- (1.) BARKAT Ali Zaidi, J. In the aforesaid criminal appeals, the common question for consideration is about the amendment of the Criminal Procedure Code, in Section 389 Cr. P. C. , whereby the following proviso has been added: "provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release. Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail. "
(2.) THE contention raised is that this proviso is only directory and not mandatory. A large section of the Bar was represented by Senior Lawyers, who have argued that this provision is only Directory and not Mandatory. It was argued by the Members of the Bar that compliance with this provision will entail undue hardship and even those persons whose involvement in the offences is nominal in nature will suffer, which would be wholly unjust and unfair. It was pointed out that there are a number of clauses in the Criminal Procedure Code where the word 'shall' has been used as in this Amendment, but the non-compliance thereof, does not entail any incurable illegality and the word 'shall' in these provisions is, therefore, read as 'may' and is only Directory. Reference in this connection was made to Sections 100 (2), (3), (4), (5), (6), (7), 204 (2), 207, 208, 209 of the Criminal Procedure Code and it was pointed out that in all of these sections the use of the word 'shall' does not make it mandatory and is only Directory and it has been held that the non- compliance of these provisions does not render the proceedings illegal. The argument in this regard is certainly very solid in substance and leads towards the inference that the use of this word 'shall' in the amended provision does not make it Mandatory.
(3.) THERE is, however, another angle from which the matter may be examined, leading to the same result and that is that the amendment is in a procedural law. Procedure as is well acknowledged is the hand- maid of justice and if the dictates of justice demand, the mandate may be bye-passed, because the desideratum is the delivery of justice. In the latest case on the subject by the Supreme Court in the case of Sheikh Salim Haji Abdul Khayumsab v. Kumar and Ors. , 2006 (1) JCLR 967 (SC) : (2006) 1 SCC page 46, it was observed as follows: "a procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrate the recipient of justice is not to be followed. . . . . . " This case was about a written statement not having been filed within the stipulated period of 90 days as prescribed in Order I, Rule-8 C. P. C. and the question was whether the Court had the authority to admit the written statement even after the expiry of 90 days period. Order VIII, Rule 1 as amended stood as follows: "1. Written Statement.-The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence; Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. " This is what the Supreme Court said: "order-8 Rule-1. after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the Court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in Order VIII, Rule-1 is procedural. It is not a part of the substantive law. Substituted Order VIII, Rule-1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the Court faced with the frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried".;