Judgment :- 1. This is a reference made by the learned Sessions Judge of Trivandrum under S.438, Criminal Procedure Code, recommending to this court that the order made by the learned Second Class Magistrate of Neyyattinkara, in P.E. No. 8 of 1955 on his file, committing the two accused persons in that case for trial before the court of Sessions for commission of offences punishable under S.302 and 341, 201 and 34 I.P.C., should be quashed on account of the learned Magistrate's failure to comply with the provisions in sub-s. 4 of S.207-A, Criminal Procedure Code. The case was instituted on a police report and with reference to cases triable by the court of Sessions or High Court when the initiation of the proceeding is by such a report, S.207-A, introduced into the Code by S.29 of the Amendment Act XXVI of 1955, provides a more simplified form of procedure than before. Sub-s. (4), with which alone we are concerned here, is in these terms: "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 interests of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also." 2. The order of committal passed by the learned Second Class Magistrate is on the strength of the records furnished to the accused as provided in S.173(4), as amended by Act XXVI of 1955 and without himself recording any evidence. On reading the committal order the learned Sessions Judge felt a doubt whether regard being had to the fact that the case was one where the prosecution was depending upon the evidence of witnesses to the actual commission of the offences alleged, the prosecution was justified in not producing those witnesses for examination before the Magistrate and whether the Magistrate rightly proceeded to pass the committal order without examining them at least, even if he felt that the discretion vested in him under the latter part of the sub-section, that is "to take the evidence of any one or more of the other witnesses for the prosecution" need not be invoked. The learned judge therefore issued notices to the Public Prosecutor and to the accused to hear the question as a preliminary point and after hearing them passed the order of reference now before us. The reasoning of the order is contained in Para.2 thereof and that reads: "It seems to me, that on a proper reading of sub-s. 4 of S.207-A, the Magistrate is bound to proceed to take the evidence of witnesses relating to the actual commission of the offence alleged, and that no discretion is left to him in this matter, his only discretion being in respect of the examination of other witnesses. The object of the section appears to be, to give notice to the accused of what the principal witnesses are expected to speak to and to enable the accused at the trial to test their veracity by comparing their testimony at the trial with the evidence recorded by the Magistrate. This object cannot be served on account of the failure of the Magistrate to comply with the section, the failure may occasion prejudice to the accused at the trial, which has to be avoided." 3. If we may say so, the sub-section is not very happily worded and the difficulty to construe it has been felt by every commentator of the Code as amended by Act XXVI of 1955. On a careful reading of the sub-section to our minds it would appear that what it enacts is that when the proceeding before the committal court has passed the stages mentioned in sub-ss.1 to 3 and reached the stage envisaged in sub-s. 4, that court shall take the evidence of the witnesses to the actual commission of the offence alleged, while it is discretionary whether any other witnesses should be examined or not. The words, 'if any' in the sub-section really present difficulties. A close reading of the sub-section will, however show that those words relate to the expression'witnesses to the actual commission of the offence alleged'. The prosecution is bound to produce witnesses to the actual commission of the offence alleged and the court has no discretion to refuse to examine them. Its discretion is confined to the examination of any other witness. 4. The prosecution is bound to produce witnesses to the actual commission of the offence alleged and the court has no discretion to refuse to examine them. Its discretion is confined to the examination of any other witness. 4. The word 'may' occurring in the expression "as may be produced by the prosecution as witnesses to the actual commission of the offence alleged" does not entitle the prosecution to exercise any discretion. As will be seen from recognised text books on statutory interpretation the word 'may' is sometimes equivalent to 'shall' and to us it looks fairly clear that it is in that sense the word is used in the sub-Section. Reference may in this connection be usefully made to Craies on Statute Law (Fifth Edition) page 264, where references are made to many leading authorities on the question. The following extract may with advantage be quoted here: "And Lord Blackburn said: 'The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right'. In R. v. Bishop of Oxford (1879), 4 Q.B.D. 245, 258 so long ago as the year 1693, it was decided in the case of R. v. Barlow, (1693) 2 Salk 609 - that when a statute authorises the doing a thing for the sake of justice or the public good, the word 'may' means shall and that that rule has been acted upon to the present time ". 5. No doubt the amendments introduced by Act XXVI of 1955 are intended to simplify and speed up the trial of criminal cases. However on looking into the history of the particular amendment it is difficult to hold that the Legislature intended to leave the matter of the examination before the committal court of the eye witnesses to the commission of the offence alleged, entirely to the discretion of the prosecution. If 'may' is to be understood in its ordinary enabling sense the above would be the result. 6. The following quotation from M.K. Krishnaswami Iyars's commentaries to the Code as amended by Act XXVI of 1955 supports the view we set out above. Referring to S.207-A the learned Commentator states: (Pages 89-90- Parallel and Case noted Criminal Procedure Code (Act V of 1898, as amended by Act XXVI of 1955). "This section has been inserted by S.29 of the Amendment Act XXVI of 1955. Referring to S.207-A the learned Commentator states: (Pages 89-90- Parallel and Case noted Criminal Procedure Code (Act V of 1898, as amended by Act XXVI of 1955). "This section has been inserted by S.29 of the Amendment Act XXVI of 1955. The Government Bill contemplated the abolition of commitment proceedings in prosecutions instituted on police report. S.207-A as proposed by Government, empowered the Magistrate to decide whether the accused should be committed for the trial or not after perusal of all the documents relevant to the case, and examination of the accused, if necessary, and after giving the prosecution and the accused an opportunity of being heard, but without their witnesses being examined. That section was re-drafted by the Select Committee retaining the committal proceedings in case instituted on police report but recommending a much shorter procedure than that prescribed for cases instituted on private complaint. Their report says that as the proposal in the Government Bill requiring the police officer in all cases of offences triable by the Court of Session to get the statements of all the material witnesses recorded under S.164, has been dropped it has been "provided that persons who have witnessed the actual commission of the alleged offence should be produced before the Magistrate and he should record their statements. The Magistrate has also been given the discretion to record the statements of any one or more of the other witnesses, if he considers it necessary to do so. The Magistrate shall take into consideration the statements recorded by the police under sub-s. (3) of S.161 and all other documents referred to in S.173 along with the statements recorded by him. If he finds that these statements and documents disclose no grounds for committing the accused person for trial, he may discharge the accused. Otherwise the accused should be committed for trial and the Magistrate shall frame a charge which should be read and explained to the accused. In order to avoid delay in the disposal of these cases, it has been provided that the Magistrate should, on receipt of a report forwarded under S.173, fix a date for the recording of the statements of witnesses which shall be not later than fourteen days from the date of the receipt of the report". The Loka Sabha accepted several amendments to S.207-A as drafted by the Committee. The Loka Sabha accepted several amendments to S.207-A as drafted by the Committee. One of them substituted 'evidence' of 'statement' which the Magistrate is to record under Sub-s. (4). Another amendment allowed the Magistrate to record all the evidence of witnesses whose statements had already been recorded under S.164. Under Sub-s. (4) as drafted by the committee there was a proviso precluding the Magistrate from doing so and this proviso was dropped by the Lok Sabha. The third amendment accepted by the Lok Sabha allowed the accused the right to cross-examine eye witnesses and other witnesses whose evidence was recorded by a Magistrate. Sub-s. (5) as it emerged from the committee gave no right to the accused to cross examine but left it to the discretion of the Magistrate to put such questions to the witness as he thought necessary "The section as above amended was agreed to by the Rajya Sabha with one amendment which empowered the Magistrate to examine the accused only for the purpose of enabling him to explain any circumstances appearing in the evidence against him" ............................... 7. We are not unaware that resort to the history of the Legislation to construe the meaning of any provision therein is more often taken exception to than not. At the same time it is common knowledge that when the words of a statute are ambiguous attempts are not infrequently made to ascertain their true meaning by reference to the state of the law at the time the statute was passed, the mischief sought to be avoided and the stages through which the concerned legislation passed. The discussion at pages 91-92 and 120-121 in Craies on Statute Law will bear this out. 8. Having found that in a case where there are eye witnesses to the commission of the crime, the prosecution is bound to produce such witnesses before the committing Magistrate and that the Magistrate has no discretion to decline to examine them, we shall now examine the facts of the present case to decide whether the learned Sessions Judge's recommendation to quash the committal should be accepted or not. On page 4 of the Magistrate's original order it is stated: "Witness 5 and witness 6 swear that they saw the two accused inflicting injuries on the deceased on the night of the occurrence. On page 4 of the Magistrate's original order it is stated: "Witness 5 and witness 6 swear that they saw the two accused inflicting injuries on the deceased on the night of the occurrence. Witness 7 to witness 9 are to prove the wrongful restraint of the deceased by the accused and to the hurt caused to him." 9. Consistently with the view we have taken, as there are eye-witnesses to prove the actual commission of the offences alleged, we have to accept the reference and hold that the prosecution acted wrongly in not producing them for examination before the Magistrate and that the Magistrate was equally wrong in committing the case without recording their evidence. 10. The order of reference raises a further question whether in a case depending entirely on circumstantial evidence the prosecution is bound to produce the witnesses who seek to connect the accused with the commission of the crime alleged by proof of circumstances and whether the Magistrate can pass the order of committal without examining them. In our opinion, expressions such as 'witnesses to the actual commission of the offence' have come to have a recognised meaning in the language commonly employed in criminal courts and judgments and we cannot extend them to apply to witnesses who furnish circumstantial evidence to connect an accused person with the crime levelled against him. 11. It is to give the accused persons proper notice of the nature of the oral evidence as to the occurrence that the Legislature improved upon the original draft providing for the examination of the witnesses who speak to the actual commission of the crime. No doubt the result would be that even in respect of cases initiated on police reports, in some cases the Magistrates are bound to record evidence and in some others not. The position would look anomalous, but that we consider to be inevitable in view of the words employed in the sub-section. We cannot give to the words 'as witnesses to the actual commission of the offence' an extended meaning as given to them in the quotation the learned judge has made in his order from "Criminal Trials" by Sen and Roy. Whenever a committal court thinks that the interests of justice demand the examination of any witness, the sub-section enables the court to do so. 12. Whenever a committal court thinks that the interests of justice demand the examination of any witness, the sub-section enables the court to do so. 12. With these views and observations of ours, we accept the reference and accordingly quash the order of committal made in the case by the learned Second Class Magistrate of Neyyattinkara. The case will now go back to him for fresh enquiry and committal anew in due compliance with the provisions of Sub-s. 4 of S.207-A as interpreted by us in this order. Order accordingly.