New Delhi: The Supreme Court has referred to a larger Bench the question of whether a third judge hearing a criminal appeal under Section 392 CrPC can overturn findings on which the two judges of the original Division Bench were completely unanimous. The Court also expressed serious doubts about the correctness of its earlier decision in Sajjan Singh v. State of Madhya Pradesh (1999) 1 SCC 315.
A Bench comprising Justices Dipankar Datta and Satish Chandra Sharma delivered the judgment in two connected criminal appeals filed by the complainant, Dr. Rakesh Kumar Gupta, and the State of Uttar Pradesh. The appeals challenged a 2018 Allahabad High Court order where the third judge under Section 392 CrPC had not only resolved the difference between two judges but also overturned their unanimous decision upholding the murder conviction of two accused brothers, Anil and Ajay Rastogi.
The case originated from a 1991 murder case registered against the Rastogi family at Police Station Wazirganj, Lucknow. After trial, the Sessions Court convicted Anil, Ajay, and Atul Rastogi under Sections 302/149 and 148 IPC and sentenced them to life imprisonment. Their father died during the trial, while another accused, Giriraj Rastogi, was acquitted.
The accused challenged the conviction before the Allahabad High Court. In 2006, the Division Bench agreed that Anil and Ajay’s convictions should be upheld but differed on Atul’s case, with one judge acquitting him and the other maintaining his conviction. Due to this difference, the matter was referred to a third judge under Section 392 CrPC. The third judge, however, proceeded to acquit all three accused, including Anil and Ajay, even though both judges of the original Division Bench had concurred on their guilt.
The principal issue before the Supreme Court was whether the decision in Sajjan Singh v. State of Madhya Pradesh correctly interpreted Section 392 CrPC by allowing a third judge to independently reconsider the entire case, even where the two judges of the Division Bench had reached a unanimous conclusion on certain issues.
The complainant argued that the third judge’s power under Section 392 is limited and must be exercised within a structured judicial framework, requiring reconsideration of Sajjan Singh. On the other hand, counsel for the accused defended the ruling, arguing that it was consistent with the statutory language and earlier precedents, including decisions under the erstwhile Section 429 of the Code of Criminal Procedure, 1898.
The Supreme Court observed that although Sajjan Singh supported the third judge’s approach in the present case, there were serious doubts about its correctness. The Court highlighted the difference between Section 429 of the old CrPC, which referred to placing “the case” before a third judge, and Section 392 of the 1973 CrPC, which refers to placing “the appeal” before another judge.
Interpreting the language of Section 392, the Court noted that the reference should apply only to the appeal in which a disagreement actually arose. Since the Division Bench had unanimously upheld the convictions of Anil and Ajay, only Atul’s appeal—in which the judges differed—ought to have been referred to the third judge. The third judge, therefore, could not have reopened the concluded findings relating to Anil and Ajay.
The Bench further held that Sajjan Singh had not considered the anaphoric use of the definite article “the appeal” in Section 392 CrPC and was therefore distinguishable on the issue of statutory interpretation.
The Court also raised a serious Article 14 concern. It observed that accepting the view in Sajjan Singh would mean that accused persons filing a composite appeal get a wider opportunity of challenge before the third judge than those filing separate appeals, merely due to a procedural circumstance.
The Court highlighted two possible anomalous situations. First, a third judge could reverse the unanimous acquittal of two accused persons merely because there was a disagreement concerning a third accused. Second, in a State appeal, a third judge could convict all accused persons even when the Division Bench had differed only regarding one of them.
Recording its respectful disagreement with Sajjan Singh, the Court referred the questions of law to a larger Bench of such strength as the Chief Justice of India may constitute and directed that the present appeals await the outcome of that reference before the final judgment is pronounced.
Case: Dr. Rakesh Kumar Gupta v. State of Uttar Pradesh & Ors. and State of Uttar Pradesh v. Anil Rastogi & Ors. (Criminal Appeal Nos. 2372-2373 of 2026) (2026 INSC 632)
