When a statute is passed for the purpose of enabling something to be done, and prescribed the way in which it is to be done, it may be either an absolute enactment or a directory enactment.
The difference being that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.
No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience.
The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the Courts from the evidence that any person not being the accused has committed any offence, the Court may proceed against him for the offence which he appears to have committed. At that stage, the Court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatory to be commenced afresh and the witnesses re-heard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words ‘could be tried together with the accused’ in Section 319(1), appear to be only directory. ‘Could be’ cannot under these circumstances be held to be ‘must be’. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court.
The mandate of the law of fresh trial is mandatory whereas the mandate that newly added accused could be tried together the accused directory. The construction to be placed on a provision like this has to commend to justice and reason. It has to be reasonable construction to promote the ends of justice. The words ‘could be tried together with the accused’ in Section 319(1) cannot be said to be capable of only one construction. If it was so, approach to be adopted would be different since the intention of the Parliament is to be respected despite the consequences of interpretation. There is, however, a scope for two possible construction. That being the position, a reasonable and common sense approach deserves to be adopted and preferred rather than a construction that would lead to absurd result of newly added escaping the trial despite passing on an order against him on Court’s satisfaction under Section 319(1) and despite the fact that the proceedings against him have to commence afresh.
Moreover, a Magistrate is empowered to take cognizance of an offence in the manner provided under Section 190 of the Code. Section 209 enjoins upon a Magistrate to commit the case of the Court of Session when it appears to the Magistrate that the offence is triable exclusively by the Court of Session. Section 193 provides for the power of the Court of Session to take cognizance of any offence. It uses the expression ‘cognizance of any offence’ and not that of ‘offender.’ These three provisions read with Section 319 make it clear that the words ‘could be tried together with the accused’ in Section 319 is only for the purpose finding out whether such a person could be put on trial for the offence. Once it is so found, sub-section (4) of Section 319 comes into play [Shashikant Singh v. Tarkeshwar Singh and Anr. (2002) 5 SCC 738]