When A Division Bench Delivers A Split Verdict On Conviction, Can The Third Judge Reopen The Entire Criminal Appeal? Supreme Court Refers Issue To Larger bench.
Court’s Decision
The Supreme Court did not finally decide the guilt or innocence of the accused persons in this judgment. Instead, it referred an important legal question to a larger Bench:
Whether the judgment in Sajjan Singh v. State of Madhya Pradesh, which held that a third Judge under Section 392 CrPC can examine the entire criminal appeal independently, lays down the correct law.
The Court expressed respectful disagreement with the broad view taken in Sajjan Singh and held that the matter requires reconsideration by a larger Bench to be constituted by the Chief Justice of India.
The appeals will be placed before an appropriate Bench for final judgment only after the larger Bench gives its opinion.
Facts
The case arose from a murder trial relating to Case Crime No. 120/1991 registered at Police Station Wazirganj, Lucknow.
The accused included three brothers — Anil Rastogi, Ajay Rastogi and Atul Rastogi — along with their father and one Giriraj Rastogi. The father died during trial.
The Trial Court convicted the three brothers under:
- Section 302 read with Section 149 IPC
- Section 148 IPC
They were sentenced to life imprisonment for the murder charge and two years’ imprisonment under Section 148 IPC. Co-accused Giriraj Rastogi was acquitted.
The accused challenged the conviction before the Allahabad High Court.
A Division Bench of the High Court delivered separate opinions:
- Justice Bhanwar Singh upheld the conviction of Anil and Ajay, but acquitted Atul.
- Justice Devi Prasad Singh upheld the conviction of all three brothers.
Thus, there was a difference of opinion only regarding Atul Rastogi.
The matter was then placed before a third Judge under Section 392 CrPC. The third Judge not only acquitted Atul but also acquitted Anil and Ajay, even though both Judges of the Division Bench had agreed that Anil and Ajay were guilty.
This acquittal by the third Judge was challenged before the Supreme Court by the complainant and the State of Uttar Pradesh.
Issues
The Supreme Court framed three key legal questions:
- Whether a third Judge under Section 392 CrPC must agree with one of the two differing opinions, or whether the third Judge can give an entirely independent opinion.
- Whether the third Judge is confined only to the point of disagreement between the two Judges, or whether the third Judge can also reopen issues on which both Judges had agreed.
- Whether, if the third Judge disagrees with unanimous conclusions of the Division Bench, the matter should instead be referred to a larger Bench.
Petitioner’s Arguments
The complainant argued that the third Judge’s role under Section 392 CrPC is a serious statutory function and not an empty formality.
It was submitted that Section 392 contemplates a two-stage process:
First, the third Judge must deliver an opinion.
Second, the final judgment must follow that opinion.
The complainant contended that the third Judge could not freely reopen findings where both Judges of the Division Bench had already agreed.
It was also argued that the decision in Sajjan Singh v. State of Madhya Pradesh requires reconsideration because it gives very wide power to the third Judge to examine the entire case, even on points where there was no difference between the two Judges.
The complainant further submitted that the impugned High Court judgment was erroneous both on facts and law.
Respondents’ Arguments
The accused relied heavily on earlier decisions interpreting Section 429 of the old Code of Criminal Procedure, 1898 and Section 392 of the present Code of Criminal Procedure, 1973.
They argued that the third Judge is not confined only to the narrow point of disagreement.
According to them, once a criminal appeal is placed before the third Judge under Section 392 CrPC, the third Judge can examine the entire case independently.
They relied on precedents including:
- Hethuba v. State of Gujarat
- State of A.P. v. P.T. Appaiah
- Sajjan Singh v. State of Madhya Pradesh
- Nagen Das v. State of Assam
- State of Chhattisgarh v. Shankar Haldhar
- Krishna Pradhan v. State of West Bengal
The accused submitted that criminal cases cannot always be divided into neat issues like civil cases because findings on evidence, participation, common object and culpability are often interconnected.
They also relied on an earlier order of the Supreme Court dated 18 March 2015, by which Anil and Ajay were permitted to withdraw their appeals before the Supreme Court and argue the whole matter before the third Judge of the High Court.
Analysis
The Supreme Court first answered the limited question of whether the third Judge must agree with either of the two opinions.
The Court held that the third Judge is not necessarily bound to agree with one of the two opinions. In an appropriate case, the third Judge may take an independent course, including directing additional evidence under Section 391 CrPC.
However, the Court found serious difficulty with the broader proposition that the third Judge can reopen even those findings on which both Judges of the Division Bench had already agreed.
The Court emphasised the difference between Section 429 of the old CrPC and Section 392 of the present CrPC.
Section 429 of the old Code used the phrase “the case”.
Section 392 of the present Code uses the phrase “an appeal” and then “the appeal”.
The Court held that this change in language is significant.
According to the Court, “an appeal” means any appeal under Chapter XXIX CrPC, while “the appeal” refers to the specific appeal in which there is a division of opinion.
The Court reasoned that although the three brothers had filed one composite appeal, in law, it was effectively three individual appeals rolled into one memorandum.
Since both Judges of the Division Bench had agreed that the conviction of Anil and Ajay should be upheld, there was no division of opinion in their appeals.
The difference of opinion existed only regarding Atul Rastogi.
Therefore, according to the Supreme Court’s prima facie view, only Atul’s appeal should have been placed before the third Judge.
Precedent
The judgment discusses several precedents on the scope of a third Judge’s powers in criminal appeals.
The key precedent is Sajjan Singh v. State of Madhya Pradesh, where the Supreme Court had earlier held that the third Judge under Section 392 CrPC can examine the whole case independently and is not bound even by the unanimous part of the two opinions.
The present Bench noted that Sajjan Singh supports the accused persons’ argument and also supports the approach adopted by the third Judge of the High Court.
However, the Supreme Court expressed respectful disagreement with Sajjan Singh.
The Court held that Sajjan Singh did not examine the statutory distinction between “an appeal” and “the appeal” in Section 392 CrPC.
The Court also observed that several earlier decisions relied upon by the accused were based on Section 429 of the old CrPC, which used different language.
Reasoning
The Supreme Court gave important reasons for referring the matter to a larger Bench.
First, the Court held that the language of Section 392 CrPC is materially different from Section 429 of the old Code.
Second, the Court noted that if a composite appeal is treated differently from separate appeals, it may lead to unfair and irrational results.
For example, if three convicts file one composite appeal and two Judges agree to acquit two of them but differ only on the third, then allowing the third Judge to reopen the whole appeal could expose even the two unanimously acquitted persons to conviction again.
Similarly, if the State files a composite appeal against acquittal of three accused and both Judges agree that two were rightly acquitted but differ only on the third, a third Judge could end up convicting all three if the broad view in Sajjan Singh is applied mechanically.
The Court observed that such consequences appear irrational, anomalous and undesirable.
The Court also held that the earlier Supreme Court order dated 18 March 2015, which allowed withdrawal of appeals by Anil and Ajay and permitted them to argue before the third Judge, was only an obiter observation and not binding, especially since it was unclear whether the complainant was a party to that order.
Finally, the Court observed that judicial discipline, propriety and comity cannot be ignored while deciding the power of a third Judge under Section 392 CrPC.
Conclusion
The Supreme Court held that the legal position laid down in Sajjan Singh v. State of Madhya Pradesh requires reconsideration.
The Court did not overrule Sajjan Singh itself, because it was a coordinate Bench decision.
Instead, the Court referred the question to a larger Bench:
Whether Sajjan Singh lays down the correct law on the power of a third Judge under Section 392 CrPC.
The Court reserved its final answers on whether the third Judge can reopen unanimous findings of the Division Bench and whether such matters should go to a larger Bench.
The appeals will now be finally decided only after the larger Bench gives its opinion.
Implications
This judgment is significant because it directly affects criminal appeals where two High Court Judges differ in opinion.
The Supreme Court has raised an important concern: whether a third Judge can reopen the entire criminal appeal or only the part where there is disagreement.
The decision may have major consequences in cases involving multiple accused, composite criminal appeals and split verdicts in High Courts.
The judgment also highlights the risk of unfairness where accused persons filing one joint appeal may get a procedural advantage or disadvantage compared to accused persons filing separate appeals.
Until the larger Bench decides the issue, the law on the exact scope of a third Judge’s power under Section 392 CrPC remains open for authoritative determination.
RAW LAW TAKEAWAY
A third Judge under Section 392 CrPC may not automatically have power to reopen every part of a criminal appeal, especially where two Judges of the High Court have already agreed on the conviction or acquittal of some accused.
The Supreme Court has now referred the correctness of Sajjan Singh to a larger Bench, making this an important judgment on split verdicts, composite criminal appeals and the limits of third-Judge jurisdiction in criminal cases.
