New Delhi: Casting a doubt on the correctness of a 26-year-old landmark judgment of the Supreme Court which said that a third “tie-breaker” judge is not bound by the opinions of earlier two-judge benches when tasked with deciding a split verdict, the top court Tuesday said the issue will be referred to a larger bench.
A division or two-judge bench of Justices Dipankar Datta and Satish Chandra Sharma has now ruled, “While recording our respectful disagreement with the view expressed in Sajjan Singh v. State of MP (1999), we refer the question as to whether ruling lays down correct law for decision to a larger Bench of such strength, as the Hon’ble Chief Justice may constitute.”
Essentially, the SC will now decide if a third or “tie-breaker” judge hearing a criminal appeal under Section 392 of the Code of Criminal Procedure can revisit findings, and arrive at completely independent conclusions, on which there was already complete judicial agreement.
While some lawyers and constitutional experts feel that the purpose of a third or tie-breaker judge is only to resolve a split, and not to sit in appeal over unanimous conclusions, others say that allowing a third judge to unsettle conclusions already arrived at by a two-judge bench, runs the risk of transforming the proceedings into a fresh hearing by a differently-constituted bench.
Former Chief Justice of the Himachal Pradesh High Court, and former Delhi HC judge, Justice Rajiv Shakdher told ThePrint that the focus of the courts should be on the ultimate conclusion rather than the reasoning process. “Essentially, a third judge is concerned with resolving the operative dispute and is not necessarily constrained by how earlier judges analysed the evidence,” he said.
Constitutional experts like Arshia Sana, a lecturer at the Jindal Global Law School, told ThePrint that Section 394 was never meant to create a third-appellate judge. “Instead, it was a narrow dispute-resolution mechanism,” she said, adding that allowing a single judge to undo unanimous findings risks replacing judicial consensus with individual discretion.
Echoing a similar sentiment, Aman Maheshwari, an advocate practising before the Rajasthan HC, told ThePrint, “Allowing a third judge to disrupt conclusions already agreed upon by a two-judge bench risks transforming a reference proceeding into a fresh hearing by a differently-constituted bench, potentially diluting the finality attached to judicial consensus.”
Pointing out how the concern becomes particularly acute when the court is hearing cases involving multiple accused persons, Delhi-based criminal lawyer Ayushi Srivastava said, a plain reading of Sajjan Singh ruling reveals that accused persons who had secured unanimous findings in their favour already by previous benches, could essentially be dragged back into litigation merely because a dispute concerning their co-accused survived. “Nobody’s liberty should be held hostage to a fight that’s only about a co-accused,” she said.
However, this concern surrounding the third judge’s power is not uniform among members of the legal fraternity.
Advocate-on-Record Nipun Saxena told ThePrint that there are decades of judgments from the SC which have held that an appeal is a continuation of the trial and that a judge hearing a reference must be free to independently assess the record.
“Section 392 expressly authorises the third judge to hear the appeal in the manner he considers appropriate and arrive at his own conclusions. He is not restricted in scope and amplitude,” Nipun said, adding that the statute itself gives finality to the third judge’s opinion.
Similarly, advocate Faizan Ahmed, who specialises in constitutional and civil law, told ThePrint that one must tread with caution in such cases as criminal appeals often involve interconnected evidence and inseparable questions of culpability. “Restricting a third judge only to identified points of disagreement may require an artificial separation of issues that are deeply intertwined. “Sometimes a third judge can come to findings which both judges before ignored,” he said.
As of now, the immediate impact of the court’s 9th June ruling is that it has reserved its answers on the scope of Section 392 until the larger bench looks at the matter, so the current law from Sajjan Singh (ruling) technically remains operative but is now in shadow,” advocate Areeb Uddin Ahmed told ThePrint.
What the case was about
The case revolved around Section 392 of the Code of Criminal Procedure (CrPC) which makes it clear that when two high court judges on a division bench are divided in opinion while deciding criminal appeals, the matter will be referred to another judge, also known as the “tie-breaker” or the third judge. After hearing the matter, this third judge has to deliver his opinion. Alternatively, this third judge can also refer the matter to a larger bench for consideration.
Supporting a narrower interpretation of Section 392, some lawyers pointed to the change in statutory language itself. “The SC has noted that the older Code referred to placing ‘the case’ before another judge, while Section 392 of the present Code speaks of ‘the appeal’, a distinction that may indicate Parliament intended a more limited role for the third judge,” Nipun Saxena said.
The issue arose when the two-judge bench of Justices Datta and S. C. Sharma were hearing a challenge to a 2018 order passed by a single judge of the Allahabad HC in the murder case against three brothers. That single judge was Justice Vikram Nath, who has now made his way to the SC and is in line to be the next Chief Justice of India in February 2027.
Interestingly, in 2018, the murder and unlawful assembly case against the three brothers, Ajay, Anil and Atul Rastogi, was decided by Justice Nath, who had acquitted all three accused, and set aside the life sentence.
Prior to this, however, when the case was before the two-judge bench, there was a difference of opinion with regard to the conviction of only brother, Atul. One of the judges had said that all three persons should be convicted, while the other had said only Ajay and Anil should be convicted. This is what led the matter to be placed before a third judge, Justice Vikram Nath in this case.
The question before the SC in the present case then became this: Can the third “tiebreaker judge” can reverse even the unanimous findings of earlier two-judge benches, and come to an entirely independent conclusion on his own, or does he have an obligation to confine his decision only to the point of disagreement between the two judges?
Stating that the options for the third “referee” judge, when seized of a reference under Section 392 are not too wide, the top court ruled that if both judges disagree on the conviction of an accused, the third judge can side with either, and give the final judgment.
Pointing out how when the Allahabad HC’s two-judge bench had differed in opinion on Atul’s conviction, only his appeal should have been placed before the third judge, as opposed to the appeals of Ajay and Anil, where the two judges had unanimously or collectively agreed on their conviction, the court said, “Since, however, there remained a division of opinion regarding the appeal of Atul, only such appeal should have been placed before the third judge.”
The top court in its 9 June ruling also noted that although the Allahabad HC’s 2018 ruling, which was being challenged in the present case, was in line with the precedent set by the Sajjan Singh case, the mechanical application of the law laid down in the 1998 case would render these integral components of a just and fair criminal justice delivery system redundant.
The landmark Sajjan Singh case
The Sajjan Singh v. state of Madhya Pradesh ruling, delivered by a two-judge bench of the SC on 2 September 1998, said that a third judge is required to examine the whole case independently including issues on which the two-judge bench had agreed unanimously.
In a nutshell, the SC had clarified that as a matter of fact, the third judge is not bound by any opinion of the two-judge bench. “He is not hearing the matter as if he is sitting in a three-judge bench where the opinion of the majority would prevail,” the court had said.
Broadly, the facts of the case were that 11 people were tried for murder, with the trial court convicting 10, and acquitting one.
Challenging this, the accused approached the MP HC, where a two-judge bench differed in opinion. While one of the judges on the bench said that all 10 accused were guilty, the other judge felt seven were innocent. Eventually, the matter reached the third tie-breaker judge who decided that six are guilty while four are innocent.
Finally, the case came before the top court, which said that the third judge is required to examine the whole of the case independently and it cannot be said that he is bound by that part of the two opinions of the two judges comprising the Division Bench where there is no difference, the court had ruled in 1998.
Shedding more light on the 1998 ruling, advocate Samarth Luthra told ThePrint that the SC has rightly expressed discomfort with the broad reading of the Sajjan Singh ruling.
“This issue has long troubled criminal law scholars and practitioners. Sajjan Singh (ruling) appeared to permit a third judge to revisit issues on which the first two judges were already unanimous, a position that was always difficult to justify,” Luthra said
While the decision was driven by the legitimate concern that a third judge should not be unduly restricted in appreciating the case, that cannot extend to reopening findings where no disagreement exists, he said, pointing out that a third judge’s role is solely that of a tie-breaker.
Finally, advocate Rahul Bajaj said the larger bench’s eventual ruling could offer guidance in situations such as the Karnataka hijab ban case, where judges on a Division Bench delivered sharply divergent opinions and the matter was ultimately referred for further consideration.
Recalling the 2022 split verdict of the SC in the Hijab ban case, where former Justices Hemant Gupta and Himanshu Dhulia, differed in upholding the hijab ban implemented by the Karnataka government, with the former supporting the ban and the latter disagreeing, constitutional lawyer Nizam Pasha told ThePrint, “The hijab ban case was sent to a larger bench at the behest of CJI, as such disagreements usually are, for resolution.”
(Edited by Viny Mishra)
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