Dr Rakesh Kumar Guptav.State of Uttar Pradesh and Others

Legal Analysis: Dr. Rakesh Kumar Gupta v. State of Uttar Pradesh and Others

Citation: 2026 INSC 632

Court: Supreme Court of India

Bench: Division Bench Justice Satish Chandra Sharma & Justice Dipankar Datta

Date of Decision: June 9, 2026

Nature of Judgment: Criminal Appeal arising out of SLP (Crl.) No. 8760 of 2018 and SLP (Crl.) No. 6910 of 2019 against the judgment of the High Court of Judicature at Allahabad dated 22nd March 2018.

Synopsis of the Judgment

The appeals arose from a composite criminal appeal filed by three brothers (Anil, Ajay and Atul Rastogi) against their conviction under Section 302 read with Section 149 IPC. The Division Bench of the Allahabad High Court was divided: one Judge upheld the conviction of all three, the other Judge acquitted Atul but upheld the conviction of Anil and Ajay. The matter was referred to a third Judge under Section 392 CrPC. The third Judge, instead of limiting himself to the point of disagreement (Atul), independently examined the entire case and acquitted all three brothers, including Anil and Ajay on whose conviction the two Judges had unanimously agreed. The complainant and the State appealed to the Supreme Court. The Supreme Court held that the third Judge exceeded his jurisdiction. Interpreting Section 392 CrPC, the Court held that: (i) the reference under Section 392 is limited only to the appeal of the accused in respect of whom there was a division of opinion; (ii) where there is unanimous agreement on the conviction of other accused, their appeal stands dismissed and cannot be reopened by the third Judge; (iii) the decision in Sajjan Singh v. State of M.P. (1999) 1 SCC 315, which held that the third Judge can examine the whole case independently, was doubted and referred to a larger Bench for reconsideration. The appeals were kept pending awaiting the opinion of the larger Bench.

1. Basic Information of the Judgment

Case Title: Dr. Rakesh Kumar Gupta v. State of Uttar Pradesh and Others (with State of U.P. v. Anil Rastogi and Others)

Citation: 2026 INSC 632

Criminal Appeal Nos.: 2372/2026 and 2373/2026 (arising out of SLP (Crl.) Nos. 8760/2018 and 6910/2019)

Bench: Justice Dipankar Datta & Justice Satish Chandra Sharma

Date of Decision: June 9, 2026

Court: Supreme Court of India (Criminal Appellate Jurisdiction)

Impugned Order: Judgment and order dated 22nd March 2018 of a learned Single Judge of the High Court of Judicature at Allahabad, disposing of Criminal Appeal No. 60 of 2001 as the third Judge, acquitting all three accused.

2. Legal Framework

Major Laws and Provisions Involved

• Code of Criminal Procedure, 1973 – Section 374(2) (appeal to High Court from conviction by Sessions Judge), Section 378 (appeal against acquittal), Section 392 (procedure when Judges of Court of Appeal are equally divided – reference to third Judge, proviso for larger Bench), Section 429 (the corresponding provision in the 1898 Code).

• Code of Criminal Procedure, 1898 – Section 429 (procedure where Judges equally divided – "the case" with their opinions laid before another Judge).

• Indian Penal Code, 1860 – Sections 148, 149, 302.

• Constitution of India, 1950 – Article 14 (equality before law – argument that composite appeal should not give advantage over separate appeals), Article 136 (special leave to appeal).

Key Precedents Cited and Applied

• Sajjan Singh v. State of Madhya Pradesh (1999) 1 SCC 315 – The third Judge under Section 392 CrPC is required to examine the whole case independently and is not bound by the unanimous opinion of the two Judges on any point; he can differ even where there was no disagreement.

• State of A.P. v. P.T. Appaiah (1997) 10 SCC 321 – The third Judge is competent to independently examine the entire case, including acquitting the accused despite concurrent findings of guilt by the Division Bench; the Court declined to follow Bhagat Ram in light of earlier larger Bench decisions.

• Bhagat Ram v. State of Rajasthan (1972) 2 SCC 466 – Narrower construction: where the Division Bench had conclusively affirmed acquittal on certain charges, the third Judge could not reopen that matter.

• State of U.P. v. Dan Singh (1997) 3 SCC 747 – The opinions expressed by the two Judges prior to reference are not final judgments; the enforceable judgment emerges only after the opinion of the third Judge is delivered.

• Babu v. State of U.P. (1971) 3 SCC 278 – Third Judge could deal with whole case.

• Hethuba v. State of Gujarat (1970) 1 SCC 720 – Same.

• Krishna Pradhan v. State of West Bengal (2022) SCC OnLine Cal 1621 – Third Judge must independently examine the entire case without being bound by either view.

• Nagen Das v. State of Assam (2002) 4 GLR 105 (FB) – Difference of opinion requires reference of the entire case to the third Judge, who is empowered to hear and consider the whole matter independently.

3. Relevant Facts

A Sessions Court convicted three brothers – Anil Rastogi, Ajay Rastogi and Atul Rastogi – under Sections 148, 149 and 302 IPC and sentenced them to life imprisonment. They filed a composite criminal appeal before the Allahabad High Court (Criminal Appeal No. 60 of 2001). The appeal was heard by a Division Bench comprising Bhanwar Singh, J. and Devi Prasad Singh, J.

Bhanwar Singh, J. held that Anil and Ajay were guilty and their conviction should be upheld, but Atul should be acquitted. Devi Prasad Singh, J. held that all three were guilty and their conviction should be upheld. Thus, there was unanimous agreement on the guilt of Anil and Ajay (both Judges upheld their conviction), but a difference of opinion on the guilt of Atul (one Judge acquitting, the other convicting).

The Division Bench referred the matter to a third Judge under Section 392 CrPC. The reference order stated: "Since we have a divided opinion in the Criminal Appeal No. 60 of 2001, this appeal be laid with our different opinions as provided under Section 392 CrPC before another Judge of this court."

The third Judge (Vikram Nath, J., as His Lordship then was) independently examined the entire evidence and acquitted all three brothers, including Anil and Ajay on whose conviction the two Judges had unanimously agreed.

Aggrieved, the complainant (Dr. Rakesh Kumar Gupta) and the State of Uttar Pradesh filed separate Special Leave Petitions before the Supreme Court.

4. Issues

Issue No. 1: Whether, in view of a division of opinion between the two Judges of a Division Bench hearing an appeal under Chapter XXIX of the CrPC, the third Judge before whom the appeal is laid is obliged to deliver his opinion agreeing with either one of the two opinions, or is he empowered to give an opinion which diverges from both opinions.

Issue No. 2: Whether the third Judge is obliged to render his opinion confined to the points of disagreement between the two Judges only, or is he competent and empowered in law to differ with the conclusions unanimously reached by both the Judges of the Division Bench and give his independent opinion at variance with such unanimous conclusion.

Issue No. 3: Whether the third Judge, upon the appeal being laid in terms of Section 392 CrPC, is bound by the unanimous conclusions of the two Judges of the Division Bench; if not, and in case of disagreement with the concurrent findings of the two Judges, should the third Judge refer the appeal to be heard and decided by a larger Bench.

5. Ratio Decidendi

A. The phraseology of Section 392 CrPC is significantly different from Section 429 of the 1898 Code (Paras 9-11, 29-34).

The Court noted that Section 429 of the 1898 Code used the words "the case" to be laid before another Judge. Section 392 of the 1973 Code uses the words "an appeal" and then "the appeal". The Court engaged in grammatical interpretation: "an" is an indefinite article, "the" is the definite article. "An appeal" refers to any appeal under Chapter XXIX heard by a Division Bench that results in a divided opinion. "The appeal" refers back to that specific appeal in which the disagreement has occurred. The Court held that the anaphoric use of the definite article is significant: it limits the reference to the particular appeal where division of opinion exists. In a composite appeal by multiple convicts, if there is unanimous agreement on the guilt of some accused, their appeals stand dismissed; only the appeal of the accused in respect of whom there is a division of opinion should be referred to the third Judge.

B. The third Judge cannot reopen matters on which the Division Bench was unanimous (Paras 21-27, 35-37).

The Court reasoned that while the siblings filed a composite appeal, in law each convict had individually appealed to the High Court under Section 374(2) CrPC. The judgments of Bhanwar Singh, J. and Devi Prasad Singh, J. unanimously dismissed the appeals of Anil and Ajay. There was no division of opinion on their conviction. Therefore, their appeals stood dismissed. The reference to the third Judge could only be in respect of Atul, on whom there was a disagreement. The third Judge exceeded his jurisdiction by re-opening the appeals of Anil and Ajay which had already been conclusively dismissed.

C. The decision in Sajjan Singh (supra) is doubted and referred to a larger Bench (Paras 14-16, 40-42).

The Court expressed respectful disagreement with the view in Sajjan Singh that the third Judge can examine the whole case independently and is not bound by the unanimous conclusions of the two Judges. The Court observed that Sajjan Singh did not advert to the anaphoric use of the definite article in Section 392. It also noted that accepting Sajjan Singh could lead to irrational and anomalous results, illustrated by two hypotheticals: (i) where two Judges unanimously agree to acquit two accused but differ on a third, the third Judge could potentially convict all three, reversing the unanimous acquittal; (ii) in a State appeal against acquittal, where two Judges agree that two accused were correctly acquitted but differ on a third, the third Judge could convict all three. Such a result would be contrary to judicial propriety and fairness. The Court, therefore, referred the question of whether Sajjan Singh lays down correct law to a larger Bench to be constituted by the Chief Justice.

D. The appeals are not finally decided; they will be laid before an appropriate Bench after the larger Bench delivers its opinion (Paras 41-42).

The Court reserved its answers to the second and third questions. The appeals were directed to be laid before an appropriate Bench for pronouncing the final judgment after the larger Bench delivers its opinion on the correctness of Sajjan Singh.

6. New Legal Principles Established / Reiterated

• In a composite criminal appeal filed by multiple convicts, each convict exercises an individual right of appeal under Section 374(2) CrPC. The consolidation of multiple appeals into one memorandum of appeal does not erase the separate identity of each appeal.

• Where two Judges of a Division Bench are unanimous on the guilt or innocence of a particular accused, their decision on that accused becomes final and cannot be reopened by a third Judge to whom the matter is referred under Section 392 CrPC only because there is a difference of opinion on another accused.

• The definite article "the" in Section 392 ("the appeal") refers back to the specific appeal of the accused in respect of whom there is a division of opinion. It does not encompass appeals of other accused on whom there is unanimity.

• The decision in Sajjan Singh v. State of M.P. (1999) is doubted on the ground that it did not consider the anaphoric use of the definite article and may lead to irrational and anomalous results. The correctness of Sajjan Singh is referred to a larger Bench.

7. Court’s Examination and Analysis

The Court first traced the factual matrix, noting the unanimous affirmation of conviction of Anil and Ajay by both Judges, and the difference of opinion only on Atul. It then examined the reference order and found that the Division Bench had directed that "this appeal" be laid before another Judge. The Court interpreted this as referring only to the appeal of Atul, as there was no division on the appeals of Anil and Ajay.

The Court then undertook a detailed comparison of Section 429 of the 1898 Code and Section 392 of the 1973 Code. It noted that the change in language from "the case" to "an appeal" and "the appeal" was deliberate. Using principles of statutory interpretation, the Court held that "an appeal" sets up the class, and "the appeal" picks out the individual instance from that class. Therefore, the reference is confined to the specific appeal where the division of opinion exists.

The Court expressed concern over the potential for abuse if Sajjan Singh were followed. It gave two hypothetical examples to illustrate that a third Judge could, under the guise of independent examination, overturn unanimous findings of two Judges on other accused, leading to grave injustice. The Court also noted that if separate appeals had been filed, the appeals of Anil and Ajay would have been finally dismissed, and only Atul’s appeal would have been referred. A composite appeal should not give a different result; otherwise, it would violate Article 14 by discriminating between convicts who file separate appeals and those who file a composite appeal.

The Court recorded its respectful disagreement with Sajjan Singh and referred the matter to a larger Bench. The appeals were not finally disposed of; they were directed to await the larger Bench's opinion.

8. Critical Analysis

Strengths: The judgment is a masterful exercise in statutory interpretation, giving due weight to the change in phraseology from the 1898 Code to the 1973 Code. The grammatical analysis of the indefinite and definite articles is precise and persuasive. The Court correctly identifies the danger of allowing a third Judge to override unanimous findings on other accused when the reference arises only from a disagreement on one accused. The hypothetical examples illustrate the anomaly vividly. The reference to a larger Bench is appropriate given that Sajjan Singh has been followed for over 25 years, and reconsideration by a coordinate Bench of the same strength is not permissible; a larger Bench is required.

Potential concerns: The Court did not finally decide the appeals, leaving the parties in limbo pending the larger Bench’s decision. However, given the importance of the legal question, reference to a larger Bench was necessary. Another concern is that the Court did not explicitly overrule Sajjan Singh but expressed doubt and referred it. The larger Bench may affirm Sajjan Singh, in which case the third Judge’s order would be valid. That is a possibility, but the present Bench has provided strong reasons for doubting its correctness.

Practical impact: This judgment will be cited in all cases where a composite criminal appeal leads to a reference to a third Judge under Section 392 CrPC (or corresponding provision under BNSS). It will encourage High Courts to treat composite appeals as separate appeals for the purpose of reference. It also opens the door for reconsideration of Sajjan Singh by a larger Bench, which may settle the law on this point definitively.

9. Final Outcome

The appeals were not finally decided; the matter was referred to a larger Bench.

• The Supreme Court recorded its respectful disagreement with the decision in Sajjan Singh v. State of M.P. (1999) 1 SCC 315.

• The question of whether Sajjan Singh lays down correct law was referred to a larger Bench to be constituted by the Hon'ble the Chief Justice.

• The Court reserved its answers to the questions framed in paragraph 8 (ii) and (iii) of the judgment.

• The appeals (Criminal Appeal Nos. 2372/2026 and 2373/2026) were directed to be laid before an appropriate Bench for pronouncing the final judgment after the larger Bench delivers its opinion.

• The matter was kept pending.

10. Practical Application

For convicts filing a composite appeal: Be aware that if you file a composite appeal along with co‑accused, and the Division Bench is unanimous on the guilt of some co‑accused but divided on you, the third Judge may not be able to re‑examine the cases of those co‑accused on whom there was unanimity. However, after this judgment, the position is uncertain pending the larger Bench decision. If you wish to avoid the risk of the third Judge overturning a unanimous acquittal (or unanimous conviction) of co‑accused, you may consider filing separate appeals.

For High Courts dealing with a reference under Section 392 CrPC (or Section 469 BNSS): Before referring a composite appeal, identify which accused are the subject of disagreement. If there is unanimity on some accused, their appeals should be treated as finally decided, and only the appeal(s) of the accused on whom there is division should be referred to the third Judge. The reference order should clearly specify the scope of the reference.

For third Judges receiving a reference: Scrutinise the reference order. If the reference order indicates that only the appeal of a particular accused is being referred (or that there is unanimity on others), confine your opinion to that accused. Do not re‑examine the cases of accused on whom the Division Bench was unanimous. If the reference order is ambiguous, seek clarification from the Division Bench or the Chief Justice.

For lawyers arguing before the Supreme Court on a reference under Section 392: If the case involves a composite appeal where the third Judge has overturned unanimous findings on other accused, rely on the reasoning in this judgment (prior to the larger Bench decision) to argue that the third Judge exceeded his jurisdiction. However, note that the larger Bench may affirm Sajjan Singh, so be prepared to argue both sides.

For the larger Bench that will decide the correctness of Sajjan Singh: Consider the following: (i) the grammatical interpretation of "an appeal" versus "the appeal" in Section 392; (ii) the potential for anomalous results if the third Judge can re‑open unanimous findings on other accused; (iii) the principle that a composite appeal is a procedural convenience and should not alter substantive rights; (iv) the need for finality in criminal judgments; (v) the distinction between civil appeals (where majority opinion prevails) and criminal appeals under Section 392. A ruling that restricts the third Judge to the point of disagreement would promote fairness and prevent abuse.

11. Court Lines

Line 1 (Difference in phraseology – Para 29):
“The difference in phraseology of Section 429 of the 1898 Code and Section 392 of the 1973 Code is significant. While Section 429 dealt with 'the case', Section 392 opens with 'an appeal' and it is closely followed by 'the appeal'.”

Line 2 (Grammatical interpretation – Para 30):
“'A', 'an' and 'the' are all articles. While 'a' and 'an' are indefinite (also called indeterminate) articles, 'the' is the definite article... 'An appeal' which opens the scope applies to any appeal under Chapter XXIX that is heard by a Bench and results in a divided opinion and 'the appeal' narrows to the specific appeal where such division has occurred.”

Line 3 (Separate identity of appeals – Para 27):
“Though the siblings, in the present case, chose to jointly appeal to the High Court by presenting a composite appeal, in effect, there were three appeals before the High Court by the siblings rolled up in one memorandum of appeal giving rise to registration of a single criminal appeal.”

Line 4 (No division on Anil and Ajay – Para 25):
“Bhanwar Singh and Devi Prasad Singh, J. having concurred with the ASJ insofar as the conviction and sentence under challenge at the instance of Anil and Ajay are concerned... the conviction and sentence under challenge were confirmed and the appeals at the instance of Ajay and Anil stood dismissed without any disagreement.”

Line 5 (Hypothetical anomaly – Para 36):
“If the appeals of all the three convicted appellants are placed before the third Judge consequent upon division of opinion only in respect of one convict, all three would run the risk of being convicted by the third Judge notwithstanding that in respect of two of the convicted appellants, the Judges are ad idem that they are entitled to be acquitted. This, effectively, would result in the third Judge reversing the unanimous acquittal recorded by two Judges of a Division Bench of the same high court.”

Line 6 (Respectful disagreement with Sajjan Singh – Para 41):
“Thus, while recording our respectful disagreement with the view expressed in Sajjan Singh (supra), we refer the question as to whether Sajjan Singh (supra) lays down correct law for decision to a larger Bench of such strength, as the Hon'ble the Chief Justice may constitute.”

Line 7 (Appeals to await larger Bench – Para 42):
“These appeals may be laid before an appropriate Bench for pronouncing the final judgment thereon, after the larger Bench delivers its opinion.”

12. Legal Strategy Insight

For a convict who is part of a composite appeal where the third Judge has acquitted co‑accused on whom there was unanimity: If the third Judge’s order is favourable to you (i.e., you were acquitted), you will want to defend it. Argue that Sajjan Singh is good law and that the third Judge had the power to examine the whole case independently. The present judgment has not overruled Sajjan Singh; it has only referred it to a larger Bench. Pending the larger Bench decision, the third Judge’s order remains valid. The Supreme Court has not set aside the acquittal; it has only kept the appeals pending. Therefore, you should seek to have the appeals dismissed or, at the very least, seek continuation of your bail status.

For a complainant or State challenging a third Judge’s order that acquitted co‑accused on whom there was unanimity: Argue that the third Judge exceeded his jurisdiction. Rely on the grammatical interpretation of Section 392 in the present judgment. Emphasise that the reference order should be construed as referring only the appeal of the accused on whom there was disagreement. If the reference order was ambiguous, argue that the proper course for the third Judge was to seek clarification, not to assume jurisdiction over other accused. Also, argue the anomaly that a composite appeal would give a different result than separate appeals, which violates Article 14.

For a High Court judge receiving a reference under Section 392: Before proceeding, examine the judgments of the two Judges to identify precisely where the division of opinion lies. If the division is only on one accused, and there is unanimity on others, issue a notice to the parties to clarify whether the reference encompasses only that accused. If the reference order is clear that the entire appeal is being referred, you may be bound by the reference, but you can note your disagreement with the scope and request the Chief Justice to refer the matter to a larger Bench on the scope question itself.

For a lawyer drafting a composite appeal: Consider whether it is advantageous to file separate appeals instead of a composite appeal. If you file separate appeals, the dismissal of one appeal will not affect the others. If you file a composite appeal, and there is a division of opinion on one accused, the third Judge (under Sajjan Singh) may re‑examine all accused, which could be beneficial if you believe the unanimous findings on others are also weak. However, after this judgment, that position is uncertain. Consult with co‑accused and weigh the risks.

For the larger Bench that will reconsider Sajjan Singh: The key question is whether Section 392 CrPC (or the corresponding BNSS provision) was intended to allow a third Judge to override unanimous findings on other accused. Examine the legislative history, the 41st Report of the Law Commission, and the debates. Consider the practical consequences of both interpretations. Also, consider whether the proviso to Section 392 (allowing reference to a larger Bench if the third Judge so requires) provides a mechanism to avoid anomalies – the third Judge, if he finds himself disagreeing with unanimous findings on other accused, could refer the entire matter to a larger Bench rather than unilaterally overturning those findings. This would be a more balanced approach. The larger Bench may hold that the third Judge can examine the whole case but must, if he intends to differ on points of unanimity, first refer the matter to a larger Bench under the proviso. This would be a via media.