- (1.) PALOK Basu, J. A learned Single Judge doubting the correctness of the decision reported in 1986 AWC 51 : 1986 Criminal Law Journal 365, Shakuntla Devi v. State, has referred me following three questions for consideration by a larger bench. (1) Whether the word 'may' in Proviso (1) to Section 437, Cr. P. C. is directory or mandatory (2) Whether the word 'may' used in proviso (1) of Section 437, Cr. P. C. is to be read as 'shall' and '"must' (3) Whether the decision reported in 1986 Cr. L. J. page 365 - Shakuntala Devi v. Slate of U. P, lays down a correct proposition of law
(2.) ANOTHER learned Single Judge, being of the view that Shakuntala Devi's case (supra) requires reconsideration, has referred the matter to larger Bench. In the former case Pramod Kumar Manglik, the informant has prayed that Smt. Sadhna Rani's bail, granted by the Magistrate on the strength of Shakuntala 's case, be cancelled. In the later case, Smt. Chundrawati, an accused, seeks bail on the ground that the first proviso to Section 437, Cr. P. C. , 1973 is mandatory. Consequently, these two matters have come up before us for consi deration. We have heard Shri A. B. L. Gaur and Shri S. P. S. Raghav for the appli cant and the opposite party respectively in the first case, and Shri Keshav Sahai and Shri N. K. Sharma for the applicant in the second case. Shri T. N. Sinha, Addl. Government Advocate, Has been heard on behalf of State in both the cases. We also gave hearing to Shri J. S. Sengar, Advocate, on his request.
(3.) THE learned Counsel for the accused in both the cases have adopted the arguments noted in the case of Shakuntala Devi. THE main reasoning of the learned Single Judge noted in the said case is that the word 'may' used in the first proviso appearing immediately alter clauses (i) and (ii) of Section 437, Cr. P. C , should be read as 'must' and 'shall', since it contains a beneficial provision and as such, the said proviso has been held to be mandatory. Another argument advanced on behalf of the accused is that in all cases of non-bailable offences, Magistrates must grant bail since sub-section (1) of Section 437 does not confer any discretion upon him to refuse bail, and, the maximum that a Magistrate can do is to impose conditions mentioned in clauses (A), (B), (C) of sub-section (3) or Section 437, Cr. P. C. For this part of the argument, reliance has been placed on the following observations in paragraph lei of Gurcharan Singh's case, AIR 1978 SC page 179: ". . . . . In all other non-bailable cases judicial discretion will always be exercised in favour of granting bail subject to sub-section (3) of Sec tion 437, Cr. P. C. with regard to imposition of conditions if neces sary. . . . . . " In order to examine the reasonings of the learned single Judge as also to appreciate the arguments of the learned Counsel for the accused, a little talking about the legislative history behind the present shape of section 437, Cr. P. C. appears necessary. For our purposes Criminal Procedure Code, 1898 (for short, old Code) will be the starting point because the Codes prior to that have only archaic value.;