An apex court bench of Justice Markandey Katju and Justice Gyan Sudha Misra said the matter may be placed before Chief Justice S.H. Kapadia so that it could be listed before another bench.
Madani, now in jail is facing charges of his alleged involvement in the 2008 serial explosions in Bangalore.
The two judges had strong divergence of on the question of granting bail to Madani. Justice Katju said there was no sufficient evidence to deny bail to Madani. He 
said Madani had made inflammatory speeches, which he should not have done in a secular country, but that alone is not sufficient to implicate him in the conspiracy of the Bangalore bomb blast case.
He also said that the fact that Madani was in telephonic conversation with other accused before and after the blast was not construe as an evidence to show him as the key player of the blast conspiracy.
On the other hand, Justice Misra said that there was sufficient evidence pointing to the involvement of Madani in the bomb blast and he was being implicated not just on the basis of the inflammatory speeches he made but his constant contact with the other accused.
“If Maudany has to be granted bail, then the entire criminal procedure court should be changed to say that an accused should not be arrested till he is convicted”, she said adding that “If you go by this that no person should ever be arrested unless there are convictions, then let us change the Criminal Procedure Code (Cr. PC)” .
Eight low-intensity explosions within a span of 30 minutes killed one woman and injured 15 persons in July 2008.
When senior counsel Tehmtan Rustomji Andhyarujina appearing for Karntaka government contended that there was record of telephonic contact between Maudany with other accused, Justice Katju asked him if conversation during those telephonic contacts were tapped.
Senior counsel Shanti Bhushan appearing for Madani said that if a member of bar (Supreme Court) is held for some criminal conspiracy then all those who had spoken to him at different point of time should be arrayed as accused.
At this Justice Katju said that even in the case of Binayak Sen, the three courts below found him guilty of sedition. Andhyarujina said that court should not give such analogy. “Let there be no such analogies”, said Andhyarujina.
When Justice Katju asked Andhyarujina to show which of the prosecution witness has named Maudany being involved in the conspiracy, the senior counsel (Andhyarujina) referred to the statement of one Majid given under Section 161 of Cr.PC.
At this Justice Katju said that statement under Section 161 of Cr.PC is not admissible as evidence as it is recorded by the police officer and does not bear the signature of the person who has made it during the course of investigation.
Justice Katju said that prosecution was relying on the statement of Majid who was already dead. Justice Katju said that he has pursued the entire case file and no where he has found any statement by any one implicating Madani in the conspiracy.