THE USE OF THE WORD, ‘NECESSARY’ BY SUPREME COURT
Before parting with this judgment, it is necessary to consider the decision of this Court in the case of Jalai Suguna (deceased) through L.Rs. vs. Satya Sai Central Trust and others, ((2008) 8 SCC 521) cited by the learned senior counsel for the appellant. In Jalai Suguna (supra), this Court held that the intestate heir (husband) and the testamentary legatees (nieces and nephews), seeking impleadment as the heirs of the deceased respondent in an appeal have to be brought on record before the Court can proceed further in the appeal. Furthermore, in that decision it was also held that a legatee under a Will, who intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased testator, will be a legal representative. In view of the aforesaid discussions and in view of the decision reported in Jalai Suguna (supra), we are also of the view that in an eviction proceeding, when a legatee under a Will intends to represent the interest of the estate of the deceased testator, he will be a legal representative within the meaning of Section 2(11) of Code of Civil Procedure, for which it is not necessary in an eviction suit to decide whether the Will on the basis of which substitution is sought for, is a suspicious one or that the parties must send the case back to the probate Court for a decision whether the Will was genuine or not.[AIR 2010 SC 344 ]
Reference may be made to Section 311 of the Code which reads as follows : “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 attendance, though not summoned as a witness or recall and re-examine any person if his evidence appears to it to be essential to the just decision of the case.”The section is manifestly in two parts. Whereas the word used in the first part is “may”, the second part uses “shall”. In consequences, 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 any one as a witness, or (b) to examine any person present in 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 decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the Court duty of examining a material witness who would not be brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.[AIR 2009 SC 69 ]
The provision defines robbery which is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough[AIR 2008 SC 1199 ]
Thus, the Act is a special Act relating to a matter of passport, whereas Section 104 of the Cr.P.C. authorizes the Court to impound document or thing produced before it. Where there is a special Act dealing with specific subject, resort should be had to that Act instead of general Act providing for the matter connected with the specific Act. As the Passports Act is a special Act, the rule that “general provision should yield to the specific provision” is to be applied. See : Dam Valaji Shah and another v. Life Corporation of India and others (AIR 1966 SC 135). Gobind Sugar Mills Ltd. v. State of Bihar and others (1999) 7 SCC 76) and Belsund Sugar Co. Ltd. v. State of Bihar and others (AIR 1999 SC 3125).The Act being a specific Act whereas Section 104 of Cr. P. C. is a general provision for impounding any document or thing, it shall prevail over that section in the Cr. P. C. as regards the passport. Thus, by necessary implication, the power of Court to impound any document or thing produced before it would exclude passport[AIR 2008 SC 1414 ]
Reading from Code of Criminal Procedure, 1898[Now repealed]
The word ‘necessary’ comes around 190 times: Few examples on usages
- with any necessary modifications [s-1]
- by necessary implication[s-10]
- as maybe considered necessary to be Judicial Magistrates [s-12]
- may be necessary for preserving the peace [s-14]
- it shall not be necessary for the Court [s-35]
- State Government, in consultation with the High Court, where necessary, otherwise directs[s-40]
- such police officer or other person may use all means necessary to effect the arres [s-46]
- The person arrested shall not be subjected to more restraint than is necessary to prevent his escape [s-50]
- without unnecessary delay[s-59]
- The documents and things contemplated by Section 95 are those which are necessary for the purpose of investigation, inquiry, trial or other proceedings [s-94]
- Section 110 deems it necessary to require any person to show cause [s-112]
- (2) If, upon consideration of all the documents referred to in Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him. (3) If, upon such documents being considered, such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused[s-251A]
The Code of Criminal Procedure, 1989[ Jammu and Kashmir] [ Now Repealed] provided
251A. Procedure to be adopted in cases instituted on police report. –
(1) when, in any case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of a trial, such Magistrate shall satisfy himself that the documents referred to in section 173 have been furnished to the accused, and if he finds that the accused has not been furnished with such documents or any of them, he shall cause them to be so furnished.
(2) If, upon consideration of all the documents referred to in section 173 and making such examination, if any of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused’ an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him.
(3) If, upon such documents being considered,, such examination, if any being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
The word ‘necessary’ comes around 100 times: Few examples on usages :
- Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry[S-91]
- other person having the lawful charge or such child, and may compel compliance with such order, using such force as may be necessary[s-98]
- if necessary, enforce such attendance in the manner here in before provided[s-205]
- When accused shall be discharged: If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
- When documents are put for the purpose of formal proof, it shall be in the discretion of the Court to interpret as much thereof as appears necessary[S-279]
Before examining the facts of the present petition, it is necessary to encapsulate the conditions necessary for the exercise of the designate’s power under Section 11(6) and the judicial determinations necessary by the designate at the stage of Section 11(6). In addition to the conditions already enumerated in the Section, the judgment in Patel Engineering (supra) provides that:
“The Chief Justice or the designated judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. These will be his own jurisdiction to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators……………..”3Ibid. at p.663 (paragraph 47), per Balasubramanyan, J.
Further, it has also been held that the determination of certain preliminary jurisdictional issues is mandatory for the designate:
“It is necessary to define what exactly the Chief Justice, approached with an application under Section 11 of the Act, is to decide at that stage. Obviously, he has to decide his own jurisdiction in the sense whether the party making the motion has approached the right High Court. He has to decide whether there is an arbitration agreement, as defined in the Act and whether the person who has made the request before him, is a party to such an agreement. It is necessary to indicate that he can also decide the question whether the claim was a dead one; or a long barred claim that was sought to be resurrected and whether the parties have concluded the transaction by recording satisfaction of their mutual rights and obligations or by receiving the final payment without objection. It may not be possible at that stage, to decide whether a live claim made, is one which comes within the purview of the arbitration clause. It will be appropriate to leave that question to be decided by the Arbitral Tribunal on taking evidence, along with the merits of the claims involved in the arbitration. The Chief Justice has to decide whether the applicant has satisfied the conditions for appointing an arbitrator under Section 11(6) of the Act.”4[AIR 2006 SC 3456 ]
The question which, therefore, requires consideration is whether the appellant has made out any ground for exercising discretion in his favour of not striking out his defence. According to Black’s Law Dictionary “judicial discretion” means the exercise of judgment by a judge or Court based on what is fair under the circumstances and guided by the rules and principles of law; a Court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right. The word “discretion” connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard-and-fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of the facts upon which the discretion may properly operate. (See 27 Corpus Juris Secundum page 289). When it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice and not according to private opinion; according to law and not humour. It only gives certain latitude or liberty accorded by statute or rules, to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him.[AIR 2005 SC 15 ]
So, form the above discussion it can be said that the meaning of the word ‘ Necessary’ is variable term without having a fixed meaning. If something is necessary for X circumstances , that may not be necessary for Y circumstances.