RAM PRATAP Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Though not framed by the referring Division Bench, question to be answered, is - "whether non-obstante clause in Rule 22 of Chapter IV of the High Court of M.P. Rules, 2008 overrides the guideline, as incorporated in Rule 15 of the same Chapter, for listing of a subsequent application for suspension of sentence/grant of bail".

(2.) The appellant stands convicted for murder of his wife and sentenced to life imprisonment. His first application for suspension of sentence and grant of bail was dismissed as withdrawn by a Division Bench comprising Deepak Verma, J. (as His Lordship then was) and one of us (Rakesh Saksena, J.) whereas the second one (I.A. No.4089/2009) was moved only after transfer of Deepak Verma, J. to Karnataka High Court. On being requested to nominate Judges constituting a Division Bench to hear the repeat application, Hon'ble the Chief Justice, presumably in exercise of the power conferred by Rule 22, directed listing of the case before regular Division Bench. When the matter came up for hearing before the regular Division Bench comprising R.S. Garg and U.C. Maheshwari, JJ., a question of propriety was raised by learned Deputy Advocate General in view of the fact that one of the members of the Division Bench that dismissed the earlier application was available to hear it. In response, learned counsel for the appellant submitted that a Division Bench consisting of A.K. Shrivastava and Sushma Shrivastava, JJ. had already overruled a similar objection, by an elaborate order-dated 21.1.2009 passed in Criminal Appeal No.1744/2004 (Jagga @ Jagat Singh v. State of M.P.), holding that non-obstante clause occurring in Rule 22 does override the other rules including Rule 15. Doubting correctness of the view, the Division Bench postponed hearing of the successive application by making the following observations:

(3.) Before proceeding to answer the reference, attention may be directed to Rule 15 and Rule 22, which read thus - 15. Subsequent applications for Bail - All subsequent applications under sections 389(1), 438 and 439 of the Code of Criminal Procedure, 1973, shall be listed before the same Judge/bench who/which had decided the first application, even if earlier application was dismissed for want of prosecution, or dismissed as not pressed or withdrawn. ... ... 22. Notwithstanding anything hereinbefore contained in these Rules, the Chief Justice may, by a special or general order, direct a particular case (s) or a particular class (es) of cases to be listed before a particular bench.