Breaking the Tie: Supreme Court Questions if a Referee Judge Can Overturn Unanimous Decisions of a Division Bench under Section 392 CrPC

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Case: RAKESH KUMAR GUPTA v. THE STATE OF UTTAR PRADESH
Court: Supreme Court of India
Date: 09-06-2026
Law: Code of Criminal Procedure, Constitution of India, Indian Penal Code.

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Imagine being unanimously cleared of criminal charges by a two-judge Division Bench of a High Court, only to have your hard-won acquittal placed in jeopardy because the same judges disagreed on the guilt of your co-accused. Conversely, imagine your unanimous conviction being overturned by a single referee judge who was only brought in to resolve a dispute about someone else. This procedural tightrope is at the heart of a fascinating and highly impactful reference by the Supreme Court of India in the case of Dr. Rakesh Kumar Gupta v. State of Uttar Pradesh.

The Split-Bench Conundrum and the Third Judge

Under the Indian criminal justice system, when two judges of a High Court Bench are equally divided in their opinion on an appeal, the matter is referred to a third judge. This procedure, governed by Section 392 of the Code of Criminal Procedure, 1973 (CrPC), is designed to break deadlocks. However, a critical question has long plagued the courts: does the third judge have the power to reopen the entire case, including issues and co-accused on which the original two judges were in complete agreement?

In the present case, three brothers faced trial for murder. On appeal, the High Court's Division Bench unanimously upheld the conviction of two brothers but split on the third. When the matter reached the referee judge, he not only acquitted the third brother but went on to acquit the other two as well, effectively reversing the unanimous decision of the Division Bench. The referee judge relied on a twenty-five-year-old Supreme Court precedent, Sajjan Singh v. State of Madhya Pradesh, which held that a third judge must examine the whole case independently.

A Grammatical Twist: 'An Appeal' vs. 'The Appeal'

The Supreme Court, in a brilliant display of statutory interpretation, dissected the language of Section 392 of the 1973 CrPC, contrasting it with its predecessor, Section 429 of the 1898 Code. While the old Code referred "the case" to the third judge, the modern Code uses the terms "an appeal" and "the appeal". The Court turned to English grammar to resolve this semantic puzzle.

The Bench explained that the legislature's shift in terminology was deliberate and highly significant. By using the indefinite article "an" followed by the definite article "the", the law restricts the referee judge's focus. The Court observed:

"the indefinite article sets up the class, the definite article picks out the individual instance from that class."

In plain terms, while "an appeal" refers to any appeal that results in a divided opinion, "the appeal" narrows the referee judge's jurisdiction strictly to the specific dispute or the individual accused where the disagreement actually occurred. The third judge cannot treat the reference as an open season to re-evaluate unanimously settled aspects of the case.

The Perils of the 'Sajjan Singh' Precedent

The Supreme Court highlighted the absurd and discriminatory outcomes that arise from a mechanical application of the Sajjan Singh precedent. Consider a scenario where three co-accused file a joint appeal. The Division Bench unanimously acquits two of them but splits on the third. If the entire case is referred to a third judge, the two acquitted individuals suddenly run the risk of being convicted by the referee judge.

This creates a glaring constitutional anomaly under Article 14. If the accused had filed separate appeals instead of a joint one, the two acquitted individuals would have walked free immediately, their cases sealed. Why should their liberty hang in the balance simply because of the "fortuitous circumstance" of filing a composite appeal? The Court rightly noted that such an approach penalizes joint appeals and breeds systemic inequality.

Preserving Judicial Discipline and Article 14

The judgment serves as a powerful reminder of the importance of judicial comity and discipline. Allowing a single referee judge to overrule the unanimous findings of a two-judge Bench on undisputed matters undermines the hierarchical integrity of the judiciary. It transforms a deadlock-breaking mechanism into an unbridled appellate power.

"A mechanical application of the law laid down in Sajjan Singh (supra) would render these integral components of a just and fair criminal justice delivery system redundant."

By referring this issue to a larger Bench, the Supreme Court has set the stage for a crucial correction in India's criminal procedure. The upcoming decision of the larger Bench will determine whether the referee judge's role is that of a targeted arbitrator or an all-powerful reviewer, a distinction that has profound implications for the liberty of the accused and the consistency of our judicial process.