ORDER
1. The record of this case has been placed before us for passing final judgment after the decision of the learned Single Judge to whom the case was referred on difference of opinion between us.
2. On earlier occasion, we had taken the view that the learned Single Judge to whom case was referred has to deliver final opinion and the matter need not be placed before the Division Bench which heard the matter earlier. This view of ours was supported by the decision of the Calcutta High Court in Jugal Kishore v. C.P. Magistrate, Calcutta , in which B. Mukherjee, J. interpreting Section 429, Cr. P.C. 1898 held that the third Judge where the matter is referred is competent to deliver final judgment. Justice Mukherjee held as follows:
A. The plain language of the enactment says with the case being laid before a third Judge with the divided opinion of two of his colleagues, he shall deliver an opinion of his own. More, the judgment shall follow such opinion.
B. What, therefore, serves as the basis of the judgment is his opinion. Why not then a judgment by him then and there following such opinion ?
C. To send the case back to the division of the Court, the two members of which could not agree, – for such a remit, there is no warrant in Section 429, is to resort to a barren circuity; the more so, as the division has to render judgment following the opinion of the third Judge. Thus, the judgment must necessarily be the same, whether delivered by the third Judge then and there or by the division later. Referring back to the division will, therefore, be so jejune. And the circuity will increase if the two differing members of the division Court will differ again on some offshoot, as they have differed from time to time, going by the cases some of which the books reveal. Why this needless waste of judge-hours and everybody else’s time when the statute does not lay down anything of the kind ? It is not difficult to visualize cases where such differences may be interminable. Why then this battledore and shuttlecock between a division Court and a third Judge ?
D. Worse, the Judge whose opinion the third Judge does not share, will have to be a signing party to a judgment which his conscience tells him is not right.
3. In Nemai Mondal v. State of West Bengal , P.B. Mukherjee, J. held as follows:
(5) As I read the language of that Section, what is laid before the third Judge is ‘the case’ itself and not merely the points of difference or the views of difference. The case with the differing opinions is placed before the third Judge. In other words, it is the duty of the third Judge to decide “the case” and not merely the points on which the Judges have differed. No doubt in doing so, the two differing opinions have to be considered by the third Judge. But, the decision is the decision of the third Judge on the case. The concluding words of Section 429 of the Criminal Procedure Code to the effect that the judgment shall follow the opinion of the third Judge seems to indicate that the final and ultimate decision is of the third Judge on the case. At the same time the word “case” normally would mean in the case of a number of appellants, the case of each appellant considered separately. In other words, if out of three appellants, the two Judges of the Division Bench agree on one and disagree in respect of the other two appellants, then the “case” that is referred to under Section 429 of the Criminal Procedure Code is the case not of the appellant on which they agree but the appellants on whom they had disagreed. The case in such a context means the case in respect of the appellants on which the two Judges are equally divided. The words “equally divided” in Section 429 of the Criminal Procedure Code seem to support that construction. In this case, for instance, before me all that I have to decide is the case of the seven appellants from 2 to 8 on which the two Judges were equally divided and not in respect of the appellants Nemai, Prabodh and Kanai about whom they were not divided but unanimous. On this point a reference may be made to the decision in Granade Venkata Ratnam v. Corporation of Calcutta 22 cal WN 745 at p. 756: AIR 1919 Cal 862 at p. 870 where Woodroffe, J. observed as follows:
Without deciding that the word “case” does not include the whole case it is plain that a third Judge would not differ upon a point on which both the referring Judges were agreed unless there were strong grounds for doing so. I am not going to do so here.
(6) It is not necessary for me in this case to decide what Woodroffe, J. meant by “strong grounds”.
(7) The view that I am talking is supported by such decisions as Sarat Chandra Mitra v. Emperor ILR 38 Cal 202, Ahmed Sher v. Emperor 32 Cr. L.J. 868 : AIR 1931 Lah 513 and Subedar Singh v. Emperor AIR 1943 All 272.
(8) In Md. Illias Mistri v. The King ILR 1949(1) Cal 43, Biswas, J. as a reference Judge under Section 429 of the Criminal Procedure Code observed on Section 429 of the Criminal Procedure Code at page 44 of that report as follows: “There can be no doubt upon the working of the Section that the whole case is not before me which means not only that I am at liberty, but, that is also my duty to examine the whole of the evidence for myself and come to a final judgment. It is not a case of merely weighing the opinion of one learned Judge against that of the other and deciding which of these opinions I should accept.
4. The view of the Calcutta High Court was not approved by the Division Bench of Karnataka High Court in B. Subbaiah v. State of Karnataka 1992 Cr. L.J. 3740, where it was observed that after the opinion of the third Judge, the matter would be placed before the original Bench.
5. This question did not directly arise in Balku v. Emperor AIR (35) 1948 All 237. The Allahabad High Court held that when there is difference of opinion between the two Judges of the Division Bench, the case will lay before the third Judge and subsequently if one of the Judges ceases to be the Judge of the High Court, the appeal can be laid before another Division Bench.
6. Mr. P.N. Pandey, learned Senior Counsel appealing on behalf of the appellants relied on Sayan Singh v. State of M.P. and submitted that under Section 392, Cr. P.C. the opinion of the third Judge is to be placed before the original Division Bench for final judgment. This question did not directly arise before the Supreme Court.
7. In State of U.P. v. Dan Singh , relied on in Sayan Singh’s case (supra), an appeal filed before the Allahabad High Court against the judgment of Sessions Judge, Almora, was allowed by acquitting all the accused who were tried for an offence under Section 302, I.P.C. There was difference of opinion between the two learned Judges constituting Division Bench. B.N. Katju, J. upheld the acquittal of the accused except two. Rajeshwar Singh, J. in his separate judgment agreed for the acquittal of 22 accused but he set aside the acquittal of six other accused and four ladies. Thus, both the learned Judges agreed on the acquittal of 22 of the accused and there was difference of opinion with regard to remaining accused. The Division Bench on 15-4-1987 passed two orders. First order was regarding acquittal of 22 accused. By the second order the records were directed to be placed before another Bench under Section 392, Cr. P.C. The appeal was placed before another learned Judge V.P. Mathur, J., who agreed with the opinion of Katju, J. As a result thereof final order was passed on 19-5-1988.
8. Special Leave Petition was filed on behalf of the State against all the 32 accused. It was argued before the Supreme Court that the appeal against the 22 accused, qua whom the State’s appeal was dismissed by order dated 15-4-1987, had become final and no appeal had been filed against the said decision. The appeal had only been filed against the final order dated 19-5-1988 pursuant to the opinion of The third Judge.
The Supreme Court rejecting the above contention observed as follows:
22. In our opinion there is no merit in the aforesaid contention as is evident from the bare perusal of Section 392 of the Code of Criminal Procedure, 1973, which is 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.
23. According to this section if there is a difference of opinion amongst the Judges of the Bench, then their opinions are laid before another Judge. It is only after the third Judge gives his opinion that the judgment or order follows. It is clear from this that a judgment or order which can be appealed against, under Article 136 of the Constitution, is only that which follows after the opinion of the third Judge has been delivered. What B.N. Katju and Rajeshwar Singh, JJ. wrote was not their judgments but they were their opinions. Due to disagreement amongst them, Section 392 of the Code of Criminal Procedure required the appeal as a whole to be laid before the third Judge (V.P. Mathur, J. in this case) whose opinion was to prevail. The first order of 15-4-1987 was clearly not contemplated by Section 392 of the Criminal Procedure and is, therefore, non est.
24. When the appeal as a whole is heard by the third Judge, he not only has an option of delivering his opinion but, under the proviso to Section 392 of the Code of Criminal Procedure he may require the appeal to be re-heard and decided by a larger Bench of Judges. This was an option which, under the proviso, was also open for any one of the two Judges, namely, B.N. Katju and Rajeshwar Singh, JJ. to exercise, but they chose not to do so. What is clearly evident is that the appeal is finally disposed of by the judgment and order which follows the opinions of the third Judge. This being so special leave petition could only have been filed after the appeal was disposed of by the High Court vide its final order dated 19-5-1988….
9. It, therefore, follows from the decision in Dan Singh’s case (supra) that the appeal is to be finally disposed of by the Division Bench on receipt of the opinion of the third Judge. According to the opinion of the third Judge, this appeal is disposed of in the following terms:
(a) All the appellants are acquitted of the charges under Section 304-B of the Indian Penal Code and their conviction is set aside.
(b) Appellant No. 2 Bishwanath Rai is convicted under Sections 3 and 4 of the Dowry Prohibition Act as also under Section 498-A of the Indian Penal Code and sentenced to Rigorous Imprisonment for three years under Section 498-A, I.P.C., two years under Section 3 of Dowry Prohibition Act and three months under Section 4 of the Dowry Prohibition Act. He has remained in custody for about six years i.e. more than the sentence awarded to him. Now, he has been ordered to be released on bail by order dated 20-8-1999. He is discharged from the liability of his bail-bonds.
10. In the result, this appeal is allowed in part in the manner as indicated above.