JUDGMENT Palok Basu, J.
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 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 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 Devi's 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 Rani's bail granted by the Magistrate on the strength of Shakuntala's 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 Section 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 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, Magistrate 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) of Section 437, Cr. P.C. For this part of the argument, reliance has been placed on the following observations in Paragraph 18 of Gurcharan Singh's case AIR 1978 SC page 179 : (1978 Cri LJ 129) (Para 18):
...In all other non-bailable cases judicial discretion will always be exercised in favour of granting bail subject to Sub-section (3) of Section 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 Section 437, Cr. P.C. appears necessary. For our purposes Criminal Procedure Code 1898 (for short, Old Code) will be the starling 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 Section 497 Old Code which, at the time of its birth, looked quite child-like as compared to the hefty body it grew into later. It read as under:
497. (1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of the offence of which he is accused.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed such offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) Any Court may, at any subsequent stage of any proceeding under this Code, cause any person who has been released under this Section to be arrested, and may commit him to custody.
9. In the Gazette of India September 9, 1922 we find that the Joint Committee's recommendations about amending Old Code are published. Sir Tej Bahadur Sapru was the Chairman of the said Committee. The said Committee formulated its opinion about the proposed changes as under:
It was pressed upon us that the provisions as to bail in non-bailable cases are much too stringent. One suggestion made to us was that in Section 497 we should delete all words after 'may be released on bail' in Sub-section (1) and the whole of Sub-section (2). The result would have been to give all Courts full discretion in the matter of allowing bail in non-bailable cases and we felt generally that this was going too far....
It appears that the proposed Bill was of the year 1917 and ultimately what was passed was the Criminal Law Amendment Act No. 18 of 1923. Needless to say, many changes were brought in Section 497 Old Code and a Proviso was added to Sub-section (1). After this amendment, the newly shaped Section 497, Old Code looked as under:
497. (1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of police station, or appears, or is brought before a Court, he may 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 transportation for life:
Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) An officer or a Court releasing any person on bail under Sub-section (1) or Sub-section (2) shall record in writing his or its reasons for so doing.
(4) If, at any time after the conclusion of the trial of a person accused of non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
(5) A High Court or Court of Session, and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody.
It may however be noted that all recommendations of the aforesaid Committee were not followed verbatim and the Legislature did make some changes in the actual Bill that became the amending Act as compared to the proposals of the Committee.
10. Then came the Cr. P.C. Amending Act No. 26 of 1955. Apart from many changes brought about here and there in the body of the then existing Cr. P.C., a new Sub-section (3A) was added in Section 497, Old Code. It ran as follows:
(3A). If, in 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.
We may mention that in the then existing Section 497, Cr. P.C., the only other change brought about by the said amending Act, was that in Sub-section (1) after the words 'accused of, the words 'or suspected of the commission of any' were added and in the last line of the said sub-section, the word 'transportation' was substituted by the word 'imprisonment'. Thus, no major change in any other subsection of Section 497, Old Code was brought in except (3A). Since then this Section remained unchanged so long as the Old Code survived.
11. Then ushered in the New Code (Act No. 2 of 1974). Its Section 437 corresponds to Section 497, Old Code. It may be useful to refer to the virgin Section 437 as it looked on 1st April, 1974, the day the New Code came into force:
437. (1) When any person accused of our suspected of the commission of any non-bailable offence is arrested or detained without warrant, by an officer in charge of a police station or appears or is brought before a Court, other than a High Court or a Court of Session, he may 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:
Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail:
Provided further that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such direction as may be given by the Court.
(2) If it appears to such Officer or Court at any stages of investigation, inquiry or trial, as the case may be, that there are not resonable grounds for believing that the accused has committed a non-bailable offence, but that there are guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abatement of, or conspiracy or attempt to commit, any such offence, is released on bail under Sub-section (1), the Court may impose any condition which the Court considers necessary -
(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
(b) in order to ensure that such person shall not commit an offence, similar to the offence of which he is accused of or the commission of which he is suspected, or
(c) otherwise in the interests of justice.
(4) An Officer or a Court releasing any person on bail under Sub-section (1) or Sub-section (2), shall record in writing his or its reasons for so doing.
(5) Any Court which has released a person on bail under Sub-section (1) or Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
(6) If, in 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 such period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable ground for believing that the accused is not guilty of such an offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
12. The Legislature however, thought of bringing in some amendments in the New Code within about seven years of its existence. It was found necessary to recast Sub-section (1) of Section 437 New Code so as to 'put some more restriction on the right of Magistrate to grant bail to accused prosecuted for non-bailable offence.' Corresponding changes were thus necessary in Sub-sections (2) and (4). We think that if we have a look at Section 5 of the Criminal Procedure Code Amendment Act, 1980, i.e. Act No. 63 of 1980, we will have the complete picture of Section 437 Cr. P.C. (New Code) which is up for consideration before us. It reads thus:
5. Amendment of Section 437. - In Section 437 of the principal Act, -
(a) for Sub-section (1), the following subsection shall be substituted, namely:
(1) When any person accused of, or suspected of, the commission of any non-bailable offence, is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, but -
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an effence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence:
Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in Clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that the accused may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court:
(b) in Sub-section (2), for the words "accused shall, pending such inquiry, be released on bail", the words, figures and letters "the accused shall, subject to the provisions of Section 446 - a and pending such inquiry, be released on bail" shall be substituted;
(c) in Sub-section (4), for the word "reasons", the words "reasons or special reasons" shall be substituted.
13. Having thus examined the historical background of Section 437 New Code, but before entering into the discusion relating to the arguments advanced, we may state here that in effect, only one controversy is up for consideration even though different questions have been framed by the learned single Judge. Can the Magistrate make use of his judicial discretion to grant or refuse bail to persons who are covered by Clause (i) or (ii) if such person happens to fall within the first proviso ?
14. We may state here that while according to the learned Counsel for the accused, Magistrate has no discretion to refuse bail to persons falling within Clauses (1) and (ii), much less regarding persons covered by the provisos. Magistrate shall have to grant bail when such person appears or is produced before him and applies for bail. On the contrary the learned Additional Government Advocate has argued that no discretion being left with Magistrate to grant bail to persons covered by the two clauses added to Sub-section (1) of Section 437, he cannot grant bail even to those persons who may be falling within the categories mentioned in the two provisos to the said two clauses.
15. Now we proceed to examine the rival contentions advanced by the learned Counsels. But we may mention here that Sub-section (3) of Section 437 New Code may be attracted in entirely different situations, wholly unconnected with Sub-section (1).
16. We have referred to the history of Section 437 Code for two specific purposes. Firstly, we have noticed that the first proviso was added as early as in the year 1923 and that the definition of bailable and non-bailable offences has remained unchanged. Secondly, the authorities and rulings which we will be noticing in the following paragraphs are relevant and applicable even today though some of them may be considering Section 497 Old Code.
17. It is noticeable that the provisions contained in Section 437 New Code are more or less the same as were contained in Section 497 Old Code. The only other fact worth repeating is that even while bringing in the amendments in Section 437 New Code the only objection was to place some further restrictions on the discretion of the Magistrates to grant bail.
18. We have seen above that the legislative Committee headed by Sir Tej Bahadur Sapru did not opt for denying judicial discretion to the Magistrate to reject bail in non-bailable offences. They also did not recommend any change in the definition of bailable and non-bailable offences though from the deliberations as above, it appears to have been strongly canvassed that the said distinction should cease. We also find that Neither any Law Reforms Committee nor even the Law Commission has ever made suggestions that the discretion to reject bail in a non-bailable offence-case should not remain with Magistrate. To us it appears more than justified that, on the facts and circumstances of different cases, just as it may be necessary in the interest of justice for some persons to get bail though involved in non-bailable cases it might be equally necessary to contain some of them in Jail. Therefore, the legislature, in its wisdom, has drawn and maintained the distinction of bailable and non-bailable offences and, therefore, it cannot be accepted that all persons accused of non-bailable offences should get bail.
19. A perusal of the judgment of the learned single Judge in Shakuntala's case (1986 Cri LJ 365) (All) indicates that the primary reason for which the first proviso to Section 437 New Code was held to be mandatory was that the said proviso was a beneficial provision. Reliance was placed by the learned Judge on Craise on Law Statutes 7th. Edition, at page 285, to the effect that 'Where a power is deposited with a public officer for the purposes of being used for the benefit of persons who are specifically pointed out and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the court will require it to be exercised...'. The learned Judge placed reliance on a paragraph in R.V. Bishop of Oxford, (1879) 4 QBD 245 to the effect that' so long as when a statute authorises the doing of the things for the sake of justice, for doing that thing the word 'may' means 'shall'. The learned Judge relied upon : (1) The Collector of Monghyr - "The question whether any requirement is directory or mandatory has to be decided not mainly on the basis of any specific provision which for instance, sets out the consequences of the omission to observe the requirement, but on the purpose for which the requirement has been enacted.... The employment of the auxilliary verb 'shall' is inconclusive and similarly the mere absence of the imperative is not conclusive either.". (2) State of U.P. v. Joginder Singh - "The Word 'may' is capable of meaning may or shall in the light of the context. Where discretion is conferred upon a public authority coupled with an obligation, the word 'may' which denoted discretion should be construed to mean command. Sometimes the legislature uses the word 'may' out of deference to the high status of the authority on whom, the power and the obligation are intended to be conferred or imposed."
20. We have absolutely no doubt that the aforesaid quotations are good law and have to be applied and followed where attracted. In the instant controversy, however, upon a close scrutiny of the provisions contained in the relevant Sections in the New Code and the decisions thereon, the quotations relied upon by the learned single Judge do not appear attracted and they have failed to persuade us to hold that the first proviso in Section 437 New Code is mandatory.
21. It is to be noted that the Legislature has used the word 'shall' in various provisions contained in Chapter XXXIII of the New Code which consists of "Provisions as in bail and bonds". Incidentally, Section 436 is the first section in the said Chapter, which provides that an accused in bailable offence case shall be released on bail. The Second Section is 437 in this chapter. As above, it has seven sub-sections It is remarkable that Section 437(1), which is the enacting section, itself uses the word 'may'. This is the provision which confers power on a Magistrate to exercise his discretion of granting bail, But, Sub-section (2), Sub-section (6) and Sub-section (7) use the word 'shall', thus carrying the legislative mandate that in cases covered by the said three sub-sections, the Magistrate shall grant bail (subject to the restrictions therein stated), Section 438 New Code provides directions in the nature of anticipatory Bail. A person apprehending his arrest may apply to the High Court or to the Court of Sessions for a direction of the nature of anticipatory bail. If such an order is made, the person SHALL be released on bail. Section 439 New Code inter-alia provides that a High Court or a Sessions Judge. MAY direct that any person accused of an offence and in custody be released on bail. (Emphasis by us).
22. In view of the intentional use of the word 'may' in Sub-section (1) of Section 437 New Code and of the word 'shall' in three of its sub-sections, then again using the word 'shall' in Section 436 and the word 'may' in Section 439, we cannot but hold that the legislature has consciously made a distinction in choosing the respective verbs in the various provisions. It has used the auxilliary verb 'shall' where it desired the provision to be mandatory and has used 'may' where it wanted the matter to be left to judicial discretion. It appears that perhaps the use of the two different verbs in various sub-sections of Section 437 and three other allied sections of Chapter XXXIII was not brought to the notice of the learned single Judge because we do not find any mention of it in Shakuntala's case 1986 Cri LJ 365 (All).
23. We have perused the objects and reasons for bringing about the Amending Act 63 of 1980 which states that in order to bring more checks on the discretion of 'the Magistrate to grant bail in certain types of accused, the second proviso was added. By the said proviso special reasons for the release on hail of those accused who are thereby covered, have to exist. It is of paramount importance to note that Sub-section (4) of Section 437 New Code requires that where any accused is being released on bail under Sub-section (1) or Sub-section (2), reasons or special reasons shall have to be recorded by the Magistrate if he uses his discretion to grant bail. Thus, while on the one hand we were asked to interpret Sub-section (1) as mandatory, on the other, nothing has been argued as to why the Legislature enacted Sub-section (4) providing that recording of reasons or special reasons was mandatory, if bail is granted by the Magistrate. We are consequently of the view that once the law requires recording of the reasons or the special reasons a must for granting bail by Magistrate, it goes without saying that he will have to justify his order by referring to the grounds for which he is finding justification for releasing an accused on bail, to whom he can normally not grant bail. If either Sub-section (1) itself or its first proviso were enacted to lay down mandatory release of accused on bail, there was absolutely no need to enact Sub-section (4).
24. In the book 'Criminal Procedure in British India', by Sir John Woodroffe, published by Thacker, Spink & Co. In the year 1926, the celebrated author while interpreting Section 496 Old Code and contrasting it with Section 497 Old Code, particularly taking note of the proviso (then only one), says:
25. This term (non-bailable-offence) does not mean that no bail can be taken. The term is mostly used to formally distinguish one of the two classes of cases, viz. 'bailable' offences in which bail may be claimed as a right in every case; whereas a non-bailable offence is one in which in certain contingencies bail will not be granted...:
'May and not shall' as in last section which, it has been said, provided for three possible cases...Now, while the Legislature has resisted the proposal to give all Courts full discretion in the matter of allowing bail in non-bailable cases, it allows a Court of police-officer to release on bail in a non-bailable case unless there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or transportation, and as safeguard against this it requires in Clause (3) that the officer or the Court should record his reasons for releasing a person, so that his or its action may be subject to control. Further, by the first proviso even the restriction as regards offences punishable by death or transportation does not apply in the case of the immature, women, or sick or infirm persons....
26-27. It has been observed by the famous jurist Mr. S. Rangandhaiyar, in his commentary on . Cr. P.C. 1898, (1934 edition):
In England bail in treason and felony is discretionary in the High Court or the Court having jurisdiction to try the offence; on the other hand bail in misdemeanour is to be of right at Common Law. This distinction is reflected in Section 496 and Section 497 which the at respectively of the grant of bail in cases which are described in the phraseology of the Indial Legislature as bailable and non-bailable offences...(on 496 Old Code) -The terms of this section are imperative and a Magistrate is bound to release on bail a person accused of a bailable offence.... There is no question of any discretion in granting bail, (on 497 Old Code) - This section as amended, first gave a discretion to the Court (particularly Magistrates) to order release on bail even in cases of non-bailable offences. This prima facie gives the Court power both to grant bail and to refuse bail. But such a wide discretion is to some extent controlled by the restrictions as noted in the sub-sections.
28. It is clear from the said two quotations that the learned authors treated the power under Sections 437 as discretionary and insisted upon the recording of the reasons in granting bail in spite of the proviso. We would now consider three decisions of the Supreme Court which have explained the scope of the two relevant sections/regarding power of granting bail.
29. In Talab Haji Hussain's case it has been observed (Para 3) : "There is no doubt that under Section 496 a person accused of a bailable offence is entitled to be released on bail pending his trial.... The position of persons accused of non-bailable offences is entirely different. Though the recent amendments in Section 497 have made definite improvement in favour of persons accused of non-bailable offences, it would nevertheless be correct to say that the grant of bail in such cases is generally a matter in the discretion of the authorities in question."
30. In Rati Lal Bhaji's case AIR 1967 SC 1639 : (1967 Cri LJ 1576) it has been observed (Para 4) : "In the matter of admission to bail, the Code of Criminal Procedure makes a distinction between bailable and non-Bailable offences. The grant of bail to a person accused of a non-bailable offence is discretionary under Section 497.... A person accused of a bailable offence....has a right to be released on bail."
31. In Gurcharan Singh's case (1978 Cri LJ 129) (SC) (Supra), apart from the passage cited on bahalf of the accused, the following observation in fact, lays down the legal position (Paras 20 and 22):
The principle underlying Section 437 is, therefore, towards granting of bail except in cases where there appear to be reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life and also when there are other valid reasons to justify the refusal of bail...It is also clear that when an accused is brought before the Court of Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option but to refuse bail subject however to the first proviso to Section 437(1) Cr. P.C.
(emphasis by us.) Incidentally we may mention here that in the I said case the Supreme Court has upheld the order of the High Court cancelling the bail granted by the Sessions Judge.
32. Therefore, in view of the aforesaid decisions of the Supreme Court it is obvious that the main power emanating from the enacting provision contained in Sub-section (1) of Section 437 New Code is only discretionary.
33. Thus while construing the 'proviso' to the aforesaid sub-section, we have to remember that it is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso. A proviso to a particular provision of a statute only embraces the field which is covered by the main provisions. It only carves out an exception to the main provision to which it has been enacted as a proviso and no other. We are fortified in our view by the decisions of the Supreme Court, in R.N. Sons v. A.C.S.T. and Abdul Jabbar v. State of J.K. and . We are, therefore, unable to hold that proviso (first) to Sub-section (1) to Section 437 New Code confers more power upon the Magistrates than the sub-section itself.
34. In view of the aforesaid discussion, we regret that we are unable to agree with the view of the learned single Judge in Shakuntala's case (1986 Cri LJ 365) (All.) that the first proviso to Sub-section (1) is mandatory. We accordingly overrule the view that all women, children, up to sixteen, ,sick or infirm who appear or are brought before a Magistrate on being arrested concerning cases covered by Clauses (i) and (ii) of Sub-section (1) of Section 437 New Code must have to be released on bail by the Magistrate, But, according to us, the judicial discretion of Magistrates conferred by the said sub-section which stands excluded regarding persons falling within its Clauses (1) and (2) has been restored concerning only the said four categories of persons covered by the first proviso.
35. Our answer to question No. 1 above is that the word 'may' in the proviso (first) to Sub-section (1) of Section 437 Cr. P.C. 1973 has not to be read as mandatory. In view of the said answer to question No. 1, our answers to question Nos. 2 and 3 are in the negative.
36. We may mention that Shri T. N. Sinha wanted to raise a question about the period for which an order of bail by a Magistrate can be operative in view of the provisions contained in Section 209(b) New Code. That point being not in issue in the reference, we need not go into it.
37. Having thus decided the legal question which fully answers the two references, we now go to the facts of each case.
38. In Crl. Misc. Case No. 11974/1986, Smt. Sadhna Rani's release on bail by Magistrate relying on Shakuntala's case (1986 Cri LJ 365) (All.) is under challenge. It has been brought to our notice that co-accused Jitendra and Rakesh have been granted bail by the High Court and all other accused are on bail and that the trial is already proceeding. We do not think that interest of justice will be served if the Magistrate's order is set aside, because in all likelihood she would again be bailed out on merits. Consequently, the order of the Magistrate dated 28-7-1986 is not disturbed on facts. This application is dismissed.
39. In Crl. Misc. No. 8412/1988, Smt. Chandrawati has applied for bail in a case under Sections 304/499A/302 I.P.C. concerning the murder of Smt. Nagina, her daughter-in-law. In the Dying Declaration of the deceased Smt. Nagina, recorded by Additional City Magistrate, Aligarh, the applicant is alleged to have sprinkled, kerosene oil and set fire even though Jwala Prasad, husband of Nagina, tried to save her. Through the supplementary affidavit probabilities were argued and parity with Jwala Prasad's case was sought because he had been in the mean time granted bail by the Sessions Judge. On the facts, Jwala Prasad's case stands entirely on a different footing. Apparently, the applicant is the only accused who is attributed the main role in bringing end to the life of the young daughter-in-law in a most heartless and brutal manner. Prima facie we do not find any reason to disbelieve the dying declaration. This application is accordingly dismissed.