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The bench of justices Markandey Katju and Gyan Sudha Misra said it was referring the matter to the Chief Justice of India for constituting another bench in view of differences between judges on the issue. While Justice Katju appears to be in favour of granting bail to Madani, Justice Misra was strongly opposed to it in view of the serious allegations against the accused that impinges upon national security.
Madani is presently lodged in a Karnataka jail under judicial custody for his alleged involvement in the Bangalore serial bomb blast and similar incidents in Ahmedabad, Surat and Jaipur. He was recently acquitted in the Coimbatore serial blast case, in which several persons had died.
Madani's plea was heard for over one-and-a-half hour with the Karnataka government pleading that his release on bail could pose a serious threat to national security, as he was part of the jihadi element having connections with banned outfits like the Lashkar-e-Tayiba and Students Islamic Movement of India.
Justice Katju, heading the bench, opined that there did not appear to be sufficient material against Madani and, accordingly, there was nothing wrong in granting him bail. Justice Misra, however, took the view that details of the phone calls sufficiently pointed to Madani's alleged involvement in the blast.
Senior counsel Shanti Bhushan, appearing for Madani, argued that the accused was falsely implicated by the Karnataka government due to political and communal reasons as the accused, he said, was a powerful political and social leader of the Muslim community.
Justice Katju cited the apex court's earlier ruling which held that merely being a member of a banned organisation does not make one a terrorist and ineligible for bail.
Justice Misra reasoned what was being dealt by the court was a bail plea and the Karnataka government has placed sufficient material for its denial. She disagreed with the views of Justice Katju and Madani's counsel Shanti Bhushan that the Indian police machinery has a tendency to implicate innocent persons in criminal cases.
If that is the case we better change the CrPC that no person shall be arrested and put in jail until he or she is convicted, she observed. "You have to satisfy the conscience of this court that he is innocent despite sufficient material to prove his involvement in the blast. At least I have strong reservations against granting bail," Justice Misra said.
Senior counsel T R Andhyarujina also objected to Justice Katju's reference that the Supreme Court had granted bail to prominent civil rights activist Binayak Sen despite the sessions court and the Chhattisgarh high court dismissing his plea.
"Your lordship please don't say such things. Please do no have that analogy. The case of Binayak Sen is different. We are all proud of that decision. This case is different. The man has been accused of killing over 100 people. You cannot have comparison like that," the counsel argued.
Justice Katju also took the view that though the accused might be a 'jihadi' element, he reiterated that mere membership of a banned organisation does not make a person criminal unless there is instigation for violence by him.
But with Justice Misra sticking to her stand that bail cannot be granted to Madani, the bench decided to refer the matter to the CJI.