1. Rakesh Kumar Gupta and the State of Uttar Pradesh, in separate appeals, challenge the judgment and order dated 22nd March, 2018 of a learned Single Judge of the High Court of Judicature at Allahabad. While allowing the criminal appeal presented by the Rastogi brothers – Anil, Ajay and Atul (respondents 2 to 4 in the appeal of the complainant and respondents 1 to 3 in the appeal of the State), the learned Judge acquitted the siblings and set aside their conviction under Section 302 read with Section 149 of the Indian Penal Code, 1860 and the sentence of life imprisonment. The conviction of the siblings, under Section 148 IPC and imprisonment of two years, was also set aside.
2. Facts, as have unfolded, would present an interesting question to be answered by us. We shall formulate the question a little later after adverting to the basic undisputed facts.
Facts
3. The siblings were tried by the IInd Additional Sessions Judge, Lucknow, in a sessions triable case8 arising out of Case Crime No.120/1991 under Sections 148, 149, 302/149, IPC, registered at Police Station Wazirganj, Lucknow. The father of the siblings and one Giriraj Rastogi were the co-accused. The father died during the trial, leaving the other 4 (four) accused to face the trial. By his judgment dated 31st January, 2001, the Sessions Judge convicted the siblings for the charges noted above and on the same day, sentenced them to life imprisonment. However, co-accused Giriraj Rastogi was acquitted of all the charges.
4. Aggrieved by the conviction and sentence imposed upon them, the siblings carried the same in a composite appeal before the High Court under Section 374(2) of the Code of Criminal Procedure, 19739 . Such appeal was heard by a Division Bench [cor: Bhanwar Singh and Devi Prasad Singh, JJ]. Separate judgments dated 11th July, 2006 were pronounced by the Judges of the Division Bench. Bhanwar Singh, J. upheld the conviction of Anil and Ajay but acquitted Atul. Devi Prasad Singh, J. however, maintained the conviction of the siblings. The Judges comprising the Division Bench were, thus, divided in their opinion insofar as Atul is concerned and not Anil and Ajay. Upon such difference of opinion, by a separate order recorded on 11th July, 2006, the appeal was directed to be placed before a third Judge10 to be nominated. The referee Judge [Vikram Nath, J. (as His Lordship then was)] by the impugned judgment and order not only agreed with the opinion of Bhanwar Singh, J. that Atul ought to be acquitted and eventually acquitted him, His Lordship also proceeded to reverse the concurring opinion of Bhanwar Singh, J. and Devi Prasad Singh, J. (recorded in their separate judgments) convicting Anil and Ajay. It was held that based on the materials on record, the prosecution had failed to drive home the charges against Anil and Ajay. As a consequence, Anil and Ajay were also acquitted.
5. It is in these circumstances that the complainant and the State approached this Court with the separate special leave petitions under consideration, out of which these appeals arise. Permission, sought for by the complainant to file the special leave petition, was granted and notice issued by a coordinate Bench on 8th October, 2018. Notice on the State’s special leave petition was issued on 2nd August, 2019. We find from the record of proceedings that the special leave petitions had been listed before separate coordinate Benches on several occasions during the last 7 (seven) years but no effective hearing could take place till 2nd February, 2026, when we had the occasion to hear Mr. Mudit Sharma, learned counsel for the complainant, Mr. Sidharth Luthra, learned senior counsel for the siblings and Mr. Chandrika Mishra, learned counsel for the State.
Questions
8. The pure legal questions emerging from the scope and ambit of Section 392 of the 1973 Code, which we venture to answer, are:
(i) Whether, in view of a division of opinion between the two Judges of a Division Bench hearing an appeal under Chapter XXIX of the 1973 Code, the third Judge before whom the appeal is laid is obliged to deliver his opinion agreeing with either one of the two opinions or is such Judge empowered to give an opinion which is at divergence with the opinions penned by the two Judges who heard the appeal?
(ii) Whether the third Judge is obliged to render his opinion confined to the points of disagreement between the two Judges only, or that such Judge is competent and empowered in law to differ with the conclusions unanimously reached by both the Judges of the Division Bench and give his independent opinion which is at variance with such unanimous conclusion?
(iii) Whether the third Judge, upon the appeal being laid in terms of Section 392 of the 1973 Code, not bound by the unanimous conclusions of the two Judges of the Division Bench; if not, and in case of disagreement with the concurrent findings of the two Judges, should the third Judge not refer the appeal to be re-heard and decided by a larger Bench?
Analysis
Section 392 Cr.P.C – Third Judge role in disputed bench judgment
9. Answering the first question need not detain us for long. The options open for the referee Judge, when seized of a reference under section 392 of the 1973 Code are not too wide. If a Judge of a Bench of two-Judges, while hearing an appeal, is inclined to maintain a conviction while the other Judge is not so inclined, the third Judge may accept either opinion and it is the third Judge’s opinion that the statute requires to be placed before the Division Bench for rendering the final judgment. It could also happen, as in Krishna Pradhan (supra), that the third Judge declines to agree with the view of either the presiding Judge of the Bench (in maintaining the conviction but commuting death sentence to life imprisonment) or the view of the companion Judge on the Bench (acquitting the convict). If the third Judge is of the considered view, for the reasons assigned, that additional evidence is required to be received under Section 391 of the 1973 Code in the manner stipulated to rectify irregularity, not being an incurable defect going to the root of the case, before the conviction is either maintained or reversed, that is an available course of action in terms of the decision of this Court in Rambhau v. State of Maharashtra. It is noteworthy that the appeal in Krishna Pradhan (supra) was at the instance of a sole death row convict and not three convicts in a composite appeal; therefore, the said decision is not an authority providing adequate guidance for answering the second and the third questions [formulated in paragraph 8 (supra)] arising for decision.
10. Moving on to the said questions [(ii) and (iii)], what emerges is this. Of the multiple precedents cited and relied on by Mr. Luthra, majority of them were rendered either prior to the 1973 Code being enacted and made operational or may be even thereafter, but while considering the text of Section 429 of the 1898 Code. The phraseology used in Sections 429 and 392 is significantly different, which we propose to note immediately hereafter; and, therefore, we are of the opinion that all these precedents would have no application when a reference is being dealt under Section 392 of the 1973 Code. Of the 3 (three) decisions of the high courts, which we have noticed at an earlier part of this judgment, the latter two were delivered after the decision of this Court in Sajjan Singh (supra). The learned Single Judges of the relevant high courts (Chhattisgarh and Calcutta) were bound by what Sajjan Singh (supra) ruled and, therefore, the said decisions are not apposite for answering the relevant questions remaining to be answered. In the other decision, i.e., Nagen Das @ Baldai Das (supra), the Full Bench of the Gauhati High Court proceeded on the basis that there is no significant difference between Section 429 of the 1898 Code and Section 392 of the 1973 Code, sans the proviso. For the reasons to be assigned hereafter, it would be clear that such an observation made in Nagen Das (supra) is erroneous.
13. It would be appropriate at this stage to notice the law laid down in Sajjan Singh (supra), heavily relied on by Mr. Luthra as having laid down the law correctly upon due consideration of the precedents explaining the scope of Section 392 of the 1973 Code.
a. In Sajjan Singh (supra), eleven persons were tried for murder and related offences. The Trial Court acquitted one accused but convicted the remaining ten persons and sentenced them to life imprisonment. These convicted persons filed appeals before the High Court of Madhya Pradesh. The case was heard by two Judges of a Division Bench, but they differed in their views. Chitre, J. held that all ten convicted persons were guilty and their convictions should be upheld. Shukla, J. however, felt that only three of them were guilty and that the remaining seven should be acquitted. Because of this difference of opinion, the matter was referred to a third Judge under Section 392 of the 1973 Code. Prasad, J., the third Judge, opined in favour of acquittal of four convicts and upheld the conviction of the rest six, including the three persons whose conviction had already been upheld by both the Judges earlier. However, the third Judge did not independently examine the cases of those three convicts because he believed that he was bound by the unanimous opinion of the two Judges of the Division Bench. The convicts then approached the Supreme Court challenging this approach adopted by the third Judge.
b. This Court found the approach adopted by the third Judge to be erroneous. The Court observed that under Section 392 of the 1973 Code, it is ultimately the opinion of the third Judge that governs the matter and against the judgment flowing therefrom an appeal lies to the Supreme Court.
c. Paragraph 10 of the decision in Sajjan Singh (supra) has already been reproduced above.
14. The view expressed in Sajjan Singh (supra) fairly and squarely supports the proposition advanced by Mr. Luthra. Tested on the anvil of the ratio laid down in Sajjan Singh (supra), the referee Judge seems to be right in independently assessing the evidence on record and acquitting the siblings, notwithstanding the unanimous conclusions of Bhanwar Singh and Devi Prasad Singh, JJ. in relation to acceptance of the conviction and sentence recorded by the ASJ against Ajay and Anil. He may also seem to be justified in contending that Sajjan Singh (supra) has laid down the law more than quarter of a century back and having regard to the doctrine of stare decisis, its precedential value should be given due weight.
15. The referee Judge’s approach does find support from Sajjan Singh (supra). However, should Sajjan Singh (supra) not commend to us to lay down correct law, Anil and Ajay could prima facie lose the very foundation of their plea.
Joint appeal by several appellants/accused explained
18. We have read the 1973 Code and the rules framed by the High Court in relation to criminal appeals, which are governed by Chapter XXIX of the 1973 Code. Neither the 1973 Code nor the rules of the High Court bar a composite appeal being presented by several convicts or a composite appeal by the State challenging acquittal of more than one acquitted accused after a joint trial.
19. Reading the provisions of Section 374 of the 1973 Code invoked by the siblings together with the rules framed by the High Court, we are inclined to the view that multiple accused upon being tried by a Court of Sessions and upon being sentenced to imprisonment for more than 7 years, if they so choose, may appeal to the High Court jointly. In the absence of any bar precluding multiple convicts to join in one composite appeal, we presume, that the composite appeal came to be filed by the siblings and accepted by the Registry of the High Court.
20. However, we are of the opinion that though the siblings, in the present case, chose to jointly appeal to the High Court by presenting a composite appeal, in effect, there were three appeals before the High Court by the siblings rolled up in one memorandum of appeal giving rise to registration of a single criminal appeal.
24. Bhanwar Singh and Devi Prasad Singh, JJ. having concurred with the ASJ insofar as the conviction and sentence under challenge at the instance of Anil and Ajay are concerned and in light of the observations made by them in their respective judgments, extracted supra, it admits of no doubt that the conviction and sentence under challenge were confirmed and the appeals at the instance of Ajay and Anil stood dismissed without any disagreement.
25. However, Bhanwar Singh and Devi Prasad Singh, JJ. having differed in respect of the conviction of Atul recorded by the ASJ, no final judgment in relation thereto could have been or was pronounced. The differing views on Atul’s conviction (recorded by the ASJ) expressed by both Bhanwar Singh, J. and Devi Prasad Singh, J. were their opinions, and not judgments, and in such circumstances the Judges had rightly referred to the third Judge for his opinion as to the further course of action in relation to Atul’s conviction as per the legal and statutory obligation engrafted in Section 392 of the 1973 Code.
26. The direction given by the Judges of the Division Bench has been noted in one of the preceding paragraphs. What we perceive, on a careful reading of the order of reference, is that it was only the appeal of Atul which was directed to be placed before the third Judge and not the appeals of Ajay and Anil, notwithstanding that instead of individual appeals by the siblings there was only one composite appeal which came to be filed jointly by them, was registered and assigned a single number.
27. We reiterate, on a conspectus of the facts and circumstances discussed above leading to the referee Judge assuming jurisdiction, that though there was a composite appeal presented by the siblings, in law, the siblings had individually appealed to the High Court exercising their right of appeal taking the aid of Section 374(2) of the 1973 Code. In view of the separate but unanimous judgments rendered by Bhanwar Singh, J. and Devi Prasad Singh, J. dealing with the appeals of Ajay and Anil, the inevitable and irresistible conclusion is that their appeals were dismissed. There being no division of opinion, the appeals of Ajay and Anil could not and should not have been placed before the third Judge. Since, however, there remained a division of opinion regarding the appeal of Atul, only such appeal should have been placed before the third Judge.
‘an appeal’ followed by ‘the appeal’ are same within the meaning of the sections 392, 374 and 378 as if ‘any proceeding” followed by ‘the proceeding’ in Section 397 thereof
29. First, we observe that the difference in phraseology of Section 429 of the 1898 Code and section 392 of the 1973 Code is significant. While Section 429 dealt with “the case”, Section 392 opens with “an appeal” and it is closely followed by “the appeal”. How does one construe “an appeal” and “the appeal” in Section 392 of the 1973 Code?
30. At this stage, adverting to a bit of English grammar is considered inevitable. “A”, “an” and “the” are all articles. While “a” and “an” are indefinite36 (also called indeterminate) articles, “the” is the definite article. It is not unusual to find “a”/”an” and “the” in one sentence. Legislatures are prone to use “a”/”an” for the first mention to trigger the provision. Then, “the” is used anaphorically to refer back to that same thing. It prevents ambiguity and limits the later clause to the instance already introduced. This is, in our opinion, also a basic statutory construction: the indefinite article sets up the class, the definite article picks out the individual instance from that class.
31. In the context of “an appeal” in Section 392, the words refer to “an appeal” that fits the situation described whereas “the appeal” is referable to the same appeal just spoken of. Thus, “an appeal” which opens the scope applies to any appeal under Chapter XXIX that is heard by a Bench and results in a divided opinion and “the appeal” narrows to the specific appeal where such division has occurred. The words “the appeal”, thus, have to be read as referring back to “an appeal”.
32. In plain terms, “an appeal” means any appeal filed by a convict or the State that is heard by a Division Bench and results in the Judges either agreeing or disagreeing, whereas “the appeal” refers to that particular appeal in which the disagreement has occurred.
33. There are other provisions in the 1973 Code which use “an appeal” followed by “the appeal”, viz. Sections 374 and 378. Similarly, one finds “any proceeding” followed by “the proceeding” in Section 397 thereof.
Sajjan Singh case is not an authority to decide ‘an appeal’ vis-à-vis ‘the appeal’
34. Sajjan Singh (supra), in our humble opinion, is not an authority on the construction of “an appeal” vis-à-vis “the appeal” found in Section 392. This Court did not advert to the anaphoric use of the definite article. The judgment is, therefore, distinguishable on the point of statutory interpretation.
35. Further, what does not escape our attention is the fortuitous circumstance of filing of a composite appeal by the siblings. Supposing that instead of a composite appeal, the siblings had filed three separate appeals against the common judgment of conviction recorded by the ASJ and the appeals of Ajay and Anil were dismissed either by a common judgment or separate judgments of the Judges comprising the Division Bench. The fate of Ajay and Anil would be sealed, unless they successfully invoke the jurisdiction of this Court under Article 136 of the Constitution. However, had the Judges while dismissing the appeals of Ajay and Anil then proceeded to record individual opinions in respect of Atul and such opinions were divergent, it is only the appeal of Atul that would call for a reference to the third Judge in terms of Section 392 of the 1973 Code and not the unanimous dismissal of the appeals of Ajay and Anil. Can any litigant take advantage of a fortuitous circumstance like this? Would the approach not result in derivation of an advantage by those filing a composite appeal on the one hand and disadvantage for those convicts who choose to file separate appeals and not a composite appeal? Is it not discrimination, breaching Article 14 of the Constitution? Our research does not reveal any authoritative decision of this Court on the point and, therefore, the need is felt for a deeper study of the issues.
36. Additionally, accepting the reasoning in Sajjan Singh (supra) could work out irrational, anomalous and undesirable results. Take for instance a case where a composite appeal under Section 374(2) of the 1973 Code is filed by 3 (three) convicts. There is no difference of opinion between the two Judges of the Division Bench that two of the appellants have been erroneously convicted and that acquittal should be and is ordered. But there is a difference of opinion with regard to the third convict. One Judge is of the opinion that the said appellant has been correctly convicted while the other Judge is of the opinion that he too ought to be acquitted. If the appeals of all the three convicted appellants are placed before the third Judge consequent upon division of opinion only in respect of one convict, all three would run the risk of being convicted by the third Judge notwithstanding that in respect of two of the convicted appellants, the Judges are ad idem that they are entitled to be acquitted. This, effectively, would result in the third Judge reversing the unanimous acquittal recorded by two Judges of a Division Bench of the same high court. This situation, in our view, does not appear to have been visualised by the coordinate Bench in Sajjan Singh (supra).
37. Or, take a converse case. There is a composite appeal by the State challenging the acquittal of three accused persons under Section 378 of the 1973 Code. After grant of leave to appeal, there is no difference of opinion between the two Judges that two of the accused have been correctly acquitted. But there is a difference of opinion with regard to the third acquitted accused. While one of the Judges favours upholding of the acquittal, the other Judge is in favour of reversing the acquittal and ordering his conviction. Following Sajjan Singh (supra), all three acquitted accused could end up in conviction being recorded against them. This is also a situation which ought to have been visualized.
39. Moreover, one other significant aspect requires mention. It is not too clear as to whether the complainant was a party to the appeals dealt with by this Court by the order dated 18th March, 2015; if not, it is not binding on him.
Conclusion
40. Finally, what remains is the question of judicial discipline, propriety and comity. A mechanical application of the law laid down in Sajjan Singh (supra) would render these integral components of a just and fair criminal justice delivery system redundant.
Differing Sajjan Singh case as not a good law and refer the case to larger bench
41. Thus, while recording our respectful disagreement with the view expressed in Sajjan Singh (supra), we refer the question as to whether Sajjan Singh (supra) lays down correct law for decision to a larger Bench of such strength, as the Hon’ble the Chief Justice may constitute. However, we prefer to reserve our answers to the questions [(ii) and (iii)] formulated in paragraph 8 (supra).
42. These appeals may be laid before an appropriate Bench for pronouncing the final judgment thereon, after the larger Bench delivers its opinion.
Resources
Judgments
Sajjan Singh v. State of M.P. | (1999) 1 SCC 315
Sarat Chandra Mitra v. Emperor | ILR (1911) 38 Cal 202
Subedar & Ors. v. The State | AIR 1957 All 396
Babu & Ors. v. State of U.P. | AIR 1965 SC 1467
Hethuba @ Jithuba Madhuba & Ors. v. State of Gujarat | (1970) 1 SCC 720
Bhagat Ram v. State of Rajasthan | (1972) 2 SCC 466
State of U.P. v. Dan Singh & Ors. | (1997) 3 SCC 747
State of A.P. v. P.T. Appaiah | (1980) 4 SCC 316
Union of India v. B.N. Ananti Padmanabiah | (1971) 3 SCC 278
Nemai Mondal v. State of W.B. | AIR 1966 Cal 194
Ahmad Sher v. Emperor | AIR 1931 Lah 513
Nagen Das @ Baldai Das v. State of Assam | (2004) 2 GLR 267
Rambhau v. State of Maharashtra | Civil Appeal No. 2730 of 1986
State of Chhattisgarh v. Shankar Haldhar | Referenced by the Supreme Court from the High Court of Chhattisgarh
Krishna Pradhan v. State of West Bengal | Referenced by the Supreme Court from the High Court of Calcutta
Grenade Venkata Ratnam v. Emperor | Referenced by the Supreme Court from the High Court of Madras/Calcutta
primary Acts and Sections
- Code of Criminal Procedure, 1973 (CrPC)
- Section 392: This is the central provision under scrutiny in the judgment. The Court examined the scope of a third (referee) judge’s power when a Division Bench delivers a split verdict, specifically whether the third judge can revisit unanimous findings or must restrict their opinion strictly to the points of disagreement.
- Section 374(2): Invoked regarding the original composite appeal filed by the accused before the High Court against their conviction by the Sessions Judge.
- Indian Penal Code, 1860 (IPC)
- Section 148: Rioting, armed with a deadly weapon.
- Section 149: Every member of unlawful assembly guilty of an offence committed in prosecution of common object.
- Section 302: Punishment for murder (read with Section 149).
- Code of Criminal Procedure, 1898
- Section 429: Discussed extensively by the Bench to trace the historical development, legislative intent, and statutory shift in language that led to the current Section 392 of the 1973 Code.
Party
Dr. Rakesh Kumar Gupta vs. State of Uttar Pradesh & Ors - Criminal Appeal No. 2372 of 2026 and Criminal Appeal No. 2373 of 2026 (along with a connected appeal) - 2026 INSC 632 - June 9, 2026 – Hon’ble Mr. Justice Dipankar Datta and Hon’ble Mr. Justice Satish Chandra Sharma.
