ARIMARDAN; UMESH CHANDRA; SATIRAM; DASHRATH MAURYA; AWSERI; DHARMENDRA; KAILASH NARAIN; PREM SUDHAR PATEL; GUDDOO ALIAS NITIN SINGH; SURAJ MAL Vs. STATE OF U P

JUDGEMENT

(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.

(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.