Is 3rd Judge Hearing Criminal Appeal After Split Verdict Bound By Views Of Previous Bench? Supreme Court Refers To Larger Bench

The Supreme Court has referred to a larger Bench an important question concerning the powers of a third judge hearing a criminal appeal under Section 392 of the Code of Criminal Procedure, 1973, after expressing reservations about the correctness of its earlier ruling in Sajjan Singh v. State of Madhya Pradesh (1999) 1 SCC 315.

The Court has referred to the larger Bench the question whether a third judge hearing a criminal appeal under Section 392 of the Code of Criminal Procedure, 1973, can overturn findings on which the two judges of a Division Bench had unanimously agreed while resolving a difference of opinion in the case.

As per Section 392 CrPC, if two judges of a division bench hearing a criminal appeal disagree on the outcome, the matter will be referred to a third judge.

A Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma observed that the decision in Sajjan Singh (1999), which held that a third judge can independently examine the entire appeal and is not bound even by conclusions unanimously reached by the original Division Bench, may require reconsideration.

The reference arose from appeals challenging an Allahabad High Court judgment that acquitted brothers Anil, Ajay and Atul Rastogi in a 1991 murder case.

The trial court had convicted the siblings under Sections 302/149 and 148 of the Indian Penal Code and sentenced them to life imprisonment. When their appeal came up before a Division Bench of the Allahabad High Court, both judges agreed that Anil and Ajay's convictions should be upheld. However, they differed on Atul's conviction. Justice Bhanwar Singh favoured acquitting Atul, while Justice Devi Prasad Singh held that all three appellants were guilty.

The matter was then referred to a third judge under Section 392 CrPC. The third judge not only agreed that Atul should be acquitted but also reversed the concurrent findings against Anil and Ajay and acquitted them as well. This led the complainant and the State of Uttar Pradesh to approach the Supreme Court.

The Supreme Court framed three legal questions regarding the scope of Section 392, including whether a third judge can differ from conclusions unanimously reached by both judges of the Division Bench and whether such a judge should instead refer the matter to a larger Bench if inclined to disagree with concurrent findings.

Examining the statutory scheme, the Court noted a significant distinction between Section 429 of the old Code of Criminal Procedure, 1898, and Section 392 of the 1973 Code. While the former referred to "the case" being placed before another judge, Section 392 speaks of "an appeal" and subsequently "the appeal."

The Bench held that the expression "the appeal" in Section 392 refers back to the specific appeal in which a difference of opinion has arisen. It observed that where multiple convicts file a composite appeal, each convict's challenge remains, in substance, a separate appeal even though they are clubbed together procedurally.

According to the Court, since the two Allahabad High Court judges had unanimously dismissed the appeals of Anil and Ajay, there was no division of opinion regarding them. Consequently, only Atul's appeal should have been placed before the third judge. The Court reasoned that allowing a third judge to reopen unanimously decided issues merely because the convicts had filed a composite appeal could produce irrational and discriminatory outcomes.

The Bench observed that under the interpretation adopted in Sajjan Singh, a third judge could potentially reverse unanimous acquittals or convictions relating to parties in respect of whom no disagreement existed, solely because another appellant's case had generated a difference of opinion. Such consequences, it said, did not appear to have been contemplated in the earlier decision.

Expressing "respectful disagreement" with Sajjan Singh, the Court referred the question of whether that judgment lays down the correct law to a larger Bench to be constituted by the Chief Justice of India. The Bench reserved its answers to the substantive questions concerning the scope of a third judge's powers under Section 392 until the larger Bench decides the issue.

Headnote

Code of criminal procedure, 1973 – section 392 – scope of referee judge's jurisdiction in composite appeals – difference of opinion – Whether a third Judge, upon a reference under Section 392 CrPC due to a division of opinion regarding one co-accused, can reopen and examine the case of other co-accused whose convictions were unanimously upheld by the Division Bench – Supreme Court doubted the correctness of its two-judge bench decision in Sajjan Singh v. State of M.P. (1999) – Matter referred to a larger Bench - Statutory Interpretation of Section 392 CrPC – "An Appeal" vs "The Appeal" – The Supreme Court highlighted the significant linguistic shift from Section 429 of the 1898 Code (which used "the case") to Section 392 of the 1973 Code (which uses "an appeal" and "the appeal") - Highlighting the anaphoric use of the definite article, the Supreme Court observed that while the indefinite article "an appeal" triggers the provision for any appeal resulting in a divided opinion, the definite article "the appeal" limits the referee Judge's jurisdiction strictly to the specific instance or individual appeal where the division occurred - Merely because multiple convicts file a composite joint appeal, it cannot mean that a unanimous decision dismissing the appeal against some convicts can be reopened by the third Judge if the division of opinion relates only to another co-accused. [Relied Bhagat Ram v. State of Rajasthan, (1972) 2 SCC 466; Paras 29 – 32]

Anomalous and Irrational Consequences – The Supreme Court pointed out that a mechanical application of Sajjan Singh could lead to highly undesirable or discriminatory results under Article 14 - if a Division Bench unanimously decides to acquit two convicts but divides on the third, sending the entire composite appeal to a third Judge could put the unanimously acquitted persons at risk of conviction - in a State appeal against acquittal, it could risk the conviction of individuals whose acquittals were unanimously favoured by the Division Bench - Expressing its respectful disagreement with the coordinate bench ruling in Sajjan Singh v. State of Madhya Pradesh, (1999) 1 SCC 315, the Bench referred the question of whether Sajjan Singh lays down the correct law to a larger Bench to be constituted by the Hon'ble Chief Justice of India. [Paras 35-41]

Case Title: Dr. Rakesh Kumar Gupta v. State of Uttar Pradesh & Ors. and connected matter

Citation: 2026 LiveLaw (SC) 615

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