Vs.

Judges: G.N. RAY & G.T. NANAVATI, JJ.

Date of Judgment: May 06, 1997

Criminal Procedure Code

Section 392 – Difference of opinion amongst two judges – Held that duty is of third Judge to consider opinion of two colleagues and to give his opinion – Third Judge not under obligation to accept the opinion of Judge to acquit.

The plain reading of Section 392 clearly indicates that it is for the third Judge to decide on what points he shall hear arguments, if any, and it necessarily postulates that the third Judge is free to decide the appeal by resolving the difference in the manner, he thinks proper. In Babu and Other v. State of Uttar Pradesh (AIR 1965 SC 1467) it has been held by Constitution Bench of this Court that where the third Judge did not consider it necessary to decide a particular point on which there had been difference of opinion between the two Judges, but simply indicated that if at all it was necessary for him to come to a decision on the point, he agreed with all that had been said about by one of the two Judges, such decision was in conformity with law. That the third Judge is free to decide the appeal in the manner he thinks fit, has been reiterated in Hathuba v. State of Gujarat (AIR 1970 SC 1266) and Union of India v. B.N. Ananthapadmanabhiah (AIR 1971 SC 1836). In State of A.P. v. P.T. Appaih (1981 SC 365), it has been held by this Court that even in a case when both the Judges had held that the accused was guilty but there was difference of opinion as to the nature of offence committed by the accused, it was open to the third Judge to decide the appeal by holding that the accused was not guilty by considering the case on merit.

Section 392 Cr.P.C clearly contemplates that on a difference of opinion between the two judges of the Division Bench, the matter is to be referred to the third Judge for his opinion so that the appeal is finally disposed of on the basis of such opinion of the third Judge. In the scheme of Section 392 Cr.P.C., the view that third Judge, as a rule of prudence or on the question of judicial etiquette, will lean in favour of the view of one of the Judges in favour of acquittal of the accused, cannot be sustained. The Calcutta High Court has held in Nemai Mandal v. State of West Bengal (AIR 1966 Cal 194) that the third Judge need not as a matter of fact, lean in favour of acquittal even if one of the judges had taken such view. It has been held that benefit of doubt may be given only if third Judge holds that it is a case where accused is to be given benefit of doubt. There is no manner of doubt that the third Judge has a statutory duty under Section 392 Cr.P.C. to consider the opinions of the two Judges whose opinions are to be laid before the third Judge for giving his own opinion on consideration of the facts and circumstances of the case. In Dharam Singh v. State of U.P. (1964 (1) Crl.L.J. 78) this court has indicated that it is the duty of the third Judge to consider the opinion of his two colleagues and to give his opinion. Therefore the learned third Judge has rightly discarded the contention that as a rule of prudence or on the score of judicial etiquette, he was under any obligation to accept the view of one of the Judges holding in favour of acquittal of the accused appellant. (Para 5 & 7)