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IN THE HIGH COURT OF ALLAHABAD
B. L. YADAV
SHAKUNTALA DEVI - Appellant
Versus
STATE OF U.P - Respondents
CRI. M. B. A. 14099 Of 1985
Decided On : 10/14/1985
BAIL - S. 437(1) & PROVISO 1, CR. P. C. - INTERPRETATION - WORD "MAY" USED IN PROVISO 1 - HELD TO BE MANDATORY AND NOT DIRECTORY - WOMAN ACCUSED AGED 72 YEARS - BAIL GRANTED ON COMPASSIONATE GROUNDS.
Fact of the Case:
The applicant, a 72-year-old woman, was arrested and charged with murder and dowry harassment. The prosecution alleged that the applicant, along with her son-in-law and father-in-law, murdered her daughter due to dissatisfaction with the dowry received.
Finding of the Court:
The court held that the word "may" used in the first proviso to Section 437(1) of the Code of Criminal Procedure, 1973, which allows for the release of women, sick, or infirm persons on bail, should be interpreted as mandatory and not directory. The court reasoned that the proviso creates an exception to the general rule that persons accused of offenses punishable with death or life imprisonment should not be released on bail.
Issues: 1. Whether the word "may" in the first proviso to Section 437(1) of the Code of Criminal Procedure, 1973, is mandatory or directory. 2. Whether the applicant, being a woman aged 72 years, is entitled to bail on compassionate grounds.
Ratio Decidendi: 1. The court relied on various legal principles and case laws to support its interpretation of the word "may" in the first proviso to Section 437(1) of the Code of Criminal Procedure, 1973, as mandatory. The court held that when a statute uses the word "may" in connection with a power or duty conferred on a public authority, it should be construed as mandatory if the purpose of the power or duty is to effectuate a legal right or protect a fundamental right. 2. The court also considered the applicant's age and the fact that she had been in jail since her arrest. The court held that these factors, coupled with the fact that the trial was still pending and evidence was yet to be collected, warranted the grant of bail on compassionate grounds.
Final Decision: The court allowed the applicant's bail application and directed her release on bail on the condition that she furnish a personal bond and two sureties to the satisfaction of the Chief Judicial Magistrate, Moradabad.
( 1 ) THIS is an application under S. 439, Cr. P. C. on behalf of the applicant Smt. Shakuntala Devi involved in Crime No. 280 of 1985 under S. 302/498-A, I. P. C. , P. S. Galshaheed, District Moradabad.
( 2 ) THE applicant is aged about 72 years as is clear from the report of the Sub-Inspector of Police (Annexure-2 to the affidavit), who has conducted the search. The prosecution story is given in Annexure-2 to the affidavit in which it was alleged by Sukhdayal that he was informed by the police constable that a murder has been committed by the applicant and Haraj Raj Katiyal and one Pramod Raj Katiyal by burning her daughter. It appears that the daughter of the informant Sukhdayal was married with Pramod Raj Katiyal. But the in-laws and the husband of the daughter were feeling aggrieved as they did not receive the satisfactory dowry. Hence it appears that the father-in-law, mother-in-law and the husband of the daughter have murdered her. The informant prayed that the matter may be investigated and justice be done.
( 3 ) I have heard Sri G. S. Chaturvedi for the applicant, Sri Keshav Sahai for the complainant and Sri Jagdish Tiwari for the State of U. P.
( 4 ) IT was urged by the learned counsel for the applicant that S. 437 (1) of the Cr. P. C. , 1973 (for short the Code), enacts that any person if brought before Court other than the High Court and Court of Session, can be released on bail but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.
( 5 ) BUT the first Proviso to S. 437 of the Code enacts that the Court may direct any person under sixteen years of age, woman sick or infirm to be released on bail. The word "may" used in the proviso means "shall" and it is mandatory and not directory. Whenever the word "may" is used in any statute in connection with court or Authority to grant some relief, it is a respectful expression that word "may" is used, but it really means "shall". It was accordingly urged that it was obligatory to grant bail in case the applicant was woman.
( 6 ) SRI Keshav Sahai and Sri Jagdish Tewari for the complainant and the State respectively on the other hand urged very effectively that the word "may" in the first Proviso to S. 437 of the Code is directory and not mandatory.
( 7 ) HAVING heard the learned counsel for the parties I am of the view that the application deserves to be allowed. I am of the opinion that when after any provision of a section a proviso has been added, it simply means that the legislature wanted to create an exception in the form of Proviso to what was enacted in the general provisions of the Section.
( 8 ) CRAIES on Statute Law (Seventh Edition) at page 218 states as follows : "the effect of an excepting or qualifying Proviso according to the ordinary rules of construction is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it, and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect.
( 9 ) IN Mullins v. Treasurer of Surrey, (1880) 5 QBD 170, it has been held as follows : "the natural presumption is that, but for the proviso, the enacting part of the Section would have included the subject matter of the proviso. "
( 10 ) SO far as the controversy as to whether the word may used in First Proviso to S. 437 of the Code is permissive or enabling expression or whether it was mandatory, in this connection I would again like to refer to Craies on Statutes (Seventh Edition) at page 285, which is as follows : -"it is, however, a well recognised canon of construction, as Lord Cairns said in Julius v. Bishop of Oxford, that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with re
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