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Showing contexts for: Section 392 CrPC in Motibhai vs State on 28 October, 2010Matching Fragments
With respect to Criminal Appeal no. 1033/2002, filed by the original accused also, learned Judges concurred to the extent that appeal of original accused no.3 and 4 i.e. appellants no. 3 and 4 is required to be allowed.
Before going to the merits of the case, I must bear in mind role of a third Judge in case of a reference of this nature.
Reference is made under Section 392 of the Code of Criminal Procedure which provides as under :
392.
Procedure where Judges of Court of Appeal are equally divided.
7. Section 392 Cr.P.C. clearly contemplates that on a difference of opinion between the two judges of the Division Bench, the matter is to be referred to the third Judge for his opinion so that the appeal is finally disposed of on the basis of such opinion of the third Judge. In the scheme of Section 392 Cr.P.C., the view that third Judge, as a rule of prudence or on the question of judicial etiquette, will lean in favour of the view of one of the Judges in favour of acquittal of the accused, cannot be sustained. The Calcutta High Court has held in Nemai Mandal Vs. State of West Bengal (AIR 1966 Cal 194) that the third Judge need not as a matter of fact, lean in favour of acquittal even if one of the judges had taken such view. It has been held that benefit of doubt may be given only if third Judge holds that it is a case where accused is to be given benefit of doubt. There is no manner of doubt that the Judge has a statutory duty under Section 392 Cr.P.C. to consider the opinions of the two Judges whose opinions are to be laid before the third Judge for giving his own opinion on consideration of the facts and circumstances of the case. In Dharam Singh Vs. State of U.P. (1964 (1) Crl.L.J. 78) this court has indicated that it is the duty of the third Judge to consider the opinion of his two colleagues and to give his opinion. Therefore the learned third Judge has rightly discarded the contention that as a rule of prudence or on the score of judicial etiquette, he was under any obligation to accept the view of one of the Judges holding in favour of acquittal of the accused appellant.