Agya Ram and Others vs State of Uttar Pradesh

B.L. Yadav, J.—By the present application u/s 482 of the Code of Criminal Procedure, 1973 (for short the Code), the applicants have prayed that the order dated 3-5-1989 passed by the IInd Additional Sessions Judge, Jalaun (Annexure-6), rejecting the application of the accused for re-summoning DW 3 Balak Ram for re-examination as he has made an affidavit that he wants to state some correct facts, may be quashed in the exercise of inherent jurisdiction of the High Court.

It has been stated by the Learned Counsel for the applicants that DW 3 Balak Ram was examined in the sessions trial in pursuance of the directions of this Court dated 14-3-1988 (Annexure-1) directing him to be examined and veracity of his statement can be judged. The relevant portion of the judgment of this Court dated 14-3-1988 is set out below :

The order dated 6-2-1988 is set aside and the learned Ilnd Additional Sessions Juage, Orai is directed to complete the examination of Balak Ram in Sessions Trial No. 62 of 1985 State v. Agya Ram and Ors. and at the stage of final judgment he may decide the issue in the judgment by which he may rely or discard the evidence of the said defence witnesses, namely, Ram Charan and Balak Ram or even decide the question of admissibility or otherwise of their statements and deliver the judgment. In case there is any illegality in the final judgment in the matter of accepting or rejecting statement of the defence witnesses Ram Charan and Balak Ram, it shall be open for the applicants to challenge the appeal. The trial court may proceed expeditiously and finally decide the case. With the above observations this application is disposed of.

In pursuance of the aforesaid order of this Court DW 3 Balak Ram was examined by the Sessions Judge and statement was recorded. Thereafter an affidavit was filed by the said witness stating that he wants to make some other statement. After hearing the Learned Counsel for the parties, the learned Sessions Judge rejected the application by the impugned order.

The Learned Counsel for the applicants urged that the Sessions Judge must have re-examined Balak Ram DW 3 as first part of Section 311 of the Code was mandatory. Learned Counsel for the State, on the other hand, urged that first part of Section 311 was directory and second part of Section 311 was mandatory as it was obvious with the use of expressions �may� and �shall.� Reliance was placed on Sukhan v. State 1988 ACR 59 , Jamatraj Kewalji Govani Vs. The State of Maharashtra, , Mohd. Husain Umar Kochra etc. Vs. K.S. Dalipsinghji and Another etc., .

Ex abundanti cautela, the statutory provisions of Section 311 of the Code are set out blow :

Power to summon material witness, or examine person present : -- Any Court may, at any stage of any enquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

The language employed by the Legislature or express its intendment is noticeable. The words �may� and �shall� both have been employed. Some elementary rules of interpretation may be stated.

Sometime Statute, passed for enabling something to be done, gives a discretionary power to the persons who are to fulfil the objects sought to be achieved. In such matters, words �may� is used. But the word �may� is sometimes equivalent to word �shall�.

In R.V. Barlow (1693) 2 SALK 609 it was held that when a statute authorises doing of a thing for the sake of justice or the public, the word �may� means �shall�. The word �may� is equivalent to word �shall� when the object of legislature is to effectuate a legal right. Similarly even though legislature has used word �shall� but when it is with a reference to an enabling act and the intention of the legislature appears that the provision is just directory or permissive, and not obligatory or mandatory, in that event the word �shall� mean �may�.

With a view to determine whether a particular provision, is mandatory or directory, no general rule can be stated. Very often it is the duty of the court to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed. The use of expression �shall� is not decisive and the question whether a provision is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is expressed. The legislative intent is the determining factor which is to be ascertained in the context -- See M. Karunanidhi Vs. Dr. H.V. Hande and Others, and Ajit Singh and Others Vs. State of Punjab and Another, .

However, if the legislature has used both the expressions �may� and �shall� in the same Section or in the same provision, in my view the legislature was conscious about the meaning of both the expressions and in that event it is not safe to read the expression �may� for the word �shall� and vice versa. In the present case u/s 311 of the Code the legislature has used the word �may� and �shall� in the same provision. It means the legislature did not leave it to the discretion of the Court to interpret both the expressions. The first clause of Section 311 is to the effect, that at any stage of enquiry, trial or other proceedings if the court so requires it �may�, summon any person as witness or examine any person in attendance. Whereas it is mandatory for the Court to summon or eximine or recall any witness if his statement appears to be essential to the just decision of the case. To put it differently, if in order to arrive at a just and correct decision a witness has to be examined in that event it is mandatory for the Court to summon that witness. The object of law is to do justice in true sense. Once the Court is of the view that in order to have correct decision the re-examination of the witness is essential, in that event the Court shall have no option but to summon and re-examine that witness. It is accordingly crystl clear that word �shall� in second clause is mandatory and imperative in nature and character, and the word �may� in the first clause is directory. The rule of interpretation can be stated, in other words, that where the legislature uses the words �may� and �shall� together in two different parts of the same provision, prima facie it would appear that the legislature manifested its intention to make one part directory and another mandatory. But that by itself may not be decisive. The power of the Court, however, to ascertain the real intention of the legislature be carefully examining the scope of the statute to find out whether the provision is directory or mandatory, remains unimpaired, See Ganesh Prasad Sah Kesari and Another Vs. Lakshmi Narayan Gupta, .

In Sukhri v. State of U.P. (supra) the revision application was allowed, as earlier the application to recall the witnesses was rejected by a non speaking order and it was held that it was no order in the eye of law. In the instant case, however, the impugned order gives sufficient reasons and it is not a non speaking order. Further in that case the witnesses were not earlier examined and in the present case the witness has already been examined in detail in pursuance of the judgment of this Court and this Court was cautious in making observation, so that there may not arise any case to make subsequent application for re-examination of witnesses. It has been observed by this Court in its first order, that at the time of final judgment the sessions judge may decide the issue as to whether the statement can be relied upon or discarded and the admissibility of evidence shall be determined, and in case there was any illegality in the judgment of the trial court, the matter can be reagitated in appeal. The Court has further directed that the trial Court may proceed expeditiously and will finally decide the case. Consequently as witnesses have already, been examined and all precautions have been taken in the judgment of this Court, I am of the considered opinion that the above case of Sukri (supra) is besides the point.

In Jamatraj Kewalj Govani v. State of Maharashtra (supra), it was held that it is for the Court to consider whether new evidence is needed for just decision of the case. In the instant case the trial court has considered it in detail that the re-examination was not necessary for the just decision of the case. Consequently this case would also be of no assistance to the applicant.

Similarly in Mohd. Husain Umar Kochra v. K.S. Dalipsinghji (supra), the same view has been reiterated and it has been held under para 19 page 53 that the Court has inherent power to recall a witness if it is satisfied that he is prepared to give evidence which is materially different from what he had given at the trial. In the present case the witness his already been examined in pursuance of directions of this Court and the trial court was of the view that no further examination was required and the accused were trying to prolong the trial.

In view of the premises aforesaid, the present application is devoid of merits and it is hereby dismissed summarily. The Sessions Judge is, however, directed to dispose of the trial as expeditiously as possible.