THE WORD "MAY" IN THE FIRST PROVISO TO SUB-SECTION (1) OF SECTION 437, CR. P. C. IS NOT MANDATORY AND THE MAGISTRATE HAS THE DISCRETION TO REFUSE BAIL TO PERSONS COVERED BY CLAUSES (I) AND (II) OF THE SAID SUB-SECTION, EVEN IF THEY FALL WITHIN THE CATEGORIES MENTIONED IN THE TWO PROVISOS.

( 1 ) A learned single Judge, doubting the correctness of the decision reported in 1986 All WC 51 : 1986 Cri LJ 365, Shakuntala Devi v. State, has referred the following three questions for consideration by a larger bench : 1. Whether the word may in Proviso (1) of S. 437, Cr. P. C. is directory or mandatory ?

( 2 ) WHETHER the word may used in Proviso (1) of S. 437, Cr. P. C. is to be read as shall and must ?

( 3 ) WHETHER the decision reported in 1983 Cri LJ page 365, Shakuntala Devi v. State of U. P. lays down a correct proposition of law ? 2. Another learned single Judge, being of the view that Shakuntala Devis case (supra) requires reconsideration, has referred the matter to larger Bench. 3. In the former case Pramod Kumar Manglik, the informant has prayed that Smt. Sadhna Ranis bail granted by the Magistrate on the strength of Shakuntalas case, be cancelled. In the later case, Smt. Chandrawati, an accused, seeks bail on the ground that the

( 4 ) WE have heard Shri A. B. L. Gaur and Shri S. P. S. Raghav for the applicant and the first proviso to S. 437, Cr. P. C. 1973 is mandatory. Consequently, these two matters have come up before us for consideration 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.

( 5 ) THE learned counsel for the accused in both the cases have adopted the arguments noted in the case of Shakuntala Devi, (1986 Cri LJ 365) (All ). 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 after Cls. (i) and (ii) of S. 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, Magistrate must grant bail since Sub-Sec. (1) of S. 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 Cls. (A), (B), (C) of Sub-Sec. (3) of S. 437, Cr. P. C. For this part of the argument, reliance has been placed on the following observations in Paragraph 18 of Gurcharan Singhs case. AIR 1978 SC page 179 (Para 18) :". . . . . IN all other non-bailable cases judicial discretion will always be exercised in favour of granting bail subject to Sub-Sec. (3) of S. 437, Cr. P. C. with regard to imposition of conditions if necessary. . . . . "

( 6 ) 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 S. 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.

( 7 ) IN the Old Code, for the first time elaborate provisions were made for investigation and trial etc of various offences. For the purposes of bail, all offences were classified into two categories - bailable and non-bailable It was defined that bailable offence is an offence which was described as bailable in one of the Schedules of the Old Code or which was bailable by any other law. Non-bailable offence was defined as any other offence. Then, our Parliament felt the need to pass an act to consolidate and amend the law relating to Criminal Procedure and, consequently passed Act No. 2 of 1974 which is known as The Criminal Procedure Code, 1973 (for short, New Code ). In the New Code too, the definitions of bailable and non-bailable offences remain the same as in the Old Code.

( 8 ) THE relevant provisions concerning bail in non-bailable offences was to be found in S. 497 Old Code which, a