The Supreme Court has referred to a larger Bench an important question concerning the scope of powers exercised by a third judge hearing a criminal appeal under Section 392 of the Code of Criminal Procedure (CrPC), 1973, after expressing doubts about the correctness of its earlier decision in Sajjan Singh vs State of Madhya Pradesh in 1999.
The Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma observed on Tuesday that the legal position laid down in Sajjan Singh, which permits a third judge to independently examine the entire appeal and even depart from conclusions unanimously reached by the original Division Bench, may require reconsideration.
The reference arose from appeals challenging a judgment of the Allahabad High Court in a 1991 murder case involving brothers Anil Rastogi, Ajay Rastogi and Atul Rastogi. The trial court had convicted all three accused under Section 302, read with Sections 149 and 148 of the Indian Penal Code (IPC), and sentenced them to life imprisonment.
When the criminal appeals came up before a Division Bench of the High Court, both judges concurred that the convictions of Anil and Ajay should be affirmed. However, they differed regarding the culpability of Atul. Justice Bhanwar Singh was of the view that Atul deserved acquittal, whereas Justice Devi Prasad Singh held that all three accused were guilty and their convictions ought to be maintained.
In view of the split verdict, the matter was placed before a third judge under Section 392 CrPC. The third judge not only agreed that Atul should be acquitted but also overturned the concurrent findings against Anil and Ajay and acquitted them as well. Aggrieved by this outcome, the complainant and the State of Uttar Pradesh approached the Supreme Court.
While examining the matter, the Supreme Court framed three substantial questions of law concerning the interpretation of Section 392 CrPC. One of the principal issues was whether a third judge could reopen and reverse findings on which both judges of the original Division Bench had unanimously agreed. The Court also considered whether, in such circumstances, a third judge should instead refer the matter to a larger Bench, if inclined to disagree with conclusions already unanimously reached.
The Bench undertook a detailed analysis of the statutory framework and noted a significant distinction between Section 429 of the Code of Criminal Procedure, 1898, and Section 392 of the 1973 Code. It observed that while the earlier provision referred to the case being placed before another judge, Section 392 repeatedly uses the expression appeal.
According to the Court, the expression appeal under Section 392 refers specifically to the appeal in respect of which a difference of opinion has arisen. The Bench further observed that even when multiple accused file a composite appeal arising out of the same judgment, each accused’s challenge is, in substance, a separate appeal despite being procedurally heard together.
Applying this reasoning to the present case, the Court observed that there was no divergence of opinion between the two Allahabad High Court judges regarding Anil and Ajay, since both judges had unanimously upheld their convictions. The difference of opinion existed only in relation to Atul. Therefore, prima facie, only Atul’s appeal ought to have been placed before the third judge.
The Supreme Court expressed concern that the interpretation adopted in Sajjan Singh could lead to anomalous and discriminatory consequences. It observed that under such an interpretation, a third judge could potentially reopen and reverse unanimous findings relating to parties in respect of whom no disagreement ever existed, merely because another appellant’s case generated a split verdict. The Bench noted that such consequences did not appear to have been contemplated by the legislature.
The Court further observed that accepting the broader interpretation would enable a third judge to interfere not only with unanimous convictions but also with unanimous acquittals, even where no conflict of judicial opinion existed. Such an approach, according to the Bench, raises serious concerns regarding the scope and purpose of Section 392 CrPC.
Expressing respectful disagreement with the legal principle laid down in Sajjan Singh, the Supreme Court held that the issue requires authoritative determination by a larger Bench. It has therefore referred the question of whether the 1999 judgment correctly interprets Section 392 CrPC to a larger Bench to be constituted by the Chief Justice of India.
Pending such determination, the Bench has kept open the substantive questions regarding the powers of a third judge in criminal appeals and deferred its final conclusions until the larger Bench settles the legal position.
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