GOPAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) We are seized of a reference from Lord Chief Justice on :-

(2.) The issue arises in none-too happy circumstances. It all started with filing of Cr. A. No. 997/98 by appellant along with accompanying I.A. No. 3002/98 under Section 389 Cr. P.C. praying for suspension of his sentence. The application was rejected by the concerned Roaster Bench (Chitre, J) by order dated 9-9-1998. Meanwhile there was a change in Roaster and Criminal Appeal Roaster went to Vyas, J. Appellant filed second application (I.A. No. 3612/98) again under Section 389 Cr. P.C. perhaps to try his luck before the new Bench. This application was directed to be listed before the same bench who had decided the first application (Chitre, J.) The matter was placed before Chitre (J) who directed Registrar to follow general roaster. The Registrar treating the second application as bail application listed it before Chitre (J) leading to passing of order dated 16-10-1998 holding that the application was for suspension of sentence and could not be disintegrated from main appeal. This order suggested that application was to be listed before Criminal Roaster Bench. Caught between two fires, Registrar referred the matter to Lord Chief Justice resulting in present reference.

(3.) We were taken from pillar to post in search of an answer. Our attention was also drawn to Supreme Court judgment in Shahzad Hassan Khan's case, AIR 1987 SC 1613 : (1997 Cri LJ 1872) and Full Bench judgment of this Court in 1993 MPLJ (I) (sic) observing that it was a rule of convenience based on judicial discipline that all subsequent bail applications should be placed before the same Bench/Judge who dealt with the first application. But we are not impressed. Not that we want to break loose or that we fail to grasp the rationale of observations made in these judgments. We only wish to make it clear that observations in these judgments required to be read in their particular context and it cannot be said that these judgments laid down an abstract rule that all subsequent bail applications had to be listed before the same Judge/Bench who had dealt with first bail application. Therefore, as on today there is no law or precedent which prescribes that a subsequent bail application was to be posted before the same Judge/Bench who handled the first application. Nor could there be one because it would just, be not be workable in the present day functioning where Roaster was controlled by Lord Chief Justice and was changeable at the drop of hat. No Bench was sure what it would be handling tomorrow, nor could it deal with a subject which was not assigned to it in roaster.