A.L.DAVE, J. - Incarceration of an accused before trial or conviction is a most criticized shortcoming of the judicial system. The legislature also expects the under-trial imprisonment period to be minimum. With that view in mind, certain provisions have been incorporated in the Code of Criminal Procedure. One such provision is contained in Section 437 (6) of the Code of Criminal Procedure (for short 'Code'), which runs as under:

“437 (6) If, any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.”

2. The language of the Section selected by the legislature makes it possible to have different interpretations and as a corollary, different Courts have taken different views. As a consequence, following questions have been referred to this Bench:

[i] Whether in a case triable by the learned Magistrate particularly of a person accused of any non-bailable offence not concluded within a period of 60 days from the first date fixed for taking evidence in the case and such person is in custody during the whole of the said period, such person gets an absolute indefeasible right to be released on bail to the satisfaction of the learned Magistrate unless for the reasons to be recorded in writing by the learned Magistrate to direct otherwise ?

[ii] Whether the provisions of Section 437 (6) of the Code is mandatory or not ?

[iii]Whether the learned Magistrate has an option to refuse bail upon his satisfaction by recording reasons in writing and, in such an eventuality, what could be the parameters, factors, grounds and circumstances to be considered by the learned Magistrate viz-a-vis the application preferred by the accused claiming absolute right in such circumstances as mentioned in sub-section (6) of Section 437 of the Code ?

[iv] Whether the above factors, parameters, circumstances and grounds for seeking bail by the accused as well as the ground to be considered by the learned Magistrate for his satisfaction are to be similar to that of sub-section (1), (2) of Section 437 of the Code or other than that or no straight jacket formula can be laid ?

(v) Whether the parameters contained in Section 167 (2) (a) (I) (ii) of the Code [default bail] found in Chapter XII pertaining to 'information to the police and their powers to investigate' can be imported for exercising powers for seeking bail under Section 437 (6) found in Chapter XXXIII pertaining to the provisions as to 'bail and bonds' ?

(vi) Whether a decision in principle on which it is decided is binding to the co-ordinate bench of equal strength when such decision of the earlier bench is a principle of law laid down and / or a 'statement of law' in the context of the subject matter ?

(vii) When the accused has a fundamental right under Article 21 of the Constitution of India for a speedy trial, can it be pressed into service vis-a-vis right of the accused accruing under Section 437 (6) of the Code.”

3. We have heard learned Senior Advocate Mr.N D Nanavati appearing with Mr.Niraj Buch for applicants No.1 and 2, learned Senior Advocate Mr.P M Thakkar appearing with Mr.Tirmizi for applicant No.3 and learned Advocate General Mr.Kamal Trivedi appearing with learned Additional Public Prosecutor, Mr.A J Desai, as he then was, for respondent-State.

4. The normal principle of interpretation is that where a legislature uses 'shall', it has to be read as a mandate. Whereas, if it is discretion, decided to be given by the legislature to the Court, the word normally used in such situation is 'may'.

4.1 Now, if sub-section (6) of Section 437 of the Code is read with the above settled principles of interpretation of statutes in mind, the first part of s