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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 ..... 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 and sentence, as aforesaid, were carried in appeal by the appellants before the Sessions Court, Fatehgarh Sahib [Sessions Court]. While admitting the appeal by order dated 17th October, 2022, the Sessions Court suspended the sentence till disposal of the appeal. The second appellant was granted bail. Additionally, the Sessions Court directed the appellants to deposit 20% of the compensation amount awarded by the trial magistrate within a period of sixty days in the court below, being of the view that such a deposit (of 20%) was imperative. The complainant was given liberty to withdraw the deposit subject to furnishing an undertaking that the same would be returned, if the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 The sole ground assigned by the High Court is that since the earlier petition had been withdrawn without liberty obtained to apply afresh, the subsequent petition is not maintainable. 11.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 heard learned counsel appearing for the appellants, the respondent no.2-complainant as well as the respondent no.1- State of Punjab. 12. The short question emerging for our decision is whether the High Court was justified in dismissing the subsequent petition under section 482, Cr. PC for the reason that it assigned. 13. Having considered the materials on record as well as the rival claims, we are of the considered view that the High Court was unjustified in dismissing the subsequent petition on the ground that the appellants had withdrawn the earlier petition without obtaining leave to file afresh and, therefore, the petition under consideration was not maintainable. 14. The procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 20. Thus, in our considered opinion, the 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 clearly untenable and not warranted in law. It is noted that the appellants had applied a second time before the High Court only when the law on interpretation of Section 148, N.I. Act was laid down somewhat differently in Jamboo Bhandari (supra) and not on any other ground. It was not a review in disguise that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rve 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 looking into other provisions of the enactment, which can throw light to guide one towards a proper determination. Although the legislature is often found to use '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. Also, while the general impression is that 'may' and 'shall' are intended to have their natural meaning, 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. A provision appearing to be directory in form could be mandatory in su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the discussion a little forward to emphasize our point of view. There could arise a case before the Appellate Court where such court is capable of forming an opinion, even in course of considering as to what would be the appropriate quantum of fine or compensation to be kept in deposit, that the impugned conviction and the consequent sentence recorded/imposed by the trial court is so wholly incorrect and erroneous that it is only a matter of time for the same to be set aside and that ordering a deposit would be unnecessarily burdensome for the appellant. Such firm opinion could be formed on a plain reading of the order, such as, the conviction might have been recorded and sentence impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, 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' in sub-section (1). Since the self-same section, read as a whole, reveals that 'may' has been used twice and 'shall' thrice, it must be presumed that the legislature was well and truly aware of the words used which form the skin of the language. Reading and understanding the words used by the legislature in the literal sense does not also result in manifest absurdity and hence tinkering with the same ought to be avoided at all costs. We would, therefore, read 'may' as 'may' and 'shall' as 'shall', wherever they are used in Section 148. This is because, the words mean what they say. 28. In such view of the matter and for the foregoing reasons, we are unhesitatingly of the view that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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