The Supreme Court has placed a significant procedural question before a larger Bench: how far can a third judge go when called upon to resolve a split verdict in a criminal appeal?
At the heart of the reference lies the interpretation of Section 392 of the Code of Criminal Procedure, 1973, which comes into play when two judges hearing a criminal appeal differ in their conclusions. In such situations, the matter is referred to a third judge. The controversy now is whether that third judge is confined to the specific point of disagreement or can revisit and overturn findings on which the original judges had been in complete agreement.
A Bench comprising Justices Dipankar Datta and Satish Chandra Sharma expressed doubts about the correctness of a 1999 ruling in Sajjan Singh v. State of Madhya Pradesh, which had held that the third judge is free to independently examine the entire appeal and is not restricted by conclusions unanimously reached by the original Division Bench.
The issue surfaced in appeals arising from a 1991 murder case involving brothers Anil, Ajay and Atul Rastogi. A trial court had convicted all three under provisions of the Indian Penal Code and sentenced them to life imprisonment.
When the matter reached the Allahabad High Court, the two judges hearing the appeal agreed that the convictions of Anil and Ajay should stand. However, they parted ways on Atul’s case. One judge favoured his acquittal, while the other concluded that all three accused were guilty.
The dispute over Atul’s conviction was then placed before a third judge under Section 392 CrPC. While examining the matter, the third judge not only acquitted Atul but also overturned the convictions of Anil and Ajay, despite there being no disagreement between the original judges regarding them.
That outcome prompted both the complainant and the State of Uttar Pradesh to challenge the decision before the Supreme Court.
While analysing the legal framework, the Supreme Court drew attention to the language used in the present Code compared to the earlier Code of Criminal Procedure, 1898. The Court noted that the old provision referred to “the case” being placed before another judge, whereas Section 392 of the 1973 Code repeatedly refers to “an appeal” and later “the appeal.”
According to the Bench, this distinction may not be accidental. It observed that even when multiple accused file a combined appeal, each appellant’s challenge effectively retains an independent character despite being heard together.
On that reasoning, the Court indicated that since there was no difference of opinion regarding Anil and Ajay, their appeals had effectively been decided by the Division Bench. Only the dispute concerning Atul remained unresolved and, therefore, only that aspect ought to have been considered by the third judge.
The judges cautioned that a broader interpretation could lead to unusual consequences. A third judge might end up revisiting findings that were never disputed, potentially altering convictions or acquittals affecting parties whose cases had already been unanimously decided. Such a result, the Bench observed, appears difficult to reconcile with the purpose of the provision.
Expressing respectful disagreement with the interpretation adopted in Sajjan Singh, the Court has referred the matter to a larger Bench to determine whether that precedent correctly states the law.
The Bench has deferred answering the wider questions concerning the powers of a third judge under Section 392 until the larger Bench settles the issue.
