JUDGMENT Hon’ble Barkat Ali Zaidi, J.—In the aforesaid criminal appeals, the common question for consideration is about the amendment of the Criminal Procedure Code, in Section 389 Cr.P.C, whereby the following proviso has been added : “Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release. Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.” 2. The contention raised is that this proviso is only directory and not mandatory. A large section of the Bar was represented by Senior Lawyers, who have argued that this provision is only Directory and not Mandatory. It was argued by the Members of the Bar that compliance with this provision will entail undue hardship and even those persons whose involvement in the offences is nominal in nature will suffer, which would be wholly unjust and unfair. 3. It was pointed out that there are a number of clauses in the Criminal Procedure Code where the word ‘shall’ has been used as in this Amendment, but the non-compliance thereof, does not entail any incurable illegality and the word ‘shall’ in these provisions is therefore, read as ‘May’ and is only Directory. Reference in this connection was made to Sections 100 (2), (3), (4), (5), (6), (7), 204(2), 207, 208, 209 of the Criminal Procedure Code and it was pointed out that in all of these sections the use of the word ‘shall’ does not make it mandatory and is only Directory and it has been held that the non-compliance of these provisions does not render the proceedings illegal. 4. The argument in this regard is certainly very solid in substance and leads towards the inference that the use of this word ‘shall’ in the amended provision does not make it Mandatory. 5. There is, however, another angle from which the matter may be examined, leading to the same result and that is that the amendment is in a procedural law. 5. There is, however, another angle from which the matter may be examined, leading to the same result and that is that the amendment is in a procedural law. Procedure as is well acknowledged is the hand-maid of justice and if the dictates of justice demand, the mandate may be bye-passed, because the desideratum is the delivery of justice. 6. In the latest case on the subject by the Supreme Court in the case of Sheikh Salim Haji Abdul Khayumsab v. Kumar and others, (2006) 1 SCC 46 , it was observed as follows : “A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed......" This case was about a written statement not having been filed within the stipulated period of 90 days as prescribed in Order 1 Rule-8, C.P.C. and the question was whether the Court had the authority to admit the written statement even after the expiry of 90 days period. Order-8 Rule-1 as amended stood as follows : “1. Written Statement.—The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence : Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.” This is what the Supreme Court said : “Order 8, Rule 1. After the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the Court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in Order-8 Rule-1 is procedural. It is not a part of the substantive law. Substituted Order-8 Rule-1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the Court faced with the frequent prayers for adjournments. Further, the nature of the provision contained in Order-8 Rule-1 is procedural. It is not a part of the substantive law. Substituted Order-8 Rule-1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the Court faced with the frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried”. 7. Reference in this case was also made to the case of Sangram Singh v. Election Tribunal Kotah, (1955) 2 SCR 1 : AIR 1955 SC 425 and the following observations were extracted therefrom : “A code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.” 8. It will thus be seen that from the very early stages of its’ constitution, the Supreme Court has been consistently of the view that in procedural matters, where the word "Shall’ has been used, it does not necessarily imply an unflinching mandate which cannot be departed from in any circumstance. 9. It will thus be seen that from the very early stages of its’ constitution, the Supreme Court has been consistently of the view that in procedural matters, where the word "Shall’ has been used, it does not necessarily imply an unflinching mandate which cannot be departed from in any circumstance. 9. A reference in this connection may be made to the case of Narayan Rao v. State of Andhra Pradesh, A.I.R. 1957 S.C. 737, which was decided in the year 1957 and in which the question was whether non-compliance of Section 173, Cr.P.C. for non-furnishing of documents as pointed therein, would render the proceedings illegal and it was observed as follows : “Does such an omission necessarily render the entire proceedings and the trial null and void; or is it only an irregularity curable with reference to the provisions of Section 537 (a) of the Code? In other words, are the provisions of Section 173 (4) read with Sec. 207-A (3) mandatory or only directory? There is no doubt that those provisions have been introduced by the amending Act of 1955, in order to simplify the procedure in respect of inquiries leading upto a Sessions trial, and at the same time, to safeguard the interests of accused persons by enjoining upon police officers concerned and Magistrates before whom such proceedings are brought, to see that all the documents, necessary to give the accused persons all the information for the proper conduct of their defence, are furnished. It has rightly been contended on behalf of the appellant that it was the duty of the Magistrate to see that the provisions aforesaid of the Code, have been fully complied with. Magistrates, therefore, have to be circumspect, while conducting such proceedings, to see to it that accused persons are not handicapped in their defence by any omission on the part of police officers concerned, to supply the necessary copies. But we are not prepared to hold that non-compliance with those provisions has, necessarily, the result of vitiating those proceedings and subsequent trial. But we are not prepared to hold that non-compliance with those provisions has, necessarily, the result of vitiating those proceedings and subsequent trial. The word ‘Shall’ occurring both in sub-section (4) of Section 173 and sub-section (3) of Section 207-A, is not mandatory but only directory, because an omission by a police officer, to fully comply with the provisions of Section 173, should not be allowed to have such a far-reaching effect as to render the proceedings including the trial before the Court of Session, wholly ineffective. Instead of simplifying the procedure, as was intended by the amending Act, as indicated above, the result contended for on behalf of the appellant, will, necessarily, result in re-opening the proceedings and trials which may have been concluded long ago. Such a result will be neither conducive to expeditious justice nor in the interest of accused persons themselves. Certainly, if it is shown, in a particular case, on behalf of the accused persons that the omission on the part of police officers concerned or of the Magistrate before whom the committal proceedings had pended, has caused prejudice to the accused, in the interest of justice the Court may re-open the proceedings by insisting upon full compliance with the provisions of the Code.” 10. What has been said in the last paragraph in the observations cited above is significant and the advantage of holding that the provision is Directory and not Mandatory is that in appropriate cases, if deemed necessary in the interest of justice the Court can provide adequate time to the public prosecutor for showing cause against the accused to release him on bail. The demolition of the right of the Court to use the provision in an appropriate case for the advancement of the cause of justice will not be conducive to the principles of justice, equity and good conscience and that is by itself reason enough to hold that the amended proviso is Directory in nature and does not put a full stop on the powers of the Court to act according to the dictates of justice in the facts and circumstances of the case in hand. 11. Mr. 11. Mr. Justice G.P. Singh in his book Principles of Statutory Interpretation 9th Edition in Chapter V (at page 363-364) under the Heading General has made the following observation : “If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.” 12. There can be no doubt that there is imminent likelihood of serious general inconvenience arising if the rule is to be enforced in a mandatory manner, because, there may be cases where there is prima-facie material available on the face of the record to indicate the innocence of the accused, or there has been an error on the part of the convicting Court which is apparent on the face of the record. If the rule is enforced in such cases, an innocent person will have to remain behind bars for a period of time, and the Court will be rendered powerless to extricate him, from a situation of that nature. That will not be conducive to justice, and will violate the principles of justice and equity. 13. We may also refer to Maxwell’s The Interpretation of Statutes’. In Chapter-X (at page 199) of the Twelfth Edition published by N.M. Tripathi Private Ltd.,1976 where it has been mentioned as follows : “In determining either the general intention of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one”. “An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available.” 14. There can be no doubt that an interpretation of the amendment providing for elasticity in its observance will further the cause of justice and will avoid inconvenience as has already been indicated above. 15. There is a different dimension to this matter, even though, not analogous to the controversy. Sub-clause (c) of clause (3) of Rule-18 of the Allahabad High Court Rules, 1952 is as follows : “(3) ............. 15. There is a different dimension to this matter, even though, not analogous to the controversy. Sub-clause (c) of clause (3) of Rule-18 of the Allahabad High Court Rules, 1952 is as follows : “(3) ............. (c) Where the prayer for bail is contained in a petition or appeal or application for revision, notice thereof may be given to the Government Advocate the same day prior to the hearing of such petition or application and the fact of such previous notice having been given, shall be endorsed on such petition or application. Alongwith such notice a certified copy or one attested to be true by the counsel, of the judgment appealed from or sought to be revised shall also be given to the Government Advocate.” 16. It is significant to note, that, in the impugned amended proviso, no time has been specified for being given to the public prosecutor for showing cause against the release of the accused on bail. The only requirement according to the proviso is to give opportunity to the public prosecutor for showing cause against the release and the High Court Rules, quoted above, provides that opportunity, while at the same time, no delay will be caused, because, the matter can be heard the same day. It can be said that in this manner, the proviso will not cause any hardship. 17. I am, therefore, of the view that the amended provision under consideration is directory in nature and not mandatory. Hon’ble Mukteshwar Prasad, J.—I have had the privilege to go through the judgment prepared by my brother Justice B.A. Zaidi but I am inclined to disagree with the judgment of my brother for the following reasons. 19. When the aforesaid criminal appeals came up for admission and consideration of bail to the convict appellants, as provided under Section 389, Cr.P.C. a preliminary objection was raised with vehemence by the members of Bar representing the appellants to the effect that proviso added to Section 389 (1), Cr.P.C. is directory in nature and in fact, no opportunity should be given to Public Prosecutor to show cause against the release of the appellants on bail. It was contended that there is no time limit fixed in the proviso and, as such, amendment is unreasonable and arbitrary. It was contended that there is no time limit fixed in the proviso and, as such, amendment is unreasonable and arbitrary. It was argued by members of Bar that in case it is held that proviso is mandatory and Additional Government Advocate is given an opportunity to show cause in writing, then it will entail undue hardship to the convict and proviso is very harsh. It was also submitted that convicts whose role in commission of crime was nominal or negligible and who were found guilty and convicted with the aid of Section 34 or Section 149 I.P.C. would suffer a lot and it would not be just and fair to detain them unnecessarily in prison. 20. It was also pointed out that word ‘shall’ used at two places in the 1st proviso is not mandatory and in several Sections like Sections 100 (2), (3), (4), (5), (6), (7), 190, 204(2), 207, 208 and 209 of Cr.P.C. the word “shall” was used by Legislature but the provisions were not treated as mandatory and it has been held in several decisions that non-compliance of these provisions does not render the proceedings illegal. It was next contended that in the event of compliance of the proviso, cause of justice would suffer and proviso is violative of Article 21 of the Constitution of India. 21. Reliance was placed by learned counsel for the appellants on a recent decision of the Apex Court in Sheikh Salim Haji Abdul Khayumsab v. Kumar and others, (2006) 1 SCC 46 . Order VIII, Rule 1, C.P.C. was amended by C.P.C. (Amendment) Act, 2002 w.e.f. 1.7.2002. The text of Order 8 Rule 1, C.P.C. as it stands, reads as under : “1. Written statement.—The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence : Provided that where the defendant fails to file the written statement within the said period of thirty days he shall be allowed to file the same on such other day. as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons." 22. Order 8 Rule 1, C.P.C. after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him. Order 8 Rule 1, C.P.C. after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him. While interpreting the aforesaid proviso, the Apex Court held in Kailash v. Nanhku, 2005 AIR SCW 2346 that observance of time schedule contemplated under Order VIII, Rule 1, C.P.C. shall be the rule and departure, therefrom would be an exception made for satisfactory reasons only. This amendment was admittedly done with a view to reduce the delay in disposal of civil matters. 23. The Apex Court referred a decision rendered in Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425 , wherein it was observed as under : "Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But, taken by and large and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.” 24. The following decisions of Supreme Court of India have also been relied upon by the appellants counsel : 1. Shashikant Singh v. Tarkeshwar Singh and another, (2002) 5 SCC 738 2. Sharif-Ud-din v. Abdul Gani Lone, (1980) 1 SCC 403 3. Narayan Rao v. State of A.P., AIR 1957 SC 737 4. State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 5. A.C. Agrawal v. Sub Divisional Magistrate Delhi, AIR 1968 SC 1 25. Shashikant Singh v. Tarkeshwar Singh and another, (2002) 5 SCC 738 2. Sharif-Ud-din v. Abdul Gani Lone, (1980) 1 SCC 403 3. Narayan Rao v. State of A.P., AIR 1957 SC 737 4. State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 5. A.C. Agrawal v. Sub Divisional Magistrate Delhi, AIR 1968 SC 1 25. In Sharif-Ud-din case (supra) it was observed as under : “The fact that the statute uses the word ‘shall’ while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the court has to ascertain the object which the provision of law in question has to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory.” 26. Our attention was drawn to the observation of the Apex Court of the country made in the following decisions: 1. Municipal Corporation of Greater Bombay v. B.E.S.T. Workers Union, AIR 1973 SC 883 2. Ayya alias Ayub v. State of U.P. and another, AIR 1989 SC 364 3. Union of India v. Paul Manickam and another, 2004 SCC (Cri) 239 27. In nutshell, the emphasis of the members of Bar has been that in the event of holding the proviso as mandatory, the appellants would be sufferer and would not get justice in a reasonable period and would unnecessarily be languishing in jail. Moreover, the State counsel would not assist the court in deciding the bail prayer of the appellants except mentioning some facts and findings already mentioned by the trial Judge in his judgment. It would, therefore, be an exercise by the court in futility and no useful purpose would be served by allowing an opportunity to show-cause to counsel representing the State. 28. On the other hand, learned Additional Government Advocate contended with all force at his command that the proviso is mandatory and was enacted with a view to improve law and order situation in the country and to prevent the hardened criminals from going out of Jail immediately after their conviction. It was emphasized whether the provision is mandatory or directory has to be determined keeping in mind the context and situation, which warranted enactment. It was emphasized whether the provision is mandatory or directory has to be determined keeping in mind the context and situation, which warranted enactment. So far as the enactment of the proviso to Section 389 (1), Cr.P.C. is concerned, there was no provision in the entire Cr.P.C. to provide an opportunity of hearing to the State at the time of consideration of bail prayer of a convict-appellant. This used to be a matter between the court and appellants and for the last 4-5 years a formality of hearing State Counsel also was observed in the court. Attention of the Court was drawn to Section 439, Cr.P.C. which lays down that the High Court shall before granting bail to an accused, who is involved in an offence punishable with imprisonment for life or for an offence which is triable exclusively by Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor. By enacting proviso to Section 439, Cr.P.C. the law makers made it clear that the High Court or a Sessions Judge shall in all cases hear the State also before granting bail to an offender, who had committed heinous offences which are punishable with imprisonment for life or offences triable by Court of Session. However, no such rider was there under Section 389, Cr.P.C. and therefore, on the recommendations made by the Law Commission of India, Police Commission as well as observations made by the various courts of the country and suggestions received from the State Governments and others and with a view to remove certain lacunas felt in its working the proviso was added. In support of his contention, he drew our attention to proviso (4) which was added after 3rd proviso to sub section (i) of Section 437, Cr.P.C. and urged that an analogous proviso was added and made mandatory for the Courts to give an opportunity of hearing to Public Prosecutors also before releasing on bail to an accused who was alleged to have committed an offence punishable with death or imprisonment for life or imprisonment for seven years or more. 29. 29. Learned A.G.A. strengthened his arguments by drawing our attention to sub-section (3) of Section 389 Cr.P.C. and to the reasonable classification made in the newly added proviso of Section 389, Cr.P.C. Section 389(3), Cr.P.C. provides that even the trial court is empowered to release a convict on bail provided the convict satisfies the court that he intends to file an appeal against his conviction and he was on bail during trial and offence committed by him was bailable or he has been sentenced to a term of imprisonment not exceeding three years. In other words, the legislature has empowered the trial courts also to grant bail to those convicts whose Oases were covered under sub-section (3) of Section 389, Cr.P.C. Under sub-section (3) giving an opportunity of hearing to State Counsel has not been made a condition precedent and right to show-cause against the release of convict on bail after conviction has not been conferred. Further, it is not correct to say that proviso would entail and cause a lot of hardship to the convicts and is unreasonable because no time limit is fixed therein. It was submitted that amendment in Section 437, Cr.P.C. by adding fourth proviso and addition of the proviso to sub-section (1) to Section 389, Cr.P.C in question were done on the basis of recommendations of the Law Commission and National Police Commission and the State Governments also. The Parliament in its wisdom thought that it is just and proper to provide a restriction on the instant release of a convict who has been found guilty by a competent court of law for the offences which are punishable with death, imprisonment for life or for a term up to 10 years. Thus, the offences punishable with lesser punishment than ten years have not been covered and do not come within the ambit of newly added proviso. In other words, a reasonable classification has already been made by the law-makers and as such, it will not be correct to say that the proviso is violative of the Constitution. So far as detention of appellant in Jail after their conviction is concerned, it is not proper to say that they would be unnecessarily detained. The appellants are detained in Jail and their liberty is curtailed by law courts in accordance with the procedure established by law. 30. So far as detention of appellant in Jail after their conviction is concerned, it is not proper to say that they would be unnecessarily detained. The appellants are detained in Jail and their liberty is curtailed by law courts in accordance with the procedure established by law. 30. Section 389(1), Cr.P.C. as it stands now reads as under : 389. (1) Pending any appeal by a convicted person, the appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that be released on bail, or on his own bond : Provided that the appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release : Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail. (2) The power conferred by this section on an appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3)Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,— (i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.” 31. (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.” 31. A bare perusal of Section along with proviso indicates that after admission of first appeal, which is a creature of statute, the appellate court may for reasons to be recorded in writing, order that the execution of sentence be stayed and the appellant may be released on bail also. Now from 23rd June, 2006, the controversial proviso has come into force, which requires the court that before granting bail to a convict, the court shall give an opportunity to Public Prosecutor to show-cause in writing against such release. It is noteworthy that a second proviso was also added for the first time providing that the Public Prosecutor may apply for cancellation of bail of the appellant also. It will not be out of place to mention that there was no such provision authorizing the Public Prosecutor to move an application for cancelling the bail of the appellant in the Cr.P.C. and for the first time a specific provision was made through second proviso to Section 389 (1), Cr.P.C. It was held by a Bench of five Judges of Supreme Court of India in State of U.P. v. Manbodhan Lal Srivastava (supra) that use of word ‘shall’ in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceedings or the outcome of the proceedings would be invalid. On the other hand, it is not always correct to say that where the word ‘may has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. 32. A Bench of five Judges in A.C. Agrawal’s case (supra) held that under Section 191 (i) (b), Cr.P.C. the Magistrate is bound to take cognizance of any cognizable offence brought to his notice. The word ‘may take cognizance’ in this context means must take cognizance’ otherwise that section would be violative of Article 14. 33. Mr. 32. A Bench of five Judges in A.C. Agrawal’s case (supra) held that under Section 191 (i) (b), Cr.P.C. the Magistrate is bound to take cognizance of any cognizable offence brought to his notice. The word ‘may take cognizance’ in this context means must take cognizance’ otherwise that section would be violative of Article 14. 33. Mr. Justice G.P. Singh in his book ‘Principles of Statutory Interpretation’ in Chapter V (at page 338) has made following observations : “No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be considered.” As approved by the Supreme Court: "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 intention of the Legislature must govern, and these are to be ascertained 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.” "For ascertaining the real intention of the Legislature”, points out SUBBARAO, J. “the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom: and above all, whether the object of the legislation will be defeated or furthered.” If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.” 34. It is well settled that rules of procedure are handmaid of justice. It is well settled that rules of procedure are handmaid of justice. In a recent decision in Rajesh Ranjan Yadav v. C.B.I. through its Director, 2006 AIR SCW 5853, the Apex Court observed as under : “We are of the opinion that while it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty but at the time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society.” 35. After having given anxious consideration to the entire submissions made on behalf of the appellants and learned A.G.A. for the State, various decisions relied upon by the parties and added proviso to Section 389 (1), Cr.P.C. and context and situation in which and the object for which the proviso in question was added, I am clearly of the opinion that proviso is mandatory and the State has to be given an opportunity of hearing and to oppose the grant of bail to a convict who has been found guilty for committing heinous offence as provided in the proviso. The law requires that the State has to be given an opportunity to show-cause in writing. It means the proviso is mandatory. In my view, the proviso is not a mere formality and it has to be observed by all the appellate courts. It is true that no time limit is fixed in the proviso by legislature. I am, therefore, of the opinion that a period of 15 days to the State to show-cause in writing will be reasonable period and it cannot be said to be excessive. I may mention that this Court may frame rules also with regard to time limit for filing a show-cause in writing by the State. Until this exercise is done by this Court, a period of 15 days will be appropriate. I may mention that this Court may frame rules also with regard to time limit for filing a show-cause in writing by the State. Until this exercise is done by this Court, a period of 15 days will be appropriate. This argument raised on behalf of appellants that no useful purpose would be served by giving an opportunity, in my opinion, is devoid of substance and has no legs to stand. The simple reason is that it is the State, who could assist the Court by showing antecedents/history sheet of the convicts-appellants. The Public Prosecutor could tell the court that appellant is a previous convict and as such, he does not deserve bail after his conviction. Moreover, the liberty of bail granted earlier was misused by him. I, therefore, hold that the first proviso added to sub-section (1) of Section 389 Cr.P.C. is mandatory in nature and not directory. The objection, therefore stands over-ruled. By the Court.—There are two judgments of the Division Bench comprising Hon’ble Mukteshwar Prasad, J. and Hon’ble B.A. Zaidi, J. whereby on the Proviso of Section 389 Cr.P.C. both have divided in opinion in their judgments. Therefore, the matter be placed before another Hon’ble Judge for hearing and decision. Let the record of the appeals along with our opinions be placed before Hon’ble the Chief Justice for nomination of another Bench. ———