Holding

A subsequent petition under Section 482, Cr.PC is maintainable despite the earlier petition’s withdrawal, as res judicata does not apply to criminal proceedings and a change in law provides a valid ground to entertain the fresh petition.

Summary

The appellants were convicted under Section 138 of the Negotiable Instruments Act and ordered to pay a compensation of Rs.74,00,000, with the Sessions Court directing a 20% deposit of that amount. They challenged the deposit condition through a petition under Section 482 of the Criminal Procedure Code, which the High Court dismissed as withdrawn because the earlier petition had been withdrawn without leave to re‑file. After the Supreme Court’s decision in Jamboo Bhandari, which allowed discretion to waive the deposit in exceptional cases, the appellants filed a fresh petition, which the High Court again dismissed on the ground of procedural impropriety. The Supreme Court held that the principle of res judicata does not apply to criminal proceedings and that a change in law constitutes a vital change in circumstance permitting the High Court to entertain a subsequent petition. It further clarified the interpretation of the verbs “may” and “shall” in Section 148 of the Negotiable Instruments Act, affirming that “may” confers discretion while “shall” imposes a mandatory minimum. Consequently, the Court set aside both the High Court and Sessions Court orders and remitted the matter to the Sessions Court to reconsider the deposit requirement in light of the newer law. The appeal was allowed.

Issues considered

The High Court's dismissal of a subsequent petition under Section 482, Cr.PC, on the ground that the earlier petition was withdrawn without leave, is legally justified.
Whether the principle of res judicata applies to successive criminal petitions under Section 482, Cr.PC.
Interpretation of the verbs ‘may’ and ‘shall’ in Section 148 of the Negotiable Instruments Act regarding the discretion to order a deposit.
Whether a change in law (Jamboo Bhandari judgment) constitutes a sufficient change in circumstance to permit a fresh petition under Section 482, Cr.PC.

Legislation cited

Code of Civil Procedure, 1908s. 11, s. 115
Code of Criminal Procedure, 1973s. 357(3), s. 389, s. 482
Negotiable Instruments Act, 1881s. 148

Headnote

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 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

Subjects

Subsequent petition u/s.482, Cr.PCEarlier petition withdrawnDeposit 20% of compensation amountSurinder Singh Deswal’s caseCondition for deposit in terms of s.148, N.I. ActJamboo Bhandari’s casePrinciple of res judicataAbuse of the process of courtVerb “may” and “shall”Text to be read as set in contextLegislative intentQuantum of depositCompensationMandatory or directory in characterTextual interpretationContextual interpretationEnactment to be looked at as a whole

Judgment

[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.

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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’ 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]
1276 [2024] 12 S.C.R.

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Case Law Cited
Surinder Singh Deswal @ Col. S. S. Deswal v. Virender Gandhi
[2019] 8 SCR 746 : 2019 (11) SCC 341; Jamboo Bhandari v.
Madhya Pradesh State Industrial Development Corporation Ltd.
and Ors. (2023) 10 SCC 446; S.M.S. Pharmaceuticals Ltd. v.
Neeta Bhalla [2007] 2 SCR 862 : (2007) 4 SCC 70; Devendra v.
State of U.P. [2009] 7 SCR 872 : (2009) 7 SCC 495; Bhisham
Lal Verma v. State of U.P. [2023] 14 SCR 55 : 2023 SCC
OnLine SC 1399; Reserve Bank of India v. Peerless General
Finance & Investment Co. Ltd. [1987] 2 SCR 1 : AIR 1987 SC
1023 – referred to.

List of Acts
Negotiable Instruments Act, 1881; Code of Criminal Procedure,
1973; Code of Civil Procedure, 1908.

List of Keywords
Subsequent petition u/s.482, Cr.PC; Earlier petition withdrawn;
Deposit 20% of compensation amount; Surinder Singh Deswal’s
case; Condition for deposit in terms of s.148, N.I. Act; Jamboo
Bhandari’s case; Principle of res judicata; Abuse of the process
of court; Verb “may” and “shall”; Text to be read as set in context;
Legislative intent; Quantum of deposit; Compensation; Mandatory
or directory in character; Textual interpretation; Contextual
interpretation; Enactment to be looked at as a whole.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
5491 of 2024
From the Judgment and Order dated 18.05.2024 of the High Court
of Punjab & Haryana at Chandigarh in CRM-M No. 25041 of 2024

Appearances for Parties
Ms. Shumaila Altaf, Harvinder Singh Mann, Sakib Altaf, Abhimanue
Shrestha, Advs. for the Appellants.
Mohd Irshad, A.A.G., Karan Sharma, Dilpreet Singh Gandhi,
Nishant Bishnoi, Ms. Srishti Prabhakar, R. C. Goutam, Advs. for
the Respondents.
[2024] 12 S.C.R. 1277

Muskan Enterprises & Anr. v. The State of Punjab & Anr.

Judgment / Order of the Supreme Court

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 Chandigarh1
dismissing a petition2 under Section 482 of the Code of Criminal
Procedure, 19733 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, 18814 had been recorded against the appellants
by the Judicial Magistrate, 1st Class, Amloh, District Fatehgarh5 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.6
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

1 High Court
2 CRM-M-25041-2024
3 Cr. PC
4 N. I. Act
5 trial magistrate
6 Sessions Court
1278 [2024] 12 S.C.R.

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deposit subject to furnishing an undertaking that the same would be
returned, if the appellants succeeded in the appeal.
6. Imposition of such condition by the Sessions Court for deposit of 20%
of the compensation awarded by the trial magistrate was questioned
by the appellants before the High Court in a petition7 filed under
Section 482, Cr. PC.
7. The said petition was considered by the High Court on 01st May,
2023, i.e., at a point of time when the decision of this Court in
Surinder Singh Deswal @ Col. S. S. Deswal vs Virender Gandhi8
was governing the field on interpretation of Section 148 of the N.I.
Act. The said decision held the condition for deposit in terms of
Section 148, N.I. Act as mandatory.
8. Learned counsel appearing for the appellants had argued for some
time. However, having found that his arguments would yield no fruitful
result since the High Court was bound by the ratio of the decision
in Surinder Singh Deswal (supra), he made a statement that the
appellants would withdraw the petition. Accordingly, an order was
passed to the effect that the petition stands dismissed as withdrawn.
9. Close on the heels of dismissal of the said petition of the appellants,
as withdrawn, came the decision of another coordinate bench of this
Court in Jamboo Bhandari v. Madhya Pradesh State Industrial
Development Corporation Ltd. and ors.9. Upon consideration of
the law laid down in Surinder Singh Deswal (supra), the bench in
Jamboo Bhandari (supra) proceeded to hold as follows: -
“6. What is held by this Court is that a purposive
interpretation should be made of Section 148 of the NI
Act. Hence, normally, Appellate Court will be justified in
imposing the condition of deposit as provided in Section
148. However, 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 CRM-M-21715-2023
8 [2019] 8 SCR 746 : 2019 (11) SCC 341
9 (2023) 10 SCC 446
[2024] 12 S.C.R. 1279

Muskan Enterprises & Anr. v. The State of Punjab & Anr.

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 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 procedural laws governing criminal proceedings and civil
proceedings in our country are quite dissimilar, though the rule of
audi alteram partem and a procedure that is both fair and reasonable
to both/all parties for rendering justice are at the heart of both the
Cr. PC and the Code of Civil Procedure, 1908.10 The principle of res
judicata, traceable in Section 11 of the CPC, does neither apply to
criminal proceedings nor is there any provision in the Cr. PC akin
to Order XXIII Rule 1(3), CPC. While Section 114 of the CPC read

10 CPC
1280 [2024] 12 S.C.R.

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with Order XLVII thereof empowers the civil courts to exercise the
power of review, Section 362, Cr. PC bars a review. 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.
15. The legal position as to whether a second petition under Section
482, Cr. PC would be maintainable or not is no longer res integra.
We may notice a few decisions of this Court on the point.
16. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla,11 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.
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.12
18. Recently, this Court in Bhisham Lal Verma v. State of U.P,13 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

11 [2007] 2 SCR 862 : (2007) 4 SCC 70
12 [2009] 7 SCR 872 : (2009) 7 SCC 495
13 [2023] 14 SCR 55 : 2023 SCC OnLine SC 1399
[2024] 12 S.C.R. 1281

Muskan Enterprises & Anr. v. The State of Punjab & Anr.

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 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. In terms of the authorities referred to above,
the subsequent petition was well-nigh maintainable.
21. That the decisions in Surinder Singh Deswal (supra) and Jamboo
Bhandari (supra) have been rendered by benches of co-equal
strength have not escaped our notice. However, notwithstanding
the legal position that a cleavage of opinion is discernible owing to
Jamboo Bhandari (supra) seeking to explain the law by reading a
limited discretion that an Appellate Court has been conferred with
by sub-section (1) of Section 148, which the decision in Surinder
Singh Deswal (supra) did not read, the latter bench while deciding
the matter before it having considered the decision of the former
bench, it is the decision of the latter bench which is now the law.
22. Although a reference to a larger bench would have been appropriate
in view of the divergent views expressed in the said decisions, we
share the later view expressed in Jamboo Bhandari (supra); and,
we consider it proper to assign our own reason therefor.
23. However, this must be preceded by reading Section 148 of the N.I.
Act. It reads:
“148. Power of Appellate Court to order payment pending
appeal against conviction.—(1) Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2
of 1974), in an appeal by the drawer against conviction
under Section 138, the Appellate Court may order the
1282 [2024] 12 S.C.R.

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appellant to deposit such sum which shall be a minimum
of twenty per cent of the fine or compensation awarded
by the trial Court:
Provided that the amount payable under this sub-section
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
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 substance.
[2024] 12 S.C.R. 1283

Muskan Enterprises & Anr. v. The State of Punjab & Anr.

The substance, rather than the form, being relevant, ultimately it is
a matter of construction of the statute in question that is decisive.
25. It is also a well-accepted rule that interpretation must depend on
the text and the context - the text representing the texture and the
context giving it colour – and, that interpretation would be best, which
makes the textual interpretation match the contextual. While wearing
the glasses of the statute-maker, the 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 a 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. We draw inspiration for the
above understanding of the manner of interpreting a statute from
the decision of this Court in Reserve Bank of India v. Peerless
General Finance & Investment Co. Ltd.14
26. Wearing the glasses of the statute-maker, we need to read the text
as set in the context. What is most significant is that the legislature
has used both the verbs ‘may’ and shall’ in sub-section (1) of
Section 148, N.I. Act, but in different contexts. As we read and
understand the sub-section, what we find is that the verb ‘may’,
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. 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

14 [1987] 2 SCR 1 : AIR 1987 SC 1023
1284 [2024] 12 S.C.R.

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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 imposed without adherence
to the mandatory procedural requirements of the N.I. Act prior to/at
the time lodging of the complaint by the complainant rendering the
proceedings vitiated, or the trial court might have rejected admissible
evidence from being led and/or relied on inadmissible evidence which
was permitted to be led, or the trial court might have recorded an
order of conviction which is its ipse dixit, without any assessment/
analysis of the evidence and/or totally misappreciating the evidence
on record, or the trial court might have passed an order failing
to disclose application of mind and/or sufficient reasons thereby
establishing the link between the appellant and the offence, alleged
and found to be proved, or that the compensation awarded is so
excessive and outrageous that it fails to meet the proportionality
test : all that, which would evince an order to be in defiance of the
applicable law and, thus, liable to be labelled as perverse. These
instances, which are merely illustrative and not exhaustive, may
not arise too frequently but its possibility cannot be completely
ruled out. It would amount to a travesty of justice if exercise of
discretion, which is permitted by the legislature and could indeed
be called for in situations such as these pointed out above, or in
any other appropriate situation, is not permitted to be exercised
by the Appellate Court by a judicial interpretation of ‘may’ being
read as ‘shall’ in sub-section (1) of Section 148 and the aggrieved
[2024] 12 S.C.R. 1285

Muskan Enterprises & Anr. v. The State of Punjab & Anr.

appellant is compelled to make a deposit of minimum 20% of the
fine or compensation awarded by the trial court, notwithstanding any
opinion that the Appellate Court might have formed at the stage of
ordering 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’ 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 the impugned order of the High
Court declining to entertain the subsequent petition under Section
482, Cr. PC of the appellants is unsustainable in law. However, we
do not consider the need to remit the matter to the High Court for
consideration of the subsequent petition under Section 482, Cr.
PC; instead, in our view, justice would be sufficiently served if the
Sessions Court re-examines the issue of deposit being required to be
made by the appellants in the light of the law laid down in Jamboo
Bhandari (supra) and the observations made hereinabove.
1286 [2024] 12 S.C.R.

Supreme Court Reports

29. Consequently, the impugned order of the High Court dated 18th May,
2024 and the Sessions Court’s order dated 17th October, 2022, stand
set aside. The matter is remitted to the Sessions Court to re-examine
the issue of ordering deposit. Whether sufficient ground has been
made out by the appellants to persuade the Sessions Court not to
order any deposit is left entirely to its discretion and satisfaction.
We do not express any opinion on the plea that the appellants have
sought to advance before us, lest any party seeks to derive any
advantage. All points are left open.
30. Subject to its convenience, we expect the Sessions Court to pass
an appropriate order bearing in mind the facts and circumstances
presented before it as early as possible.
31. In the result, the appeal stands allowed to the extent as mentioned
above.
32. Pending application(s), if any, shall stand disposed of.

Result of the case: Appeal allowed.

†
Headnotes prepared by: Nidhi Jain