Honble PASAYAT, J.–Leave granted.

(2). Appellants call in question legality of the order passed by a learned Single Judge of the Jharkhand High Court dismissing the petition filed by the appellants.

(3). Background facts in a nutshell are as follows: Alleging that PW4 (hereinafter referred to as the victim) was subjected to rape, attracting punishment under Section 376 of the Indian Penal Code, 1860 (in short the IPC) First Information Report (in short the "FIR) was lodged by the informant. The date of occurrence was stated to be 30.5.1992. The charge sheet was filed on 29.9.1994. The examination of witnesses after framing of charges continued from 1994 to 2004. After examination of several witnesses on 18.5.2004 the trial court directed the production of further witnesses, if any. Since no prosecution witness was present on 18.5.2004, 28.5.2004 and 10.6.2004, evidence of prosecution was closed. On 16.6.2004 the statement of accused persons was recorded under Section 313 of the Code of Criminal Procedure, 1973 (in short the Code). The evidence of the defence witnesses was recorded between 25.6.2004 and 13.12.2004. Thereafter the matter was placed for argument. At this stage an application purported to be under Section 311 of the Code was filed for recalling of the victim for further cross examination on the ground that the parties have settled the dispute outside the Court at the intervention of the well-wishers and also the informant could not identify the persons who allegedly committed the offence due to darkness. The trial court rejected the application by order dated 1.4.2005. The trial court was of the view that in view of the circumstances indicated it would not be proper to allow the application of the accused for recalling the victim. The same was accordingly dismissed. It was noted that the case was pending for trial for more than ten years. Application in terms of Section 482 of the Code was filed before the High Court which was dismissed by the impugned order. The High Court was of the view that the compromise petition which was annexed to the petition under Section 482 of the Code referred to purported compromise between the parties. The High Court noted that Section 376 of IPC is not compoundable and when the victim was examined and cross examined during trial, the prayer to recall the victim is not acceptable. Accordingly the petition was rejected.

(4). In support of the appeal, learned counsel for the appellants submitted that when parties have settled the disputes continuance of the proceeding would not be in the interest of the justice and the High Court should have exercised jurisdiction under Section 482 of the Code.

(5). Learned counsel for the State on the other hand supported the orders passed by the trial court and the High Court.

(6). The scope and ambit of Section 311 of the Code, which reads as follows, needs to be noted:

"311. Power to summon material witness, or examine person present. - Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in a 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 it to be essential to the just decision of the case."

(7). The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just d

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