The Magistrate is required to record evidence of eye-witnesses and other witnesses in the interest of justice, and a committal order based solely on police papers is not justified.

A.H. Khan, J

[1] These two references by the learned Sessions Judge of Indore raise a common point, namely, whether a Committing Magistrate Is justified in making a commitment on the basis of Police record under Section 173, Criminal P. C., without taking any evidence whatsoever.

It seems that in both the cases under references, the Magistrate has committed without recording any evidence under Section 207A of the Code and his committal order rests solely on his consideration of the Police papers submitted to the Magistrate under Section 173 of the Code. Since the point involved is common, both the references are disposed by a single order.

[2] The Code of Criminal Procedure of 1898 has undergone changes in many important respects by the Criminal Procedure (Amendment) Act 26 of 1955. In Chapter 18, which relates to inquiry into cases triable by the Court of Session or High Court, Section 207A is an altogether new section, designed to introduce changes in the procedure adopted in committal proceedings in cases instituted or, police report. And it is Sub-section (4) of this section in particular which has to be considered.

[3] According to this section, the first thing the Magistrate is to do on receiving the police report is to fix a date for holding an inquiry and this date shall not be later than 14 days from the date of receipt of the report. If the Magistrate fixes any later date, he shall record reasons.

[4] The second thing the Magistrate is to do is to issue processes for attendance of witnesses or production of documents, should the police desire so.

[5] The third thing which the Magistrate is to do is to see that copies referred to in Section 173 of the Code are supplied to the accused. If they are not supplied, the Magistrate shall see that they are made available to him.

[6] The fourth thing required by the section is the recording of evidence by the Magistrate. Sub-section (4) of Section 207A runs thus and it is this subsection which is to be construed:

The Magistrate shall then proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged; and if the Magistrate is of opinion that it is necessary in the interest of justice to take the evidence of any one or more of the other witnesses of the prosecution, he may take such evidence also.

[7] The sub-section can be conveniently divided into two parts. The first part deals With the duty of the prosecution to examine persons, if any, who have witnessed the actual commission of the alleged offence i.e., who are eye-witnesses. The second part, beginning after semicolon and opening with the conjunction 'and' directs the Magistrate to record evidence of other witnesses also under certain circumstances.

[8] According to the first part of the sub-section the Magistrate shall record evidence of such eyewitnesses as may be produced by prosecution. What is the force of the word 'may' used in the first part of the sub-section? The question is : does it depend on the sweet will of the prosecution to examine eye-witnesses, or is it the duty of the prosecution to examine eye-witnesses before the committing Magistrate? The word 'may' usually invests a person with discretion to do or not to do a thing.

If 'may' is understood in this sense of the term, then the prosecution in its discretion may examine eye-witnesses and it may not. If the prosecution decides not to examine eye-witnesses, the Court would be helpless. It is obvious to any one familiar with criminal work that if this interpretation is allowed to prevail, then very important piece of evidence would be allowed to slip through the fingers of the Magistrate. I am of the opinion that the word 'may' should be construed as 'shall'.

[9] When in a statute the word 'may' is used, it sometimes gives rise to controversy as to whether it confers authority which is merely enabling, or, is it mandatory? It has been held in a number of cases that 'm