GOPAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE following two questions have been referred to this Bench :-

(2.) THE facts relevant for decision of the questions referred above are that the application under Section 389 (1), Cr. PC for suspension of sentence and grant of bail was rejected by a Division Bench of this Court on 17-4-1999. The two learned Judges who constituted the Bench are not available now as they have retired. Again three successive applications seeking the same relief were rejected by a Division Bench of which one of the members is available and the other has retired. Undaunted by earlier retreats two more applications were made one after the other and these were rejected by a Division Bench of which both the members are available. One of the Judges of this Division Bench was also a member of the Division Bench by which the application was rejected thrice as stated hereinbefore. On 20-8-2004 a direction was given by the latter Division Bench to list the fresh application claiming the same relief before "an appropriate Division Bench". It was then listed before a Division Bench as per current roster. This Division Bench was in a "dilemma" whether it can entertain such application when the Judges or one of the Judges who Constituted the earlier Division Benches to deal with the application are available and therefore the matter was referred to Hon'ble the Chief Justice who by his order dated 14-9-2004 has constituted the Full Bench to answer the questions referred above.

(3.) WE have heard the learned Counsel for the appellants and the Additional Advocate General on behalf of the State. We requested Shri S. C. Datt, Senior Advocate to assist as amicus curiae in deciding the procedural tangle. We have heard him also.