Section 392 CrPC: Can a Third Judge Reopen Unanimously Decided Issues? Supreme Court Refers Question to Larger Bench

The Supreme Court recently referred the question of the scope of a third judge's powers to a larger bench while deciding an appeal under Section 392 of the Code of Criminal Procedure (CrPC) [now Section 433 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)].

The key issue before the court was whether a third judge, to whom a matter is referred because of a difference of opinion between two judges, can reopen issues that had already been unanimously decided by the original division bench.

A Bench of Justices Dipankar Datta and Satish Chandra Sharma referred the issue after expressing disagreement with the 1999 two-judge decision in Sajjan Singh v. State of Madhya Pradesh, holding that it is not an authority on the interpretation of the expressions "an appeal" and "the appeal" used in Section 392 CrPC.

"We refer the question as to whether Sajjan Singh lays down correct law for decision to a larger bench of such strength, as the Chief Justice of India may constitute," the Bench said.

Why did the Supreme Court refer the issue to a larger bench?

Court agreed with the Uttar Pradesh government's contention that the ruling in Sajjan Singh requires reconsideration. According to the State, the judgment incorrectly held that a third judge must independently examine the entire case, including issues on which the original division bench had unanimously agreed, without first inviting submissions on that aspect or considering a reference to a larger bench.

Senior Advocate Sidharth Luthra, appearing for the accused siblings, argued that the referee judge was fully competent to independently examine the entire appeal and was not confined to resolving only the specific point of disagreement between the two judges. He relied on Section 429 of the Code of Criminal Procedure, 1898, Section 392 of the 1973 Code, the 41st Report of the Law Commission, and several precedents interpreting these provisions.

The Supreme Court noted that the view taken in Sajjan Singh directly supported Luthra's submissions and the approach adopted by the referee judge.

How did the dispute arise?

The matter arose from appeals filed by complainant Dr Rakesh Kumar Gupta and the Uttar Pradesh government against a 2018 judgment of the Allahabad High Court, which acquitted brothers Anil, Ajay and Atul Rastogi in a 1991 murder case. Their father, who was also an accused, died during the trial before the Lucknow court.

All three brothers had been convicted by the trial court and sentenced to life imprisonment.

Their joint appeal was heard by a division bench of the Allahabad High Court. Justice Bhanwar Singh upheld the convictions of Anil and Ajay but acquitted Atul. Justice Devi Prasad Singh, however, upheld the conviction of all three brothers.

As there was a difference of opinion regarding Atul, the matter was placed before a third judge, Justice Vikram Nath (then a judge of the Allahabad High Court). Justice Nath acquitted Atul. He also reversed the concurrent findings of both judges convicting Anil and Ajay.

What did the Supreme Court say about the third judge's powers?

The Supreme Court observed that, on a careful reading of the order of reference, only Atul's appeal had been referred to the third judge and not the appeals of Anil and Ajay. This was despite the fact that the brothers had filed a single composite appeal.

"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. We feel there are strong grounds for so opining," the Bench said.

Court further held that accepting the reasoning in Sajjan Singh could lead to irrational, anomalous and undesirable consequences. Illustrating several such situations, it observed that a mechanical application of the judgment would undermine judicial discipline, propriety, comity and the fairness of the criminal justice system.

The Supreme Court ultimately directed that the appeals be placed before the appropriate bench for final judgment after the larger bench authoritatively decides the legal question regarding the powers of a third judge under Section 392 CrPC.

Case Title: Dr Rakesh Kumar Gupta Vs State of Uttar Pradesh

Bench: Justices Dipankar Datta and Satish Chandra Sharma

Date of Judgment: June 09, 2026