The word "may" in the proviso to sub-section (1) of Section 437 of the CrPC is not mandatory.

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 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 Shakuntala s case, be cancelled. In the later case, Smt. Chundrawati, an accused, seeks bail on the ground that the first proviso to Section 437, Cr. P. C. , 1973 is mandatory. Consequently, these two matters have come up before us for consi deration.

4. We have heard Shri A. B. L. Gaur and Shri S. P. S. Raghav for the appli cant and the 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. 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 Singhs 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. . . . . . "

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 section 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 me 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 Crim inal 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 Sec