.C.R. 1273 : 2024 INSC 1046 Muskan Enterprises & Anr. v. The State of Punjab & Anr. (Criminal Appeal No. 5491 of 2024) 19 December 2024 [Dipankar Datta* and Prashant Kumar Mishra, JJ.] Issue for Consideration Issue arose whether the High Court was justified in dismissing the subsequent petition u/s.482, Cr. PC on the ground that since the earlier petition had been withdrawn without liberty obtained to apply afresh, the subsequent petition was not maintainable. Headnotes† Code of Criminal Procedure, 1973-s.482 – Subsequent petition under – Maintainability – Order of conviction and sentence for offence punishable u/s.138 against appellants – In appeal, the sentence of the the appellants suspended and was granted bail however, directed to deposit 20% of the compensation amount – Appellants filed petition u/s.482, challenging the same – Petition dismissed as withdrawn since it was held in Surinder Singh Deswal’s case that the condition for deposit in terms of s.148, N.I. Act as mandatory – Subsequently, this Court in Jamboo Bhandari’s case held that deposit may not be ordered if the appellate court finds a case to be exceptional – Appellants applied afresh u/s.482 – High Court dismissed the subsequent petition since the earlier petition had been withdrawn without liberty obtained to apply afresh, the subsequent petition was not maintainable – Correctness: Held: High Court unjustified in dismissing the subsequent petition on the ground that the appellants had withdrawn the earlier petition without obtaining leave to file afresh and, thus, the petition under consideration was not maintainable – Principle of res judicata has no application in a criminal proceeding – Change of law can legitimately be regarded as a vital change in circumstance clothing the High Court with the power, competence and jurisdiction to *Author 1274 [2024] 12 S.C.R. Supreme Court Reports entertain the subsequent petition notwithstanding the fact that the earlier petition was withdrawn without obtaining any leave, subject to the satisfaction recorded by the High Court that the order prayed for in the subsequent petition ought to be made, inter alia, either to prevent abuse of the process of any court or to secure the ends of justice – Constricted view taken by High Court to hold that the appellants were required to obtain the leave of the Judge who had dismissed the earlier petition prior to filing the subsequent petition is untenable and not warranted in law – Appellants applied a second time before the High Court only when the law on interpretation of s.148, N.I. Act was laid down somewhat differently in Jamboo Bhandari’s case and not on any other ground – It was not a review in disguise that the appellants attempted but their endeavour was to impress the High Court to have the law, currently governing the field, to be applied in their case – Subsequent petition was well-nigh maintainable – Impugned order of the High Court declining to entertain the subsequent petition u/s.482 of the appellants is unsustainable in law – Impugned order of the High Court and the Sessions Court’s order set aside – However, in the interest of justice, matter remitted to the Sessions Court to re-examine the issue of ordering deposit required to be made by the appellants in the light of the law laid down in Jamboo Bhandari’s case – Negotiable Instruments Act, 1881. [Paras 13, 19, 20-29] Negotiable Instruments Act, 1881 – s.148(1) – Power of Appellate Court to order payment pending appeal against conviction – “May” and “shall” in sub-section (1), (2), (3) and proviso to s.148 – Interpretation of: Held: Text is to be read as set in the context – Legislature has used both the verbs ‘may’ and shall’ in sub-section (1) of s.148, but in different contexts, clearly suggestive of the legislative intent to mean what it said – Verb ‘may’ in sub-section (1), implies discretion, and, if intended to have its natural meaning, it would refer to the discretion left to the appellate court to determine as to whether such court should order any deposit to be made by the appellant or not pending hearing of the appeal against the conviction and sentence recorded by the trial court – Jamboo Bhandari’s case lays down that deposit may not be ordered if the appellate court finds a case to [2024] 12 S.C.R. 1275 Muskan Enterprises & Anr. v. The State of Punjab & Anr. be exceptional – On the contrary, the verb ‘shall’ use
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