PRAMOD KUMAR MANGLIK Vs. CHANDRAWATI DEVI

JUDGEMENT

(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.

(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. . . . . . "