In a couple of appeals filed before the Supreme Court to challenge a judgment and order dated 22-03-2018 by a Single Judge of the Allahabad High Court, whereby a composite criminal appeal presented by the Rastogi brothers (respondents) was allowed, acquitting them and setting aside their conviction under Section 302 read with Section 149 of the Indian penal Code, 1860 (IPC) as well as the sentence of life imprisonment, a Bench comprising Justice Dipankar Datta and Justice Satish Chandra Sharma recorded their disagreement with the view expressed in Sajjan Singh v . State of Madhya Pradesh (1999) 1 SCC 315 and referred the question of whether the said decision laid down the correct law to a larger bench, while reserving their answers to the legal questions.
The brothers, their father, and a co-accused person were tried by the Additional Sessions Judge II, Lucknow. The father died during the trial, and the co-accused person was ultimately acquitted of all charges. However, on 31-01-2001, the ASJ convicted the siblings under Sections 148, 149, and 302 read with Section 149 of the IPC, sentencing them to life imprisonment for murder and two years of imprisonment under Section 148 IPC.
Aggrieved, the brothers filed a composite appeal before the High Court under Section 374(2) of the Code of Criminal Procedure, 1973 (CrPC), which was heard by a Division Bench of Justice Bhanwar Singh and Justice Devi Prasad Singh. They delivered separate judgments on 11-07-2006, whereby Justice Bhanwar Singh upheld the convictions and sentences of Anil and Ajay but acquitted Atul. However, Justice Devi Prasad Singh maintained the conviction and life imprisonment sentences for all three brothers. Since the Judges were divided in their opinion solely regarding Atul, they recorded a separate order directing the appeal to be placed before a nominated third Judge (the referee Judge) as provided under Section 392 CrPC.
The referee Judge agreed with Justice Bhanwar Singh that Atul ought to be acquitted. However, the referee Judge also proceeded to reverse the concurring, unanimous opinions of the Division Bench regarding the two other brothers. The referee Judge considered the material on record and held that the prosecution failed to drive home the charges against Anil and Ajay, subsequently acquitting them as well.
The complainant (appellant), contended that the delivery of a third Judge’s opinion is a substantive statutory obligation under Section 392 CrPC, which mandates a two-stage process where an independent opinion must precede the final judgment. It was argued that the power of the third Judge is restricted by judicial propriety.
The Court formulated three pure legal questions regarding the scope and ambit of Section 392 CrPC:
1. Whether the third Judge is obliged to deliver an opinion agreeing with either one of the split opinions, or is empowered to give an entirely divergent opinion.
2. Whether the third Judge’s opinion must be strictly confined to the points of disagreement, or if the Judge is legally competent to differ with the conclusions unanimously reached by both Judges of the Division Bench.
3. Whether the third Judge, if not bound by the unanimous conclusions of the Division Bench, should refer the appeal to be re-heard and decided by a larger Bench of Judges in the event of a disagreement with those concurrent findings.
Regarding the first issue, the Court noted that a referee Judge under Section 392 CrPC could accept either opinion, or take intermediate courses of action like receiving additional evidence under Section 391 CrPC if required.
However, regarding the second and third questions, the Bench highlighted a significant textual shift between Section 429 of the 1898 Code, which referred to “the case”, and Section 392 of the 1973 Code, which uses “an appeal” and “the appeal”. Through grammatical and statutory construction, the Court explained that the indefinite article “an appeal” sets up the broad class, while the definite article “the appeal” anaphorically narrows the scope back to the specific instance where the disagreement occurred. Considering the decision in Nagen Das v. State of Assam (1997 SCC OnLine Gau 73) where a Full Bench of the Gauhati High Court proceeded on the basis that there was no significant difference between Section 429 of the 1898 Code and Section 392 of the 1973 Code, the Court held that such an observation was erroneous.
The Court opined that multiple accused, upon being tried by a Court of Sessions and upon being sentenced to imprisonment for more than 7 years, may appeal to the High Court jointly. It was further said that although the brothers presented a joint, composite memorandum of appeal, in effect, there were three individual appeals rolled into one registration. Since Justice Bhanwar Singh and Justice Devi Prasad Singh unanimously dismissed the appeals of Anil and Ajay, their convictions stood confirmed without any internal disagreement. After careful perusal of the subject order, the Court perceived that it was only Atul’s appeal which was directed to be placed before the third judge and not the appeals of Ajay and Anil. It was said that though there was a composite appeal presented by the brothers, in law, they had individually appealed to the High Court exercising their right of appeal taking aid of Section 374(2) of CrPC. The Court held that since there was no division of opinion for Ajay and Anil, their appeals could not and should not have been placed before the referee judge.
Further, the Court opined that Sajjan Singh (supra) is not an authority on the construction of “an appeal” vis-a-vis “the appeal” found in Section 392 and stated that the judgment was distinguishable on the point of statutory interpretation. The Court pointed out that accepting the reasoning in Sajjan Singh could produce highly irrational, anomalous, and discriminatory results. The Court delved into examples such as a composite appeal where two out of three convicts are unanimously acquitted by a Division Bench, a referee judge reviewing the single split convict’s file would inadvertently place the two acquitted individuals at risk of being re-convicted and similarly, the State’s cross-appeals against acquittals could face unfair reversals.
The Court found it significant to mention that it was unclear as to whether the complainant was a party to the appeals dealt with by this Court by the order dated 18-03-2015, if not, it was not binding upon him.
Talking about principles of judicial discipline, propriety, and comity, the Court found that a mechanical application of Sajjan Singh (supra) would render these integral components redundant. Hence, the Court expressed its disagreement and referred the question of whether Sajjan Singh (supra) lays down the correct law for decision to a larger bench of the strength that the Chief Justice may constitute. The Bench reserved its final answers to the second and third questions while ordering the appeals to be laid before an appropriate Bench for final disposal only after the larger bench delivers its opinion.
