Home  > Recent Judgements  > IS A THIRD JUDGE IN A CRIMINAL APPEAL BOUND BY THE FINDINGS OF THE ORIGINAL BENCH? SUPREME COURT REFERS CRUCIAL QUESTION TO LARGER BENCH

Jun-03- 2026

IS A THIRD JUDGE IN A CRIMINAL APPEAL BOUND BY THE FINDINGS OF THE ORIGINAL BENCH? SUPREME COURT REFERS CRUCIAL QUESTION TO LARGER BENCH

Introduction

In a significant development concerning criminal appellate jurisprudence, the Supreme Court of India has referred an important question of law to a larger Bench regarding the powers of a third judge hearing a criminal appeal under Section 392 of the Code of Criminal Procedure, 1973 (CrPC).

The case, Dr. Rakesh Kumar Gupta v. State of Uttar Pradesh, raises a fundamental issue: Can a third judge, to whom a criminal appeal is referred after a split verdict, reopen and overturn findings on which the original two judges had unanimously agreed?

The referral assumes immense significance because it directly impacts the scope of judicial review available to a third judge and the finality of unanimous findings rendered by a Division Bench.

Background of the Case

The controversy originated from a murder case dating back to 1991 involving three brothers:

  • Anil Rastogi
  • Ajay Rastogi
  • Atul Rastogi

The trial court convicted all three accused under Sections 302/149 and 148 of the Indian Penal Code and sentenced them to life imprisonment.

The convicts challenged their conviction before the Allahabad High Court.

When the appeal came before a Division Bench, an interesting situation emerged.

Areas of Agreement

Both judges unanimously agreed that:

  • Anil Rastogi’s conviction should be upheld.
  • Ajay Rastogi’s conviction should be upheld.

Point of Disagreement

The judges differed only regarding Atul Rastogi:

  • Justice Bhanwar Singh held that Atul deserved acquittal.
  • Justice Devi Prasad Singh concluded that Atul was also guilty and should remain convicted.

Since there was a difference of opinion, the matter was referred to a third judge under Section 392 CrPC.

What Happened Before the Third Judge?

The third judge not only agreed that Atul should be acquitted but went considerably further.

The judge also:

  • Re-examined the findings relating to Anil and Ajay;
  • Disagreed with the unanimous conclusions of the original Division Bench;
  • Acquitted all three accused.

This triggered serious legal concerns.

The complainant and the State of Uttar Pradesh challenged the decision before the Supreme Court, arguing that the third judge exceeded the jurisdiction contemplated under Section 392 CrPC.

The Core Legal Issue

The dispute revolves around the interpretation of Section 392 CrPC.

The provision states that where judges hearing an appeal are divided in opinion, the appeal shall be laid before another judge, and the opinion of the majority shall prevail.

The critical question is:

“Does the third judge get unrestricted authority to reconsider the entire appeal?”

Or,

“Is the third judge confined only to the issue on which the original judges disagreed?”

The answer has substantial consequences for criminal justice administration across the country.

The 1999 Precedent: Sajjan Singh Case

The principal precedent governing the issue is:

Sajjan Singh v. State of Madhya Pradesh

In that case, the Supreme Court interpreted Section 392 broadly and held that:

  • The entire appeal stands referred to the third judge.
  • The third judge may independently examine the entire record.
  • The third judge is not restricted only to the point of disagreement.
  • Even findings unanimously reached by the original Division Bench may be reconsidered.

For more than two decades, this judgment has guided courts dealing with split verdicts in criminal appeals.

However, the present Bench expressed serious reservations regarding this interpretation.

Supreme Court’s Concerns with Sajjan Singh

The Bench comprising Justice Dipankar Datta and Justice Satish Chandra Sharma questioned whether the reasoning in Sajjan Singh adequately considered the language and structure of Section 392.

The Court highlighted several difficulties.

  1. Possibility of Reopening Settled Findings

If the Sajjan Singh interpretation is accepted, a third judge could potentially revisit findings that both original judges unanimously agreed upon.

This creates uncertainty regarding issues already conclusively determined by the Division Bench.

  1. Risk of Arbitrary Outcomes

The Court observed that under such an interpretation:

  • A conviction unanimously upheld by two judges could later be overturned.
  • An acquittal unanimously granted by two judges could also be disturbed.

This could occur merely because some other aspect of the same appeal generated a difference of opinion.

The Bench considered such consequences potentially irrational and inconsistent with judicial discipline.

Difference Between the 1898 Code and the 1973 Code

One of the most important aspects of the judgment is its detailed examination of legislative language.

Section 429 of the Old CrPC (1898)

The earlier provision referred to:

“The case”

being placed before another judge.

Section 392 of the Current CrPC (1973)

The modern provision instead uses the expression:

“The appeal”

and later repeatedly refers to:

“The appeal.”

The Supreme Court noted that this linguistic shift may not be accidental.

The change suggests that Parliament intended a more structured mechanism regarding the scope of referral.

The Court indicated that this distinction may not have received sufficient consideration in Sajjan Singh.

Composite Appeals and Individual Rights

The Bench made another significant observation.

Frequently, multiple accused file a common or composite appeal.

Procedurally, such appeals may be heard together.

However, substantively:

  • Each accused possesses an independent right of appeal.
  • Each conviction must be assessed separately.
  • Each appellant’s liability remains individual.

According to the Court, even if appeals are clubbed together, they do not lose their separate legal identity.

Applying this reasoning to the present case:

  • Anil’s appeal had already been unanimously dismissed.
  • Ajay’s appeal had already been unanimously dismissed.
  • Only Atul’s appeal contained a point of difference.

Therefore, the Court suggested that only Atul’s appeal should arguably have gone before the third judge.

Questions Referred to the Larger Bench

Recognizing the far-reaching implications of the issue, the Supreme Court referred several questions for authoritative determination.

The principal questions include:

  1. Scope of Third Judge’s Jurisdiction

Can a third judge hearing an appeal under Section 392 CrPC disagree with findings unanimously recorded by both judges of the original Division Bench?

  1. Extent of Reconsideration

Is the third judge empowered to reopen the entire appeal, or is the judge restricted to the specific point on which disagreement arose?

  1. Procedure in Case of Disagreement

If the third judge is inclined to disagree with findings unanimously reached by the original judges, should the matter instead be referred to a larger Bench?

These questions will now be decided by a larger Bench of the Supreme Court.

Why This Reference Is Important

The issue extends far beyond the present case.

Impact on Criminal Appeals Nationwide –

The decision will determine:

  • The powers of third judges in split-verdict cases;
  • The finality of unanimous judicial findings;
  • The procedural rights of appellants and victims;
  • The consistency of appellate criminal jurisprudence.

Balancing Fairness and Finality –

Two competing principles are involved:

Fairness –

A broad interpretation allows a third judge to independently examine the entire case and correct possible errors.

Finality –

A narrower interpretation respects issues already conclusively determined by unanimous judicial agreement and prevents unnecessary reopening of settled findings.

The larger Bench must strike a balance between these competing considerations.

Constitutional and Jurisprudential Significance

The reference also touches upon broader principles of judicial functioning.

These include:

  • Finality of judicial decisions;
  • Scope of appellate review;
  • Judicial discipline within multi-judge benches;
  • Rights of accused persons;
  • Efficient administration of criminal justice.

The outcome may influence how courts interpret similar provisions involving differences of opinion in other judicial forums as well.

Conclusion

The Supreme Court’s decision to refer the matter to a larger Bench marks an important moment in the evolution of criminal appellate procedure in India. By questioning the correctness of the long-standing ruling in Sajjan Singh v. State of Madhya Pradesh, the Court has reopened a fundamental debate about the limits of a third judge’s authority under Section 392 CrPC.

At the heart of the controversy lies a simple yet profound question: Should a third judge be permitted to revisit findings that two judges have unanimously agreed upon, or should the judge’s role be confined only to resolving the specific point of disagreement?

The larger Bench’s eventual ruling will not only settle the interpretation of Section 392 CrPC but will also shape the balance between judicial finality and appellate scrutiny in criminal proceedings for years to come. For lawyers, judges, academicians, and litigants alike, this is a reference that warrants close attention, as its implications will resonate throughout India’s criminal justice system.