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18. In none of the sections the word 'shall' has been used. In Pramod Kumar v. Sadhna Ram, 1989 Cr LJ 1772, a Division Bench of this Court has interpreted the word 'may' and 'shall' and observed in Paragraph 22 of the judgment as under :

"In view of the intentional use of the word 'may' in such sub-section (1) of Section 437, CrPC and of the word 'shall' in three of its sub-sections, then again using the word 'shall1 in Section 436 and the word 'may' in Section 439 we cannot but hold that the Legislature has consciously made distinction in choosing the respective verbs in the various . provisions. It has used the auxiliary verb 'shall' where it desired the provisions to be mandatory and has used 'may' where it wanted the martter to be left to judicial discretion."

26. A perusal of the above-mentioned sections for bail indicate that whereas in Section 437, CrPC there is no provision for any notice of the application for bail to the Public Prosecutor, in Section 439, CrPC however it is specifically mentioned that before granting bail to a person notice of the application for bail to the Public Prosecutor is required, unless for reasons to be recorded in writing, the Court is of opinion, that it is not practicable to give such notice.

27. In Section 437, CrPC the provision for notice is not given because there are specific provisions under the Code of Criminal Procedure which provide that all the relevant material relating to the case is produced or available before the Magistrate. Thus Section 157, CrPC provides that an officer-in-charge of the police station shall forthwith send a report of the same to a Magistrate who is empowered to take cognizance of the offence. In Section 167, CrPC it is provided that "whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57 and there are grounds for believing that the accusation or information is well-founded, the officer-in-charge of the police station or the police officer making the investigation, if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate".

28. Section 173(5) provides that when the police report is in respect of a case to which Section 170 applies the police officer must forward to the Magistrate the documents mentioned therein.

29. Section 437, CrPC applied to relatively minor offences where the punishment provided is not life sentence or death. In our opinion any application for bail under Section 437, CrPC should ordinarily be decided by the Magistrate the same day, except in rare cases where reasons shall be recorded in writing for adjourning the hearing of the bail application. We think it necessary to lay down this guideline in respect of such applications under Section 437 in view of (i) there being no provision for giving notice to the Public Prosecutor, as is required for applications under Section 439(2) and Article 21 of the Constitution, which has been given a very wide interpretation in a series of decisions of the Supreme Court, referred to above.

35. We may now consider the provisions of Section 439, CrPC (as quoted above) which deal with the bail application before the High Court and Court of Sessions.

36. It may be noted that there is a very important difference between Sections 437 and 439 inasmuch as there is no requirement of giving notice to the Public Prosecutor in Section 437 but there is such a requirement in the proviso to Section 439(1). Obviously this difference was made by Parliament in its wisdom because it was felt that the cases before the Court of Sessions are more serious as compared to the cases before the Magistrate which may be petty ones.