The Supreme Court has referred to a larger Bench an important question concerning the third judge powers under Section 392 CrPC. The Court will examine whether its ruling in Sajjan Singh v. State of Madhya Pradesh correctly interprets Section 392 of the Code of Criminal Procedure, 1973. The key issue is whether a third judge can revisit issues on which two judges of a Division Bench have already reached a unanimous conclusion.
Background of the Case
A Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma passed the order in Dr. Rakesh Kumar Gupta v. State of Uttar Pradesh & Ors. and the connected appeal State of Uttar Pradesh v. Anil Rastogi & Ors. The judgment was delivered on June 9, 2026.
The appeals challenged a March 22, 2018 judgment of the Allahabad High Court. A Single Judge acquitted Anil Rastogi, Ajay Rastogi and Atul Rastogi of offences under Sections 302 read with 149 and 148 IPC and set aside their convictions.
The prosecution arose from Sessions Trial No. 527 of 1993 linked to Case Crime No. 120 of 1991 registered at Police Station Wazirganj, Lucknow. The accused included the three Rastogi brothers, their father and Giriraj Rastogi. During the trial, their father passed away.
On January 31, 2001, the trial court convicted Anil, Ajay and Atul Rastogi under Sections 302/149 and 148 IPC and sentenced them to life imprisonment. The court acquitted Giriraj Rastogi.
Division Bench Split on Atul Rastogi
The convicted brothers filed a joint appeal under Section 374(2) CrPC before the Allahabad High Court.
Justice Bhanwar Singh upheld the convictions of Anil and Ajay but acquitted Atul. Justice Devi Prasad Singh upheld the convictions of all three appellants. Since the judges differed only on Atul’s case, they referred the matter to a third judge under Section 392 CrPC.
Justice Vikram Nath, as His Lordship then was, agreed that Atul deserved acquittal. He also reversed the concurrent findings against Anil and Ajay and acquitted all three brothers. The complainant and the State of Uttar Pradesh then approached the Supreme Court.
Arguments Before the Supreme Court
Advocate Mudit Sharma, appearing for the complainant, argued that Section 392 CrPC prescribes a structured process. He submitted that a third judge should first record an opinion before the Court delivers judgment. He further contended that the decision in Sajjan Singh wrongly allows a third judge to reopen issues on which both Division Bench judges agreed.
Senior Advocate Sidharth Luthra, representing the respondents, relied on several precedents interpreting Section 429 of the 1898 Code and Section 392 of the 1973 Code. He argued that settled law permits a third judge to independently examine the entire appeal rather than only the disputed issues.
Questions Framed by the Court
The Supreme Court framed three important legal questions.
- Whether a third judge is confined to the points of disagreement between two judges.
- Whether a third judge may depart from findings unanimously reached by both judges.
- Whether such disagreements should instead go before a larger Bench.
These questions directly concern the third judge powers under Section 392 CrPC.
Court’s Interpretation of Section 392
The Bench compared Section 429 of the 1898 Code with Section 392 of the 1973 Code. It observed that Parliament deliberately used different language in the two provisions.
While Section 429 referred to “the case,” Section 392 refers to “an appeal” and later “the appeal.” The Court noted that “an appeal” identifies the category of cases, while “the appeal” refers to the specific appeal in which judges disagree.
The Bench held that although the Rastogi brothers filed a composite appeal, each convict effectively pursued a separate appeal.
Since both judges unanimously upheld the convictions of Anil and Ajay, their appeals stood concluded. Only Atul’s appeal involved a difference of opinion.
Concerns Over Sajjan Singh
The Court observed that Anil’s and Ajay’s appeals should never have gone before the third judge because no disagreement existed regarding them.
The Bench questioned the correctness of Sajjan Singh v. State of Madhya Pradesh. It noted that the judgment failed to examine the distinction between the expressions “an appeal” and “the appeal” in Section 392 CrPC.
The Court warned that a broad interpretation could produce irrational results. A third judge could otherwise overturn unanimous convictions or acquittals simply because another appellant’s case generated a difference of opinion.
The Bench also observed that such an approach could undermine judicial discipline, propriety and institutional comity.
Reference to a Larger Bench
Expressing respectful disagreement with Sajjan Singh, the Supreme Court referred the issue to a larger Bench to be constituted by the Chief Justice of India.
The Bench declined to decide the substantive questions at this stage. It directed that the present appeals be listed before the appropriate Bench after the larger Bench settles the legal position.
