IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.20544 of 2008 VIJAY KUMAR SHUKLA @ MUNNA SHUKLA Versus THE UNION OF INDIA THRU. CBI. ----------- 5 10-7-2008 Heard learned counsel for the petitioner and the learned counsel representing the Union of India. The petitioner is aggrieved by order, dated 12.5.2008 passed by the Addl. Sessions Judge III, Patna in Sessions Trial No. 613 of 2002 whereby and the court below has rejected the petition filed on behalf of the petitioner under section 311 of the Code of Criminal Procedure for examining Sheo Balak Singh as a witness. The contention raised on behalf of the petitioner is that Sheo Balak Singh was one of the two injured witnesses in the occurrence for which the petitioner is facing trial and the prosecution has not examined him although he is an important witness. It is contended that section 311 of the Cr. P. C. provides that the court MAY at any stage of enquiry, trial or other proceeding under the code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined; and the court SHALL summon and examine or recall and reexamine any such person if his evidence appears to be essential to the just decision of the case. This section is in two parts. The word ‘MAY’ is used in the first part of the section and the second word is ‘SHALL’. The word ‘MAY’ indicates that the power to recall a witness is purely discretionary whereas in the second part the use of the word ‘SHALL’ 2 indicates that it is mandatory and compels the court to take any of the aforesaid steps if the new evidence appears and the court feels it essential to examine the witness for a just decision in the case. In the present case it has been contended on behalf of the petitioner that if Sheo Balak Singh who was examined by the Investigating officer, is examined in court as a witness, the actual facts would be revealed and prosecution case would be discredited to some extent. Learned counsel appearing on behalf of the opposite party, on the other hand, relies on the well settled principle of law which is also indicated in the order of the court below. It is stated that the prosecution has to prove the charges framed against the accused persons beyond all reasonable doubt and if the prosecution fails to prove the charges or withholds important witnesses, the prosecution will face the consequences and the benefit would definitely go to the defence. In the light of the discussions made above, I find that there is no illegality in the impugned order and there is no merit in this application. It is accordingly dismissed. haque (Sheema Ali Khan, J.)