The Supreme Court has referred to a larger Bench a significant legal question concerning the powers of a third judge hearing a criminal appeal when two judges of a High Court differ in their views. The Court expressed reservations about an earlier ruling that allowed a third judge to independently reconsider the entire appeal, even on issues where the original judges were unanimous.
The ruling came in appeals arising from a decades-old murder case from Uttar Pradesh.
Background of the Case
The case originated from a 1991 criminal incident in Lucknow. Four members of the Rastogi family were prosecuted. During trial, one accused died, while three brothers - Anil, Ajay and Atul Rastogi - faced trial.
In 2001, the trial court convicted the brothers for offences including murder and sentenced them to life imprisonment.
The brothers challenged their conviction before the Allahabad High Court. A Division Bench hearing the appeal agreed that Anil and Ajay should remain convicted. However, the judges differed regarding Atul Rastogi. One judge held that Atul should be acquitted, while the other believed his conviction should be upheld.
Because of this disagreement, the matter was placed before a third judge under Section 392 of the Code of Criminal Procedure.
The third judge not only agreed that Atul should be acquitted but also revisited the findings against Anil and Ajay.
After independently examining the evidence, the third judge acquitted all three brothers, despite the fact that the two original judges had unanimously upheld the convictions of Anil and Ajay.
This led the complainant and the State of Uttar Pradesh to approach the Supreme Court.
Before deciding the appeals, the Supreme Court examined the scope of Section 392 CrPC, which deals with situations where judges hearing an appeal are divided in opinion.
The Bench noted that a crucial issue arises when only one part of a case is disputed but the third judge proceeds to reconsider the entire appeal.
Discussing the statutory language, the Court emphasized the distinction between the expressions "an appeal" and "the appeal" used in Section 392.
The Bench observed that,
“'The appeal' has to be read as referring back to 'an appeal' in which disagreement has occurred.”
The Court further noted that although the three accused had filed a composite appeal, each accused effectively exercised an individual right of appeal.
According to the Bench, there was no disagreement between the two High Court judges regarding Anil and Ajay. Their convictions had already been unanimously affirmed.
The judges observed that, in such circumstances,
“There being no division of opinion, the appeals of Ajay and Anil could not and should not have been placed before the third Judge.”
The Court expressed concern that the interpretation adopted in an earlier Supreme Court decision, Sajjan Singh v. State of Madhya Pradesh, could produce anomalous results.
The Bench pointed out that under such an interpretation, a third judge could potentially overturn unanimous conclusions already reached by two judges of a Division Bench.
The judges also questioned whether parties filing a composite appeal should receive an advantage unavailable to similarly situated litigants who file separate appeals.
The Court said these issues require deeper examination because they may have implications for fairness and consistency in criminal appellate proceedings.
After expressing its respectful disagreement with the view taken in Sajjan Singh v. State of Madhya Pradesh, the Supreme Court referred the question of whether that judgment lays down the correct law to a larger Bench.
The Court reserved its final answers on the substantive legal questions and directed that the appeals be placed before an appropriate Bench after the larger Bench delivers its opinion.
Case Details
Case Title: Dr. Rakesh Kumar Gupta v. State of Uttar Pradesh & Ors.; State of Uttar Pradesh v. Anil Rastogi & Ors.
Case Number: Criminal Appeal Nos. 2372 and 2373 of 2026
Judge: Justice Dipankar Datta and Justice Satish Chandra Sharma
Decision Date: June 9, 2026
