B.L. Yadav, J.This is an application u/s 439, Cr. P.C, on behalf of the applicant Smt. Shakuntala Devi involved in Crime No. 280 of 1985 u/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 Section 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 Section 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 Section 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. (See also Duncan v. Dixon (1890) 44 Ch D. 211, Toronto Corporation v. Attorney General of Canada 1946 AC 32.

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 Section 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 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. And Lord Blackburn said: The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right.

In R. v. Bishop of Oxford (1879) 4 QBD 245, it was held as follows:

So long ago as the year 1693, it was decided in the case of R. v. Barlow (1693) 2 Salk 609 that when a statute authorises the doing a thing for the sake of justice or the public good, the word may means shall, and that rule has been acted upon to the present time...and of course the same rule will apply to the words it shall be lawful.

11. In Re Neath and Brecon Ry. (1874) 9 Ch. App 263, it has been held as follows:

It is the usual courtesy of the legislature in dealing with the judicature to use word may but it really means shall.

12. In State of Uttar Pradesh Vs. Jogendra Singh, the controversy about the construction of Rule 4(2) of the U.P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 was involved. Under Rule 4(2) of the Rules it was provided that the Government "may" direct the disciplinary proceedings against an officer specified under Rule 4 of the Rules to be tried before an Administrative Officer. The controversy arose as to whether the word may used for the Governor means shall or only it means may. In other words, whether the word may has been used in a mandatory sense or in a directory sense. It was held by the Supreme Court in para 8 as follows:

The word may generally does not mean must or shall. But it is well settled that the word may is capable of meaning must or shall in the light of the context. Where a discretion is conferred upon a public authority coupled with an obligation, the word may which denotes discretion should be construed to mean a 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.

13. In The Collector of Monghyr and Others Vs. Keshav Prasad Goenka and Others, thereof it has been held as follows:

The question whether any requirement is mandatory or directory has to he decided not merely on the basis of any specific provision which for instance, sets out the consequences of the omission to observe the requirements, but on the purpose for which the requirement has been enacted, particularly in the context of the other provisions of the Act and the general scheme thereof. It would, inter alia, depend on whether the requirement is insisted on as a protection for the safeguarding of the right of liberty of person or of property which the action might involve. The employment of the auxiliary verb shall is inconclusive and similarly the mere absence of the imperative is not conclusive either.

14. I am accordingly of the view that the word may has been used in the first proviso to Section 437 of the Code to mean shall and must. The expression has been used as mandatory and not as directory. However, as the word may has been used in connection with the right of liberty of the citizen which has been guaranteed as a fundamental right in view of Article 21 of the Constitution. (sic) Hence it has assumed more dimension and cannot be taken lightly.

15. It is more important to mention here that even the informant has not seen the occurrence rather a police constable has informed him that his daughter has been murdered. Thereafter he reached the place of occurrence and thereafter lodged the first information report. The applicant having been lodged in the jail and the matter is still to be tried and evidence to be collected and further as the applicant is a woman aged about 72 years, as is clear from the report of the police officer (Annexure 3), I am of the opinion that just on compassionate grounds, without going into the merits of the case the applicant is entitled to be released on bail. It is, however, made clear that the observations made above shall not affect the merits of the trial in any manner.

16. Let the applicant Smt. Shakuntala Devi be released on bail in Crime No. 280 of 1985 under Sections 302/498-A, I.P.C., P.S. Galshaheed, District Moradabad, on her executing a personal bond and furnishing two sureties to the satisfaction of the Chief Judicial Magistrate, Moradabad.