Sandeep Kumar Sharma v. State Of Bihar — 1999 DIGILAW 681 (PAT)

Judgment I.P.Singh, J. 1. By an order dated 5-2-1999 the Division Bench (R.N. Sahay and P.K. Sarkar, JJ) directed that this record be again placed before me for the necessary orders. 2. It will be useful, in this connection, to quote the concluding portion of this order which runs as follows : "This appeal has been finally disposed of Honble Justice (Smt.) I.P.Singh and the appeal stands disposed of by the judgment of the learned Judge. The matter should not have been placed before the Division Bench as there is no provision in the Code of Criminal Procedure. Let the record be again placed before Honble Justice (Smt.) I.P. Singh for necessary orders." 3. This is how this appeal has again been placed before me. 4. In this connection it will be useful to briefly narrate the circumstances under which the aforesaid order has been passed by the Division Bench. 5. This appeal was placed before this Division Bench for hearing and disposal. There are two appellants in this appeal, namely, (1) Sandeep Kumar Sharma alias Dabbua and (2) Pradip Kumar Sharma. The Honble Judges constituting this Division Bench were, however divided in their opinions R.N. Sahay, J. dismissed the appeal of Sandeep Kumar Sharma alias Dabbua and up-held the order of conviction passed against him. So far as appellant Pradip Kumar Sharma was concerned the learned Judge set aside his conviction and discharged him from the liability of his bail bond. P.K. Sarkar, J. by a separate order dismissed the appeal of both the appellants and confirmed the judgment of conviction against them passed by the learned Trial Court. In view of this difference in opinion between two Honble Judges the matter was placed before the Honble the Chief Justice who ordered it to be placed before this Bench under the provisions of Section 392 on the Code of Criminal Procedure, 1973 (in short the Code). 6. When this matter ws placed before me, I heard parties and was of the opinion that the prosecution had failed to prove its case beyond all reasonable doubts against both the appellants. I was also of the opinion that since the prosecution has failed to prove the charges against the appellants, they were entitled to be acquitted. The concluding portion of my order, dated 18-12-1998 containing the aforesaid opinion runs as follows : "26. I was also of the opinion that since the prosecution has failed to prove the charges against the appellants, they were entitled to be acquitted. The concluding portion of my order, dated 18-12-1998 containing the aforesaid opinion runs as follows : "26. With the aforesaid opinion I am returning this case to the Division Bench for proceeding in accordance with law. Let it be placed before the learned Judges of the Division Bench alongwith my above mentioned opinion." When, however, this matter was placed before the Division Bench it again returned back this appeal to me with the aforesaid observation as noted above. 7 In their order dated 5-2-1999 the learned Judges constituting the Division Bench (R.N. Sahay and P.K.Sarkar, JJ) held that in cases of difference of opinions between the two judges constituting the Division Bench and when the matter is referred before the Third Judge under Section 392 of the Code, the opinion of the Third Judge shall be the final judgment in the appeal. In support of this observation the Bench has. relied on the case of Sajjan Singh V/s. State of Madhya Pradesh, AIR 1998 SC 2756 : 1999 (1) East Cr C 272 (SC). On the Strength of this decision they were of the view that under the provisions of Section 392 of the Code it was for the third Judge to give the opinion which will be the final Judgment in the appeal. They were of the view that the third learned Judge was not required to send back the record to the Division Bench to pronounce the judgment in confimity with his/her opinion. In other words; as will appear from the said order dated 5-2-1999; the Division Bench was of the view that after the case was referred to the third learned Judge for the opinion the learned Judges constituting the Division Bench were no longer concerned with the judgment in this appeal which was to be delivered by Third Judge on the basis of her opinion. In this connection the Bench has also referred to the case of State of Uttar Pradesh V/s. Dan Singh and others, 1997 (2) BLJ 314. In this connection the Bench has also referred to the case of State of Uttar Pradesh V/s. Dan Singh and others, 1997 (2) BLJ 314. By this order dated 5-2-1999 the Division Bench stated that this appeal was finally disposed of by this Bench by the Judgment passed by me and hence this matter should not have been again placed before the Division Bench as there is no provision in the Code for the same. 8. This takes us to the consideration of Section 392 of the Code which runs as follows : "392. Procedure where Judges of Court of Appeal are equally divided : When an appeal under this chapter is heard by a High Court before a Bench of Judges and they are divided in opinion, the appeal, with their opinions, shall be laid before another Judge of that Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion : Provided that if one of, the Judges constituting the Bench, or, where the appeal is laid before another Judge under this Section, that Judge, so requires, the appeal shall be re-heard and decided by a larger Bench of Judges." 9. The true scope of Section 392 of the Code has come up for consideration and decision before the Honble Supreme Court from time to time. Before, however, I will take up for consideration the decisions of the Supreme Court laying down the law on the point, I would like to mention that under the scheme of Section 392 of the Code in the cases when the Judges are divided in their opinions the appeal with their opinions is laid before another Judge of that Court. It is important to mention in this connection that the moment the Judges constituting the Division Bench are divided in their opinions the same is not termed as their Judgments but simply their opinions. In other words the divided opinions of the Judges constituting the Division Bench do not attain the finality of the Judgment. Similarly when the appeal with their opinions is laid before another Judge that Judge also, after hearing, delivers his opinion and not a judgment. In other words the divided opinions of the Judges constituting the Division Bench do not attain the finality of the Judgment. Similarly when the appeal with their opinions is laid before another Judge that Judge also, after hearing, delivers his opinion and not a judgment. If actually the framers of law intended that the judgment was to be delivered by the third Judge, they could have specifically provided that the third Judge would deliver the judgment and not only his opinion or in any case they could have provided that the third Judge would give his opinion as well as the learned in the appeal. It is in this background that the provision thereafter is that the judgment and order shall follow the opinion of the third learned Judge. Now the question that will arise in this connection is who will deliver the judgment? Whether the judgment shall be delivered by the third learned Judge or by the same Bench which had originally heard the appeal but the Judges of that Bench were divided in their opinions? The observations made by the Honble Judges constituting the Division Bench in their order dated 5-2-1999 shows that it was for me to pronounce the judgment and, therefore, the matter should not have been placed before the Division Bench as there was no provision in the Code for the same. Here it may be pointed out that as yet this Bench had not given any judgment in the matter as will appear from the order dated 18-12-1998. Hence properly speaking no judgment by this Bench was delivered and this appeal did not stand disposed of by any such judgment as observed by the Division Bench in the concluding portion of the order as quoted in the begining. Section 392 of the Code itself shows tht the judgment is to follow the opinion of the third learned Judge which in itself can not be termed as judgment. 10. The learned Judges constituting the Division Bench have referred to the case of Sajjan Singh (supra). However, I have no alternative but to observe with utmost respect that the conclusions drawri by the learned Judges constituting this Division Bench with respect to the findings of this case do not appear to be correct. 10. The learned Judges constituting the Division Bench have referred to the case of Sajjan Singh (supra). However, I have no alternative but to observe with utmost respect that the conclusions drawri by the learned Judges constituting this Division Bench with respect to the findings of this case do not appear to be correct. No doubt in this decision it was held by the Honble Supreme Court that the third Judge to whom the matter is referred; on the difference of opinion by two Judges of Division Bench of the High Court; is required to examine whole of the case independently and it can not be said that he is bound by that part of the opinions of two judges comprising the Division Bench where there is no difference. It was further held in this decision that as a matter of fact the third Judge is not hearing the matter as if he is sitting in a three Judges Bench where the opinion of the majority would prevail. The question, as to who will deliver the judgment in the appeal on the basis of the opinion of third Judge has been answered in this decision in which reliance has been placed on another case, namely, Tanviben Punkaj Kumar Divetia V/s. State of Gujarat, AIR 1997 (SC) 2193 : (19971 7 SCC 156 : 1997 (2) East Cr C 340 (SC) whose paragraph Nos. 5 to 7 as reported in AIR have been quoted in extenso in this judgment. Paragraph No. 6 of the decision in the case of Tanviben Pankaj Kumar Divetia (supra) runs as follows (East Cr C Page 344) : "6. Where a case is referred to a third Judge under Section 392, Cr. P.C. such Judge is not only entitled to decide on what points he shall hear the arguments if any, but his decision will be final and the judgment in the appeal will follow his decision? Where a case is referred to a third Judge under Section 392, Cr. P.C. such Judge is not only entitled to decide on what points he shall hear the arguments if any, but his decision will be final and the judgment in the appeal will follow his decision? Precisely for the said reason, it has been held by the Allahabad High Court that if one of the Judges, who had given a different opinion ceases to be Judge, the judgment may be pronounced by another Bench of the High Court, the reason being that the ultimate decision in the appeal is to abide by the decision of the third Judge and pronouncement of the decision in conftrmity with the decision of the third Judge is only a formality (AIR 1948 All. 237)." (Emphasis supplied) 11. From this paragraph it becomes perfectly clear that third learned Judge is only to give his opinion and not the judgment in the appeal though the judgment may have to be based on his opinion. The judgment, however, has to be pronounced by the Bench which earlier heard the appeal but the Judges onstituting the Division Bench were divided in their opinions. This paragraph also shows that even when one of the Judges constituting the Division Bench had ceased to be the Judge the opinion of the third learned Judge will have to be placed before another Division Bench of the High Court and that Bench is to pronounce the decision in confirmity with the opinion of the third learned Judge. In view of this paragraph in this decision quoted with approval in the case of Sajjan Singh (supra) can it be said that it is the third learned Judge who is to pronounce the judgment on the basis of his opinion? 12. The learned Judges constituting the Division Bench have also referred to the case of State of U.P. (supra) and have observed that in this decision it was held that the appeal to the Supreme Court would lie against the opinion of the Third Judge to whom the appeal was referred to under Section 392 of the Code of Criminal Procedure. With utmost respect to the Honble Judges constituting this Division Bench, it can be said that there is no such finding given by the Honble Supreme Court in this decision. With utmost respect to the Honble Judges constituting this Division Bench, it can be said that there is no such finding given by the Honble Supreme Court in this decision. From this decision it appears that the learned Sessions Judge who held the trial came to the conclusion that the prosecution failed to establish the guilt of the accused beyond reasonable doubts and accordingly he acquitted the accused. State filed a criminal appeal before the High Court of Allahabad against the aforesaid judgment of the trial court. This appeal came up for hearing before the Division Bench of B.N. Katju and Rajeshwar Singh, JJ. By his opinion dated 15th April, 1987 B.N. Katju, J. came to the conclusion that except for respondents Jit Singh and Kishan Singh the acquittal of all other respondents should be upheld. By a separate opinion Rajeshwar Singh, J. observed that appeal would be partly allowed. While both the learned Judges agreed on the acquittal of 22 of the accused persons there was a difference of opinion with regard to six other accused and 4 ladies who were charged with different offences. On 15th April, 1987 two orders were passed by the Division Bench. The first order was regarding the acquittal of 22 accused. By the second order in view of difference of opinion between two learned Judges with respect to the remaining accused; the Bench directed that the papers be placed before the Chief Justice for the appeal to be placed before the another Judge under Section 392 of the Code of Criminal Procedure. This was how the appeal was placed before third learned Judge V.P. Mathur, J. who agreed whth the opinion of B.N. Katju, J. and as a result there of final order in the appeal was passed on 19th May, 1988 which runs as follows : "In view of the opinion of the third Judge under Section 392 of the Cr. P.C. the Government Appeal against the acquittal of Dan Singh, Inder Singh, son of Parrat Singh, Trilop Singh son of Hayat Singh, Smt. Rajmati Smt. Jaintuli Devi, Smt. Jhapari Devi and Smt. Mana Devi Ram Singh...is dismissed... (Emphasis supplied)." 13. P.C. the Government Appeal against the acquittal of Dan Singh, Inder Singh, son of Parrat Singh, Trilop Singh son of Hayat Singh, Smt. Rajmati Smt. Jaintuli Devi, Smt. Jhapari Devi and Smt. Mana Devi Ram Singh...is dismissed... (Emphasis supplied)." 13. From the aforesaid observation it becomes clear that the same could not have been made by third learned Judge, namely, V. P. Mathur, J. before whom the case was placed by the Honble the Chief Justice on a difference of opinion between the two Judges, namely, B.N. Katju and Rajeshwar Singh, JJ. as in that case he would have observes as "my opinion" and not the "opinion of the third Judge". From the above quoted observation it becomes clear that it could not have been passed by the third learned Judge, namely, V.P. Mathur, J. as it has been observed in it that in view of the opinion of the third Judge under Section 392 of the Code of Criminal Procedure (emphasis supplied) the Government Appeal was being dismissed. This becomes clear from paragraph 14 of the judgment in the case of State of U.P. (supra). V. P. Mathur, J. did not give his opinion on 19th May, 1988. As a matter of fact on this date the final order was passed which was based on the opinion of the third learned Judge, namely, V.P. Mathur, J. The aforesaid observation could not have been made by the V. P. Mathur, J. as in that case he would not have observed that in view of the opinion of the third Judge the Govt. appeal against acquittal was being dismissed (emphasis supplied). This itself is sufficient to show that on 19th May, 1988 the final order was passed by the Divison Bench and not by the V. P. Mathur, J. This also becomes clear from the observation made in the middle of paragraph 17 of this judgment which runs as follows : "...This appeal has only been filed against the final order dated 19th May, 1988 persuant to the opinion of the third Judg..." It was in this background that in paragraph 20 of this judgment in the case of State of U.P. (supra) that it has observed as follows : "What is clearly evident is that the appeal is finally disposed of by the judgment and order which follows the opinion of the third Judge. This being so special leave petition would only have been filed after the appeal was disposed of by the High Court vide its final order dated 19th May, 1988." Thus, it is clear that the opinion of the third learned Judge is not dated 19th May, 1988. On the other hand, it was by the judgment and order passed by the Bench which was based on the opinion of the third Judge and by which the appeal was disposed of on 19th May, 1988. It was under this circumstances that the Supreme Court treated mat the High Court had disposed of this appeal by the judgment and order dated 19th May, 1988. 14 In view of the aforesaid provisions of law as pointed out above I feel that this Bench before which this appeal was laid as the third Judge, in view of difference of opinion between the two learned Judges constituting the Division Bench is not under law authorised to pass any judgment. There is no such provision in law as is evident from Section 392 of the Code. All that this Bench is authorised to do is to give its opinion and the judgment is to follow on the basis of this opinion though the judgment is to be pronounced by the division Bench and not by the third learned Judge. 15. In view of the aforesaid I have got no alternative under the law but to again place this appeal before the learned Judges constituting the Division Bench for proceeding in accordance with law and for pronouncing the judgment in confirmity of my opinion dated 18-12-1998 and also in light of Supreme Court decisions mentioned above.