B. L. YADAV, J. The present application under Section 439 of the Code of Criminal Procedure, 1973 (for short the Code) has been filed by the appli cant, who is a minor (aged less than 16 years), and incarcerated in jail for an offence under Section 307/326, I. P. C. , P. S. Baraia, District Ballia. 2. The factual matrix of the prosecution case is that on 28th February, 1989, at about 6 p. m. one Shyam Nath Chowdhry was sitting at the house of Goverdhan Misra in village Jageva, when Jawahar Lal and Hare Ram Chow dhry (the present applicant) arrived there, the former is alleged to have caught hold of Shyam Nath Chowdhry, while latter (the applicant) is alleged to have caused injury to Shyam Nath with a DAB. The true copies of F. I. R. and injury report are Annexure-A and Annexure-B respectively to the affidavit accompanying the application with the prayer for bail. 3. Sri G. P. Dixit, learned counsel for the applicant urged that the applicant was born on 16-7-73 and the entries in the High School Certificate and Scholars Register indicate that he was less than sixteen years of age. The occurrence took place on 28-2-89, to be exact, his age on the date of occurrence was 15 years 7 months 15 days. He was entitled to the benefit of Section 2 (4) read with Section 29 of U. P. Children Act, 1951, (for short the Act ). Apart from that what is more important is that the children less than 16 years of age, women, infirm or sick are entitled to social justice as one of the ideals and aspirations promised under the Preamble of the Constitution. He was also entitled to the fundamental rights enshrined under Articles 21 and 15 (3) and the concept and benefits of Welfare State provided under Article 38, and bene fits of Article 39 (e) and (f) as substituted by the Constitution (Forty-Second Ameadment) Act, 1976, and the public policy. In para materia to First Proviso to Section 437 of the Code, there was added a Proviso to Section 497 of the Criminal Procedure Code, 1898, (for short the old Code) by the Criminal Law Amendment Act No. 18 of 1923 under the public policy of the then Govern ment. In para materia to First Proviso to Section 437 of the Code, there was added a Proviso to Section 497 of the Criminal Procedure Code, 1898, (for short the old Code) by the Criminal Law Amendment Act No. 18 of 1923 under the public policy of the then Govern ment. This Proviso was retained in the present Code as First Proviso which may be interpreted in view of the settled principles of interpretation. As the Constitution is the fundamental law of the country. First Proviso to Section 437 of the Code may be interpreted keeping in view these Constitutional man dates as the same was not interpreted with these considerations, the Division Bench decision of this Court in Pramod Kumar Manglik v. Smt. Sadhna Rani, 1989 Alld Weekly Cases 403, requires reconsideration by a larger bench. The applicant deserves to be enlarged on bail. 4. Sri S. K. Mishra, learned counsel for the complainant and the learned Additional Public Prosecutor for tbe State, refuted the arguments for the applicant. A counter-affidavit annexing therewith an extract of kutumb register prepared under Rule 2 of U. P. Panchayat Raj Rules, indicating that the appli cant was more than 16 years of age, has been filed. It was urged that the applicant was not entitled to benefit ol Sections 2 (4) read with Section 29 of the Act, and was neither entitled to the principles of bocial justice, or the Welfare State, nor to the benefits of fundamental rights under Article 21 or to the benefits of Article 38, 39 (e) and (f ). The Division Bench case ol Pramod Kumar Mangalik v. Smt. Sadliana Rani (supra), was correctly decided. The applicant was not entitled to bail. 5. The Division Bench case ol Pramod Kumar Mangalik v. Smt. Sadliana Rani (supra), was correctly decided. The applicant was not entitled to bail. 5. Having heard the learned counsel for the parties, the bhort points fall for consideration are whether the Division Bench case of Pramod Kumar Mangalik v. Smt. Sadhana Rani, (supra), waii correctly decided keeping in view the Constitutional aspirations and goal of social justice as promised in the Preamble of the Constitution and the fundamental rights under Article 21 read with Article 15 (3) of the Constitution and the principles of Welfare State and the benefits under Article 39 (e) and (i) of the Constitution ; whether he was entitled to benefit of Sections 2 (4) and 29 of the Act, and whether the true copies of extracts of certificates Bled by the applicant can be relied upon or they can be disbelieved as the complainant has filed the extract of kutumb register which indicates a different date of birth. 6. Before adverting to the other points, the Preamble of our Constitu tion and the concept of social justice may be noticed along with Article 21 read with Articles 15 (3) and 38 and 39 (e) and (f ). The relevant part of the Pream ble of our Constitution is set out below : "we THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRA TIC REPUBLIC and to secure to all its citizens, JUSTICE, social, economic and political. " 7. It is better to state few words about significance of the Preamble. 8. In His Holiness Keshavananda Bharii Sripadagalvaru and others v. State of Kerala and another, AIR 1973 SC 1461 , it was held that the Preamble of our Constitution epitomises in a few and well-defined words the key to the understanding of our Constitution. 9. In Constituent Assembly Debates, Volume 10, page 417, it was stated as follows : "so far as the Preamble is concerned, though in ordinary statutes we do not attach any importance to the Preamble, but all importance has to be attached to the Preamble in a Constitution statute. " 10. In American Jurisprudence, 2nd Vol. 9. In Constituent Assembly Debates, Volume 10, page 417, it was stated as follows : "so far as the Preamble is concerned, though in ordinary statutes we do not attach any importance to the Preamble, but all importance has to be attached to the Preamble in a Constitution statute. " 10. In American Jurisprudence, 2nd Vol. 16, page 189 there is follow ing statement : "while statement of principles contained in the Declaration of Inde pendence do not have the force of organic law, and therefore, can not be made the basis of judicial decisions as to the rights and duties, yet it has been said that it is always safe to read the letter of the Constitution in the spirit of the declaration of Indepen dence, and the Courts sometime refer to the declaration in deter mining constitutional questions. " 11. I am of the considered opinion that Preamble to our Constitution contains philosophy of the Constitution. It is key to the interpretation oi various provisions of the Constitution. It embodies in a solemn form all the great ideals and aspirations for which the country has struggled during the British Regime. If I may adopt the words of Pt. Jawahar Lal Nehru, the first Prime Minister of our country, while moving the resolution for acceptance of the objectives, "it seeks very feebly to tell the world of what we have thought or dreamt for so long, and what we now hope to achieve in near future. 12. The object of the Constitution is to secure to all its citizens, justice-social, economic and political. In the instant case, we are concerned with social justice. In common parlance, "justice" means a process ef thwarting or reme dying that which would arouse the sense of injustice. This is a negative approach for realization of justice. The experience of the sense of injustice itself leads to social transformation as it encourages man to join with one another in perceiving danger and in resisting it. 13. Justice occupies a supreme place in every system of law. Whenever there is deviation from the concept of justice in its true sense, there is likeli hood of chaos. It is better to have definition of the expression justice. PLito in his REPUBLIC BOOK, IV, defines justice "as a kind of natural harmony and healthy habit of mind". 13. Justice occupies a supreme place in every system of law. Whenever there is deviation from the concept of justice in its true sense, there is likeli hood of chaos. It is better to have definition of the expression justice. PLito in his REPUBLIC BOOK, IV, defines justice "as a kind of natural harmony and healthy habit of mind". According to Institute of justenion, "justice is the constant and perpetual will to give every man his due. " Dante in the De Monarchia, defines justice as "a certain straightness or rule rejecting the oblique on either side. " 14. In International Encyclopaedia of the Social Science, (Vol. 8 page 247), it has been stated that "justice is more than a static equilibrium or a quality of the human will, it is an active process or agenda or enterprise. The meaning of the term comes alive whenever one confronts injustice and does justice. " 15. In A Theory of Justice, by Rawls, there is statment that "the primary subject of justice is the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the divisions of advantage from social co-operation. " Major institutions define mens rights, duties and influence their life prospects, what they can expect to be and how well they can hope to do. 16. A. M. Honore in hh"soclal Justice in Essays in Legal Philosophy" pages 62-63, has stated that social justice consists in two propositions. First is that all men have a claim to an equal share in all those things or advantages which are generally desired and are in fact, conducive to their wsll-being, including life, health, food, shelter, clothing and opportunities for acquiring knowledge and skill. The second is that there are a limited number of princi ples of discriminations. In other words, claim of men to an equal share in all advantages can fairly be modified, restricted or limited in the case of choice of the citizen or his conduct". 17. Aristotles "concept of Distributive Justice" corresponds to our sense of social justice. The basic principle he enunciates is that it is fair to reward others according to their merits and deserts. 17. Aristotles "concept of Distributive Justice" corresponds to our sense of social justice. The basic principle he enunciates is that it is fair to reward others according to their merits and deserts. To put it differently, I am of the view that social justice consist in the claim of all minor children, women, dis abled, sick, infirm and other men to all advantage which are desirable and con ducive to human well being, human perfection and human happiness. 18. Equality of opportunity is inherent in the concept of social justice. In the case of children, women, disabled or infirm (as contem plated by 1st Proviso to Section 437 of the Code) unless they are given sufficient opportunity to prepare themselves for better life so as to attain human perfection or human happiness by preventing them from being incarcerated in jail and unless a different approach, rather than a dry, technical and status quoist is made, the broader goal and objective in the Preamble of the Constitution, read with Articles 39 (e) and (f) and Article 21 of the Constitution would become illusory and renuered nugatory. The Preamble of the Constitution has to be read along with Article 21, Article 15 (3) and Articles 38, 39 (e) and (f ). 19. The matter can be viewed from another angle. Ours is a Welfare State. Under Part IV, the Directive Principles of State Policy provide that the State shall strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social justice (sic) in which justice social, economic and political shall form (sic) all the institutions of the national life. The State should assume responsibility for the general well being of all of its members. 20. The concept of "welfare State" was first born in our great nation atleast about ten thousand years B. C. In our country emphasis was on indivi dual welfare and also welfare of the State and people. The State should assume responsibility for the general well being of all of its members. 20. The concept of "welfare State" was first born in our great nation atleast about ten thousand years B. C. In our country emphasis was on indivi dual welfare and also welfare of the State and people. It was the duty of the citizens to study Vedas and thereafter the Religion, which was a comprehensive branch of learning, all pervading knowledge including politics, philosophy human science, and also law, so that he might attain individual welfare (Hindi ward) and also public welfare (3?33u Ht^mer ffto ^5mt) The following shtokas in Sanskrit may be noticed : (ARTHATAH PURUSHAN1h SHREYASARTH DHARMAM JIGYASA : GYATA CHANRITISHTHAM DHARMIKAH PRASHASYATAMO BHAVTl LORE PRETYAWA) : (YATO ABHUDAYA NIH SHREYASIDDMIDHAH SADHARMAH) In other words, this public welfare and eventually salvation were derived from Dhanna. But it may be kept in mind that tho welfare of public welfare (?fter ^?ati ) was different from pleasurable things. These induces men to different kind of activities amongst the two he who takes up the good attain welfare but he who selects the pleasurable misses it, i. e. (ANYACHCHHEYOYONYATEDUTAIVA PREYAH, TE UBHE NANAR-THEY PURUSHAM SINITH : TAYOH SHREYA ADADAANSYEMA-DHUBHAVATI HIYATE ATHADIYA UPREMO VRINITE) 21. The concept of welfare of the State or the people was the philosophy and the reality of working, thinking and idealism or our Rishis and Maharshis. This was taught to the would be king so that he might make it reality. From our country this concept of maximum good of maximum people or welfare of the State was taken to or borrowed by the western countries. Few Sanskrit shlokas depicting idea of "welfare State" at welfare of people may be set out : (SARVE BHAVANTU SUKHINAH SARVE SANTU NIRAMAYAH SARVE BHADRANI PASHYANTU MA KASHCHID DUKH BHAGHAVET) i. e. entire humanity must live in comforts and in best health, everybody must attain welfare and not to live in miseries and sorrows. 22. In Arthshastra by Kautilya it has been stated that a King should feel pleasure in welfare of people, etc. (hindi words) To the same effect are the statements in Vishnu-Dharmashashtra : (hindi words) Bhagwan Ram said that even if he has to leave an abandon the dearest things in life, i. e. love, sympathy kindness, friendship or even his dearest wife Sita, he would not worry, but would do public wefare. (hindi words) To the same effect are the statements in Vishnu-Dharmashashtra : (hindi words) Bhagwan Ram said that even if he has to leave an abandon the dearest things in life, i. e. love, sympathy kindness, friendship or even his dearest wife Sita, he would not worry, but would do public wefare. Sfeanr (hindi words) 23. It would not be inapt to refer to the sources from which the modern idea of Welfare State was derived. The ideas of fraternity, liberty and equality were derived for French Revolution. The idea of the greatest happiness of the greatest number was derived from the utilatarian philosophy and theory of Bentham. As a matter of fact, the Welfare State should be based on the well-being of the whole society including those enjoying a good life, style and children, women, infirm and sick. 24. Father of the Nation, Mahatma Gandhi, used to say and propogate that Swarajya shall have no meaning unless it was directed to improve the lot of women, children and Daridra Narain (most poor people ). The scope of social justice and social welfare is unlimited. They extend to social and economic circumstances including conditions of abuse and exploitation, welfare of a child, women, infirm and disabled. The provision for the service to individual and handicapped including persons below sixteen years of age, women, sick and infirm, is with a view to provide social justice against exploi tation, poverty and against moral and material abandonment, so that basic human rights and constitutional mandates are made meaningful. 25. I am, accordingly, of the view that as the social justice and Welfare State are the avowed object, purpose and social and political aspirations of our sovereign Socialist Secular Democratic Republic, the Courts has to interpret the provisions of Statute, particularly First Proviso to Section 437 of the Code, with reference to a person below sixteen years of age, women, sick and infirm, so that these objects and goals might be achieved. The provisions of Article 15 (3) of the Constitution make it manifest, that the special provisions can be made in favour of women and children keeping in view their social conditions, with a view to extend social justice to them. 26. Article 39 (f) was substituted by the Constitution Amendment (42nd Act, 1976 ). The provisions of Article 15 (3) of the Constitution make it manifest, that the special provisions can be made in favour of women and children keeping in view their social conditions, with a view to extend social justice to them. 26. Article 39 (f) was substituted by the Constitution Amendment (42nd Act, 1976 ). The said clause (f) of Article 39 reads as under : " (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. " Clause (e) of Article 39 of the Constitution is set out below : - "that the health and strength of workers, men and women and the tender age of children are not abused and that citizens are not forced by economic necessity to enter a vocation uusuited to their ago or strength. " 27. These constitutional mandates including social justice, Welfare State and human rights indicate that the State should take special care to provide opportunities and facilities to children, women, infirm and sick to develop their personalities in a healthy manner with dignity so that their childhood, youth and womenhood are protected against exploitation and against moral and material abandonment and rigorous of jail life. A child is a national asset, it is well-said by Wordsworth, an eminent English poet, that "child is father of man" One day children would become the future respectable citizens of this great nation and would shoulder heavy responsibilities in all walks of life. They can attain any heights in society, politics or other national services. If a child of the tender age, i. e. below 16 years of age, a women, sick or infirm is detained in jail, his or her chances for developing the personality would be marred and are bound to be exposed to moral degradation, The conditions of jail, less said the better, from all points of view, at least to a child below 16 years of age, a woman or infirm, are not conducive. Incarceration would have injurious and shall have baneful effect on them. Incarceration would have injurious and shall have baneful effect on them. It goes without saying that the different priniciples contained in the Directive Principles of State Policy are k y to the interpretation of fundamental rights, particulary Article 21 of the Constitution, where speedy, fair, just and reasonable trial can be read as being implici in it. See Sheela Berse & another v. Union of India & others, AIR 1986 SC 1773 . 28. In the present case, we are concerned as to whether the First Proviso to Section 437 is mandatory or directory. In other words, whether it is impe rative for the Magistrate concerned to grant bail to a person below 16 years of age, a women infirm or sick, the moment he or she is brought before him. It is sucu as to whether he or she as to be incarcerated in jail during the trial or has to be enlarged on bail, whereas it has been a settled principle of law for the governance of the whole of the country several thousand years B. C. that even if an aged person or a boy below 16 years of age, a woman or person suffering from disease are convicted for an offence, in that event they would be awarded half of the normal punishment which is awarded to other persons (other than the category mentioned ). In that connection it is better to make a reference to the following Shloka in Mitakshara and Yagya Valkay : (hindi words) (Mit. on Yaj III, 203 p. 248) 29. In Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 , at p. 811 Art. 39 came up for consideration and it was observed that basic human rights are to be made meaningful to the deprived and vulnerable sections of the society and to assure them social and economic justice which is the significant tune of our Constitution. Article 21 assures fundamental rights to live with human dignity and free from exploitation. While considering the scope of Article 21, 38, 39 (f) of the Constitution the following observations from Vikramdev Singh Tomar v. State of Bihar, AIR 1988 SC 1782 , may be noticed : "india is a Welfare State governed by a Constitution which holds the pride of place in the hearts of its citizens. While considering the scope of Article 21, 38, 39 (f) of the Constitution the following observations from Vikramdev Singh Tomar v. State of Bihar, AIR 1988 SC 1782 , may be noticed : "india is a Welfare State governed by a Constitution which holds the pride of place in the hearts of its citizens. It lays special emphasis on the protection and well-being of the weaker sections of society and seeks to improve their economic and social status on the basis of constitutional guarantees spelled out in its provisions. It show; a particular record for women and children, and notwithstanding the pervasive ethos of the doctrine of equality it contemplates special provision being made for them by Jaw, This only to be expected when an enlightened constitutional system takes charge of the political and socio- economic governance of a society, which has for centuries witnessed the relegation of women to a place far below their due. We live in an age when this Court has demonstrated while interpreting Article 21 of the Constitution, that every person is entitled to an equality of life consistent with his human person ality. The right to live with human dignity is the fundamental right of every Indian citizen. And, so, in the discharge of its responsibilities to the people, the State recognises the need for maintaintaing establishment for the care of those unfortunates, both women and children, who are the castaways of an imperfect social order and for whom, therefore, of necessity provision must be made for their protection and welfare. " 30. In my burnable opinion, whenever a Court is called upon to decide the case of a child below 16 years of age, a women sick and infirm, the approach must be made so that he or she gets sufficient opportunity to attain human happiness and perfection and is not exposed to moral degradation. In other words, while dealing with the case of a child below 16 years of age, or a women or a sick or infirm, the Court must be, in the words of Shakespears, "filled with the milk of human kindness. " 31. Before proceeding further, it may be ascertained as to whether the applicant was less than 16 years of age as alleged by him, or more than that as alleged by the complainant and the State. " 31. Before proceeding further, it may be ascertained as to whether the applicant was less than 16 years of age as alleged by him, or more than that as alleged by the complainant and the State. In order prove to that the applicant was less than 16 years of age on the date of occurrence, the extracts of certi ficates have been filed on behalf of the applicant. A certificate containing the marks obtained by the applicant indicates that his date of birth was 16-7-1973. Same date of birth has been given in another extract of Scholdars register and Transfer Certificate. To rebut these extracts, just a Kutumb Register prepared under Chapter 1-B of the U. P. Panchayat Raj (Maintenance of Family Registers) Rules, 1970, (for short the Rules), has been filed, which indicates same date of birth of all the family members of the applicant. In order to prove the different date of birth the complainant, the opposite party must have led some other evidence or must have proved that his certificates filed by the applicant did not relate to him. 32. The object of U. P. Panchyat Raj (Maintenance of Family Registers) Rules, 1970, is to indicate members of family of a person residing within the area of the village. Rule 1 prescribes that a Family register in form A shall be prepared family-wise, containing names und particulars of all persona ordinarily residing in the village pertaining to Gaou Sabha. Rule 3 prescribes ordinary residence as the condition for entry. Rule 4 prescribes quarterly change in the Register consequent upon deaths and births. Rule 5 prescribes correction of existing entries. Rule 6 prescribes inclusion of names and Rule 7 prescribes custody and preservation of relevant register. But the date of birth has not been prescribed to be indicated in the Register. It appears just incidently and casually and not properly that under column 8 of "form A" date of birth, if known, or probable date of birth, is to be mentioned and not exact date of birth. 33. But the date of birth has not been prescribed to be indicated in the Register. It appears just incidently and casually and not properly that under column 8 of "form A" date of birth, if known, or probable date of birth, is to be mentioned and not exact date of birth. 33. In Bhoop Ram v. State of U. P. , Judgments Today, 1989 (2) SC 105, it was observed as follows : "on a consideration of the mattter, we are of the opinion that the appellant could not have completed 16 years of age on 3-12-75 when the occurrence took place and as such he ought to have been treated as child within the meaning of Section 2 (4) of tlie U. P. Children Act, 1951 and dealt with under Section 29 of the Act. We are persuaded to take this view because of three factors. The first is that the appellant has produced a school certificate which carries the date 24-6-60, against the column "date of birth". There is no material before us to hold that the school certificate does not relate to the appellant or that the entries therein are not correct in their particulars. The Sessions Judge has failed to notice this aspect of the matter and appears to have been carried away by the opinion of the Chief Medical Officer that the appellant appeared to be about 30 years of age on 30-4-1987. Even in the absence of any material to throw doubts about the entries in the school certificate, the Sessions Judge has brushed aside it merely on the surmise that it is not usual for parents to anderstate the age of their children by one or two years at the time of their admis sion in schools for securing benefits to the children in their future years. " 34. I am of the view that the extracts of family Register filed by the complainant do no indicate correct date of birth, nor the correct and exact date of birth was required to be furnished or entered under column 8 of the family register. The date of birth shown in the High School certificate and Scholars Register are correct and the applicant was less than sixteen years of age on the date of occurrence. 35. Our Constitution is supreme and sovereign. All the laws of the land emanate from it. The date of birth shown in the High School certificate and Scholars Register are correct and the applicant was less than sixteen years of age on the date of occurrence. 35. Our Constitution is supreme and sovereign. All the laws of the land emanate from it. In other words the Constitution provides framework of the Government and the machinery as to how the constitutional laws are to be interpreted. As in the Preamble, social justice has been made the goal to all the citizens of the country, particularly, to minor children and women etc. What shall be the standard to judge the social justice available "to A PERSON BELOW SIXTEEN YEARS OF AGE AND A WOMAN is an important question. Social justice, in the case of a child below 16 years of age, a woman, a sick or infirm is entirely different than the social justice to some other sections of the society. Ours being a Welfare State, and special care and potection has to be taken in the case of a child as pointed out under Articles 39 (e) and (f ). Similarly Article 21 has also to be interpreted in a very liberal way in the case of a child, a woman, a sick or infirm, and it is to be assumed and the procedure adopted to safeguard the life and liberty of these persons must be just, fair and reasonable and not fanciful or offensive. No procedure which is unfair and unjust and leads to the infringement or viola tion of the constitutional guarantees or solemn promises under the Preamble of our Constitution (i. e. , social justice) or denial of concept of Welfare State or fundamental rights or privileg of the vulnerable section of the society (i. e. , a person below sixteen years of age, a woman, or sick or a infirm) can be held to be valid. 36. Reverting to the principal question whether Division Bench case in Pramod Kumar Manglik v: Smt. Sadhna Rani, 1989 AWC 403 (supra) has been correctly decided ? Paragraphs 1 to 6 of the judgment are about facts and arguments. Paragraphs 7 to 12 of Pramod Kumar Mangliks case (supra) are about the old and new provisions of Section 437 of the Code. Paragraphs 13 to 15 are about arguments of the counsel for accused. Paragraphs 1 to 6 of the judgment are about facts and arguments. Paragraphs 7 to 12 of Pramod Kumar Mangliks case (supra) are about the old and new provisions of Section 437 of the Code. Paragraphs 13 to 15 are about arguments of the counsel for accused. Under Paragraph 17 of the judgment it has mentioned that by Amendment of Section 497 of old Code, some more restrictions have been brought on the power of Magistrate to grant bail. Under Paragraph 18, it has been stated that no law reforms ever recommended that discretion to reject bail in non-bailable case should not remain with the Magistrate. Para 19 is about what the single Judge has observed in Smt. Shqkuntala Devi v. State, 1986 Cri LJ 365 : 1986 AWC 51 : (1986) 4 Cri R 33. Under Paragraph 20 it has been observed that extracts of case-law quoted or relied upon in Smt. Shakuntala Devis case (supra) are good law but they are not applicable to the interpretation of provision of Section 437 of the Code in holding that First Proviso was directory mandatory. Paras 21 and 22 indicate where "may" and "shall" have been used under the Code. Under paragraph 23 it has been stated that Second Proviso to Section 437 was added to impose more check on power of Magistrate to grant bail. Under paragraphs 24 to 26 some quota tions from old commentaries on Cr. P. C. have been set out. Under para graphs 27 & 88 Tajab Hussaitfs case and Lal Bhanjis cases have been discus sed to the effect that in matters of granting bail there is distinction in bailable and non-bailable offences. Under paragraph 29, in Gurbaehan Singhs case the main observation of Supreme Court about First Proviso was not appreciated. It was rather over-emphasized that a Magistrate has no option but to refuse bail in an offence punishable with death or life imprisonment. Under para graph 30 it has been inferred that in view of aforesaid decisions of Supreme Court power to grant bail under Section 437 (i) is discretionary. What is the effect of Proviso to a section has been stated by noticing AIR 1955 SC 765 . Under paragraph 32 abruptly the Division bench reached the conclusion that Single Judge decision in Smt. Shakuntala Devis case (supra) cannot be sup ported and was overruled. 37. What is the effect of Proviso to a section has been stated by noticing AIR 1955 SC 765 . Under paragraph 32 abruptly the Division bench reached the conclusion that Single Judge decision in Smt. Shakuntala Devis case (supra) cannot be sup ported and was overruled. 37. With all humility and profound regards I may say that what were the basis and reasons for. . . . . . First Proviso to Section 497 of Old Code by Criminal Law Amendment Act 18 of 1923 or as to why First Proviso to old Section 497 was retained under Section 437 in the New Code of 1974 were not taken into account. In fact in pursuance of the Public Policy of the then Govt. by Criminal Law Amendment Act No. 18 of 1923 the Proviso was added to Section 497 of old Code. What does Public Policy connote has been explained in Central Inland Water Transport Corporation Ltd. v. Brojonath Ganguly, AIR 1986 SC 1571 para 93 as follows : "public policy, however, is not the policy of a particular Government. It connotes some matter in which concerns tbe public goods and the public interest. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time. As new concepts take she place of old, transactions which wore unce considered against public policy are now being upheld by the Courts and similarly where there has been a well- recognised head of public policy, the Courts have not shriked from extending it to new transactions and changed circumstances and have at times not even flinched from inventing a new head of public policy. " 38. New Code was enacted after the enforcement of the Constitution. Proviso to Section 437 of the Code (New was added or retained from Section 497 of old Code) on account of the avowed object of social justice to persons below sixteen years of age, to women and infirm etc. " 38. New Code was enacted after the enforcement of the Constitution. Proviso to Section 437 of the Code (New was added or retained from Section 497 of old Code) on account of the avowed object of social justice to persons below sixteen years of age, to women and infirm etc. The founding fathers of the Constitution were conscious about the vulnerably conditions of women and children in our society, that is why under Article 15 (3) a separate class for women and children was created and it was provided that in favour of women and children special provisions can be made and that would be no discrimination on grounds of sex or caste etc. Apart from object of social justice, in pursuance of fundamental rights under Article 21 and the object of Welfare State under Article 38 and the provisions of Directive Principles contained under Article 39 (e) and (f) the First Proviso to Section 437 of the Code was enacted. The First Proviso was accordingly not an ordinary piece of legislation rather it was with the aforesaid objects and provisions of the Constitution. The Division Bench failed to appreciate any constitutional background and without referring to relevant principles of interpretation of such an important piece of legislation it abruptly reached the conclusion that the Proviso was directory. Even in Smt. Shakuntala Devi v. State, 1986 Cr LJ 365 (supra) reference was made to fundamental rights under Article 21. To put it differently, the Division Bench did not notice the will of the Legislature, the policy and purpose and object of enactment by adding or enacting the First Proviso to Section 437. See Minerva Talkies Bangalore v. State of Karnataka, AIR. 1988 SC 526 and Cham Taong Shang v. Commander S. D. Baijlal, AIR 1988 SC 603 . The Proviso ought to have been considered not out of the framework of the Code and the different provisions of the Constitution, but the provision must have been considered to ensure co-herence and consistency within the law as a whole, particularly different provisions of Constitution. See Kehar Singh v. Delhi Administration, AIR 1988 SC 1883 . 39. Blackstone in his Commentaries of English Law (Vol 1 page 7) states as follows : - "the fairest and most rational method to interpret the will of the Legislator is by exploring its intentions. . . . by signs the most natural and probable. See Kehar Singh v. Delhi Administration, AIR 1988 SC 1883 . 39. Blackstone in his Commentaries of English Law (Vol 1 page 7) states as follows : - "the fairest and most rational method to interpret the will of the Legislator is by exploring its intentions. . . . by signs the most natural and probable. And these signs are either the words, the context, the subject-matter, the effect and consequence or the spirit and reason of the law. " 40. So many constitutional questions were involved in interpreting First Proviso but the Division Bench, with profound regards, lost sight of the same. To quote Justice Krishna Iyer, J.- "the constitutional question cannot be viewd in vacuee but must be answered in the social milieu which gives it living meaning. There must be a synthesis of ends and means of lifes meladies and laws remedies which is a part of the know-how of constitutional inter pretation. " 41. In fact Directive Principles must have been applied in interpreting the Proviso. To quote Justice Chinnappa Reddy, J.- "it becomes the duty of the Court to apply the Directive Principles in interpreting the Constitution and the laws. The Directive Prin ciple should serve the Courts as a Code of interpretation, Funda mental rights [i. e. Articles 21 and 15 (3) in the present case] should thus be interpreted in the light of the Direciive Principles and the letter should whenever and wherever possible, be read into the former. " [see A. B. S. K. Singh v. Union of India, AIR 1981 SC 298 . ] 42. The interpretation of a particular piece of legislation having been enacted in pursuance of constitutional aspirations and mandate in respect of social justice, Article 21 read with Article 15 (3), 38, 39 (b) must be interpreted with a view to promote its object so that it may not produce an absurd result. In other words, to be more precise, in the words of Lord Diplock in Deris & Sons Ltd. v Atkins, 1977 AC 93, the Court has to refuse to construe a provi sion which would convert it into a variable Roues Charter. In other words, to be more precise, in the words of Lord Diplock in Deris & Sons Ltd. v Atkins, 1977 AC 93, the Court has to refuse to construe a provi sion which would convert it into a variable Roues Charter. The same expres sion was approved rather adapted by a Constitution Bench of the Supreme Court in R. S. Nayak v. A. R. Antulay, AIR 1984 SC 684 , deciding important question on the Interpretation of Statutes, where it was pointed out that a particular statutory provision must be so construed as to advance its object and purpose and not to defeat them. The Court must give to the intendmeut of the law-givers keeping in view mischief which the provision was designed to suppress. If an interpretation leads to an ab, tired result and defeats the object of the legislation the same hat, to be avoided. The exact words (under para 24 page 697 bottom) are set out below : "such an interpretation is contrary to all cannons of construction and leads to an absurd and product which of necessity must be avoided. Legislation must at all costs be interpreted in such a way that it would not operate as a rogues charter. [see Devis & Sons Ltd. v. Atkins, 1977 AC 93". ] 43. With aforementioned constitutional mandate, First Proviso to Sec tion 437 has been enacted. The principal question was as to whether the word "may" in the First Proviso to Section 437 of the Code, which is set out below, is directory or mandatory : "provided that the Court may direct that a person referred to in clause (i) or claused (ii) be released on bail, if such person is under the age of sixteen years or is a woman or is sick or infirm. " 44. In Ambica Quarry Works v. State of Gujarat, (1987) 1 SCC 213 at 218 : AIR 1987 SC 1073 , the principles of interpretation whether a particular provision is mandatory or directory has been explained with reference as to when word "may" can be construed as "shall". The following observations may be noticed : "often when a public authority is vested with power, the expression may has been construed as shall because power if the condi tions for the exercise are fulfilled is coupled with duty. As observ ed. The following observations may be noticed : "often when a public authority is vested with power, the expression may has been construed as shall because power if the condi tions for the exercise are fulfilled is coupled with duty. As observ ed. , the expression mayand shall have often been subject of constant and conflicting interpretation. may is a permissive or enabling expression but there are cases in which for various reasons as soon as the person who is within the statute is entrusted with the power, it becomes his duty to exercise it. " 45. In Craies on "statute Law" 7th Edition, page 285 following state ment is relevant : "it is, however, a well-recognised cannon 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 condi tions 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 com pulsory whenever the object of the power is to effectuate a legal right. " 46. In Govindlal Chhagaulal Patel v. Agricultural Produce Market Com mittee, Godhra, (1976) 1 SCR 451 , Chandrachud, C. J. approved the following passage in Crawford on statutory Construction, 1940 Edition, page 516 : "the question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and inten tion of the Legislature must govern, and these are to be ascertain ed, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other. " Aforesaid statement is referred to in B. P. Khemka Pvt. Ltd. v. Birendra K. Bhowmick, (1987) 2 SCC 407 . 47. " Aforesaid statement is referred to in B. P. Khemka Pvt. Ltd. v. Birendra K. Bhowmick, (1987) 2 SCC 407 . 47. I am of the considered opinion that if the intent of the Legislature in enacting First Proviso would have been ascertained, the Divisional Bench would have not just referred the phraseology of the provision rather nature, design and purpose of the Proviso would have been considered, keeping in view the costitutional mandate, particularly social justice and the provisions of Articles 21, 15 (3), 38 and 39 (e) and (f) of the Constitution, in that event it would have become crystal clear that the word "may" used in the First Proviso was man datory and not directory. 48. The Division Bench in Pramod Kumar Mangliks case (supra) did not notice the ratio of a Five Judge Full Bench of this Court (consisting of Honble Sarvashri K. B. Asthana, the then C. J. , Satish Chandra, K. N. Singh (as they were then) C. S. P. Singh and K. N. Seth, JJ.) Sardar Gyan Singh v. District Magistrate, Bijnore, 1975 All Weekly Cases 321 : 1975 ALJ 450 : AIR 1975 All 315 to the following effect : "no universal rule can be laid down for the construction of a Statue whether a particular provision is mandatory or directory. The use of word shall or may is also not decisive factor in determining this question. In State of U. P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 . Article 320 (3) (c) of the Constitution was held to be directory and not mandatory even though the word shall appears in almost every paragraph and every clause or sub-clause of that article. In considering the question the purpose and object of the provision contained in the statute, the setting and the context in which the provisions occur and the purpose which is sought to be achieved by the provisions and the legislative intent in making the provision is necessary to be considered. In considering the question the purpose and object of the provision contained in the statute, the setting and the context in which the provisions occur and the purpose which is sought to be achieved by the provisions and the legislative intent in making the provision is necessary to be considered. " While laying down the dictum as above, the Full Bench placed reliance upon the following observation in Kaza Buland Sugar Company v. Rampur Munici pality, AIR 1965 SC 895 : "the purpose for which the provision has been made and its nature, the intention of the Legislature in making the provision the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory. " 49. Recently in Karnal Leather Karmchari Sangathan v. Liberty Footwear Company and others, Judgments Today, 1989 (3) SC 537, their Lordships of the Supreme Court after extracting the relevant passages from Maxwell of Interpre tation of Statutes, 12th edition, page 314 and Craise on Statutes, Vth Edition, page 63 (under para 26, page 543) made the following observations : - "it is now well-established that wordings of any provision are not deter minative as to whether it is absolute or directory. Even the absence of inner provision for non-compliance does lead to inference that it is only directory. The Court, therefore, must carefully go into underlying idea and ascertain purpose to be achieved notwithstanding the context of the provision. " 50. With all humility I am of the view that the Division Bench in Pramod Kumar Manglik v. Smt. Sadhna Rani, 1989 AWC 403 (supra), did not notice the underlying idea nor did ascertain the purpose to be achieved by the Proviso, nor the Division Bench took into consideration the nature, design, purpose and object of the Proviso, nor had it noticed the setting and the con text, the constitutional background, particularly, the concept of social justice, Article 14 (3), Article 21 and the concept of Welfare State, the human rights, were not taken into consideration. 51. 51. In my opinion, the interpretation of a particular statute, particularly in respect of human liberty and human rights must be made in such a way so that oppression to the vulnerable section of society is alleviated and substantial justice is done. It must be the foremost task of the Court while putting a cons truction of a particular piece of legislation. May be that the Legislators himself must have made it clear by using the expression "shall" or some other ex pression so as to make it imperative in first Proviso to Section 437 that tho Magistrate must grant bail in case a woman, a child below 16 years of age or an infirm is brought before the Court in any offence. For that it can be said that the legislators were not born with Benthams genius for legislation. Francis Bacon has, however, stated that there could be no worst torture than the torture of laws. But that torture of laws could be removed to a considerable extent by interpreting a particular piece of legislation so as to advance sub stantial justice. In that reference I am reminded of a speech by Lord Brougham on Law Reforms in the following words : "it was the boast of Augustus. That he found Rome of Brick and left it marble, but how much nobler will be the soverigns boast when he shall have to say that he found law dear, and left it cheap ; found it a sealed book, left it a living letter ; found it the patrimony of the rich, left it the inheritor of the poor ; found it the two edged sword of craft and oppression, left it the staff of honesty and the shield of innocence". I had to express a dissenting opinion to the view already taken by the Division Bench in Pramod Kumar Manglik v. Smt. Sadhana Ranis case (supra) as the broad issues of Constitution and legal principles of considerable import ance were involved. It can be said that the view taken by the Division Bench is old view and mine is recent or new minority opinion. A dissenting minority view is virtually an appeal to the conscience of this Court when a later decision may correct the error into which the dissenting judge believes the Division Bench to have fallen. It can be said that the view taken by the Division Bench is old view and mine is recent or new minority opinion. A dissenting minority view is virtually an appeal to the conscience of this Court when a later decision may correct the error into which the dissenting judge believes the Division Bench to have fallen. In other words, the minority opinion is expressed with a positive hope to render it a majority opinion of tomorrow. The statutes seek to control the. . . . . . . . . the difficulties are bound to come. We must think in terms of time CONTINUUM. A judge should not feel isolated as his minority opinion might be criticised or the old opinion expressed might be appreciated. In a limitless time and endless earth and territory the dissenting opinion may be appreciated. One should have abiding faith in it. Since time immemorial in remote post either in the field of philosophy, literature, science or law, a view cannot be regarded as true simply because it is an old view or a new cannot be rejected as it is a recent one. It is for the intelligentia to closely examine and search a grain of truth from the chaff. I am reminded of what great Sanskrit poet Kalidas has said in his Malvikanimittram play : (hindi words) PURANAMITEV NA SADHU SARVAM NA CHAPI KAVYAm NAVAMITYAVD A M, SANTAH PAR1kshyantert BHAJANTE MURHA PAr PRATYAYNEYE BUDHIh 53. In substance, this connotes that simply because a thing is old it can not become correct or as a thing view or poetry is new hence it cannot be discarded. It is for the intelligentia to look into old and new and to choose which is correct and best. 54. Leading to the similar consequence there is a Latin Maxim : nova constitution futuris for mam imponere debet non prateteritis which connotes that a new law ought to regulate what is to follow and not the past. Justice looks at truth alone, it knows not father or mother i. e. , "justitia non novit patrem nee matrem soram veritatem special justitia. " 55. I am reminded of what Bhavdhuti, an eminent Sanskrit poet, who used to write poetry mostly depicting pathos and pathetic scene said when some people used to criticise him. Justice looks at truth alone, it knows not father or mother i. e. , "justitia non novit patrem nee matrem soram veritatem special justitia. " 55. I am reminded of what Bhavdhuti, an eminent Sanskrit poet, who used to write poetry mostly depicting pathos and pathetic scene said when some people used to criticise him. He boldly expresed his opinion in malti Madhav that in a limitless future and endless territory and earth there would not be dearth of persons who would appreciate his opinion. That Shlok is as follows : stem q^: n n (Hindi words) YE NAM KECHID1h NAH PRATHYEN TYENVAGYAN ; YANANTU TE KIMAPI TEN PARTI NAISH YETNEH : UTPATSYATE HI NAM KOAPI SAMANDHRMA ; KALOHIYAM NIRVADHIH VIPULA CHA PRITHVI. 56. The concept of social justice in the preamble of the Constitution, the fundmental rights under Article 15 (3), Article 21, the concept of welfare State and the public policy have been actually lost sight of by the Division Bench. I am constrained to say that opinion of the Division Bench in Pramod Kumar Mangliks case (supra) is troubling less for the law it creates than for the law it ignores. In such matters, the correct procedure to be followed has been pointed out by the Supreme Court in Union of India v. Raghubir Singh (dead) by Legal Representives etc. [judgments today, 1989 (2) SC 227, para 14] as follows : "in a developing society such as India the law does not assume its true function when it follows a groove chase d amidst a context which has long since crumbled. There will be found among some of the areas of the law norms selected by judicial choice educated in the experience and values of a world which passed away 40 years ago. The social forces which demand attention in the cauldron of change from which a new society is emerging appear to call for a new perceptions and new perspectives. The recognition that the times are changing and that there is occasion for a new jurispru dence to take birth is evidenced by what this Court said in the Bengal Immunity Company Ltd. v. The State of Bihar and others, (1955) 2 SCR 603 . 57. The first Proviso to Section 437 of the Code has been erroneously held to be directory. 57. The first Proviso to Section 437 of the Code has been erroneously held to be directory. The vital constitutional provisions have not been con sidered even though Article 21 of the Constitution was referred in Shakuntala Devi v. State of U. P. , 1986 Cr. LJ 365, which was overruled by the Division Bench. With profound regards and all humility, I am of the considered opinion that the Division Bench decision in Pramod Kumar Manglik v. Smt. Sadhna Rani (supra) has not been correctly decided. It is not inapt to mention that in case a particular decision rendered by a larger Bench has not considered some broad issues i. e. as in the instant case, concept of special justice principles of Articles 15 (3), 21, 38, 39 (e), (f) and the concept of public policy nor it has considered the adverse circumstances affecting the lives of disobled men, women and children and their general welfare and the decision happens to be a recent one, the same may be overruled. The following observation may be noticed in Conwoy v. Rinner, (1968) AC 910, 938. which is as under ; a decision ought to be overruled if in relation to some broad issue or principle it is not considered just or in keeping with contemporary social conditions or modern conceptions of public policy (the unjust or outmoded criterion ). " 58. The following observations in State of Washington v. Dawason & Co. US 646/68 L Ed. 219 by Brandeis, J. is set out below : - "the doctrine of stare decisis should not deter us from overruling that case and those which follow it. The decisions are recent ones. They have not been acquiesced in. They have not created a rule of property around which vested interests have clustered. They affect solely matters of transitory nature. On the other hnad, they affect seriously the lives of men, woman and children and the general welfare. Stare decisis is ordinarily a wise rule of action. But it is not a universal, inexorable command, The instances in which the Courts have disregarded its admonition are many. " 59. The aforesaid observations have been relied upon by a Constitution Bench in Union of India & another v. Raghubir Singh etc. (supra), at page 438. 60. Stare decisis is ordinarily a wise rule of action. But it is not a universal, inexorable command, The instances in which the Courts have disregarded its admonition are many. " 59. The aforesaid observations have been relied upon by a Constitution Bench in Union of India & another v. Raghubir Singh etc. (supra), at page 438. 60. Office is accordingly directed to place the papers of this case before Honble the Chief Justice for constituting a Full Bench to decide the contro versy as to whether the Division Bench decision of this Court in Pramod Kumar Manglik v. Smt. Sadhna Rani, (supra), has been correctly decided ; and whether the word "may" used in the First Proviso to Section 437 of the Code mandatory or directory. The Full Beach may consider the matter in view of the constitutional provisions indicated above particularly with reference to the concent of social justice under the Preamble of the Constitution and the provisions of Articles 21, 15 (3), 38 and 39 (e) and (f) of the Constitution and the concent of public policy and human rights. The Bench may also consider the nature design purpose and object of the First Proviso to Section 437, specially with reference to the Constitutional basis for its enactment. It would be better if the Full Bench is constituted within a month, so that within next three months the controversy, may be resolved. 61. As the matter may take some time, hence it would not be desirable to keep the applicant in jail. I, therefore, consider it proper grant the appli cant an interim bail. 62. Accordingly let the applicant Hare Ram Chowdhry be released on an interim bail in Crime No. 73 of 1989 under Section 337/326, IPC, P. S. Bairia, District Ballia for a period of one hundred and twenty days from the date he is released from jail, on his executing a personal bond and furnishing two sureties to the satisfaction of the Chief Judicial Magistrate, Ballia. 63. After the answer of the Full Bench is received, the matter may be placed before me, so that final orders on the application may be passed. Order accordingly. .