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20% of the compensation amount – Appellants filed petition u/s.482, challenging the same – Petition dismissed as withdrawn since it was held in Surinder Singh Deswal’s case that the condition for deposit in terms of s.148, N.I. Act as mandatory – Subsequently, this Court in Jamboo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– Appellants applied afresh u/s.482 – High Court dismissed the subsequent petition since the earlier petition had been withdrawn without liberty obtained to apply afresh, the subsequent petition was not maintainable – Correctness: Held: High Court unjustified in dismissing the subsequent petition on the ground that the appellants had withdrawn the earlier petition without obtaining leave to file afresh and, thus, the petition under consideration was not maintainable – Principle of res judicata has no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competence and jurisdiction to entertain the subsequent petition notwithstanding the fact that the earlier petition was withdrawn without obtaining any leave, subject to the satisfaction recorded by the High Court that the order prayed for in the subsequent petition ought to be made,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 be exceptional – On the contrary, the verb ‘shall’ used in the same sentence and distanced from the verb ‘may’ implies an obligation or duty that is referable to the quantum of deposit – Deposit in any case, must not be less than 20% of the fine or compensation awarded by the trial court – 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% – While the proviso to sub-section (1) and sub-section (2) of s.148 use ‘shall’ in the relevant context, sub-section (3) again reverts to ‘may’ and its proviso to ‘shall’ – Thus, ‘may’ would be read as ‘may’ and ‘shall’ as ‘shall’, wherever they are used in s. 148, because, the words mean what they say. [Paras 26-28] Interpretation of statutes – Construction of – Legislative intent, mandatory or directory in character – Use of the verbs ‘may’ and ‘shall’:
Held: User of the verbs ‘may’ and ‘shall’ in a statute not a sure index for determining whether such statute is mandatory or directory in character – Legislative intent to be gathered looking into other provisions of the enactment, which can throw light to guide one towards a proper determination – Although the legislature often uses ‘may’, ‘shall’ or ‘must’ interchangeably, ordinarily ‘may’, having an element of discretion, is directory whereas ‘shall’ and ‘must’ are used in the sense of a mandatory provision – It is the duty of the court to gather the real intention of the legislature by carefully analysing the entire statute, the section and the phrase/expression under consideration – Provision appearing to be directory in form could be mandatory in substance – Substance, rather than the form, being relevant, ultimately it is a matter of construction of the statute that is decisive – Interpretation must depend on the text and the context – Interpretation which makes the textual interpretation match the contextual would be best – Enactment has to be looked at as a whole and it needs to be discovered what each section, each clause, each phrase and each word means and whether it is designed to fit into the scheme of the entire enactment – While no part of statute and no word of a statute can be construed in isolation, statutes have to be construed so that every word has a place and everything is in its place. [Paras 24, 25]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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