( 1 ) THESE three criminal appeals were posted for hearing before a Division Bench of this Court consisting of Chandrakantaraja Urs, J. , (since retired) and one of us (Jagannatha Hegde. J. ). They were divided in their opinion. In the circumstances, as provided under Section 392 of the Code of Criminal Procedure ('the Code' for short) by the order of Hon'ble the Chief Justice, the appeals were posted before one of us (Rama Jois, J), for healing. After hearing the matter, the opinion and the order was pronounced on 4-10-1991. In doing so reference was made to para 3 (ii) of the judgement to the two judgments of Calcutta High Court, namely, Nemal v. State of West Bengal, AIR 1966 Cal 194 : (1966 Cri LJ 522) and Jugal Kishore v. C. P. Magistrate, Calcutta. , AIR 1968 Cal 220: (1968 Cri LJ 604 ). In each of the two decisions, the third Judge who heard the criminal appeal in accordance with Section 429 of the 1898 Code, was of the view that in view of the language of that Section to the effect that the third Judge should deliver his opinion and that judgment and order shall follow such opinion, the third Judge should proceed to pass final orders. Following this ratio, opinion was furnished and an order was made following the opinion, on 4-10-1991.

( 2 ) IMMEDIATELY after the pronouncement of the order of 4-10-1991, the learned counsel for the accused made an oral application under Article 134-A of the Constitution of India praying for grant of certificate of fitness to appeal to the Supreme Court of India. He also made a written application praying for suspension of sentence as the accused-appellant was desirous of preferring an appeal to the Supreme Court. At this stage, in view of the submission made by Sri M. V. Devaraj, the learned Special Public Prosecutor that as according to the provisions of the Karnataka High Court Act, these appeals are required to be heard by a Division Bench the appropriate procedure to he followed, after the third Judge furnished his opinion was that the matter should be placed before the Division Bench and the Division Bench should make the order of the Court in conformity with the opinion of the third Judge. Considering that the course suggested by the Public Prosecutor was mare appropriate, the matter was directed to be placed before the Division Bench. Accordingly, it has come up for passing of the order of this Court.

( 3 ) THE question of law for our consideration is: what is the appropriate procedure to be followed after the third Judge gives his opinion under Section 392 of the Code? the relevant portion of Section 392 reads :"392. Procedure where Judges of Court of appeal are equality 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". The language of Section is in pari materia with Section 429 of the 1898 Code. It says that whenever two Judges hearing a criminal appeal are divided in their opinion, the matter should be placed before a third Judge and that he should give his opinion. Therefore, according to the Section the third Judge who hears the entire appeal, should give his opinion and that the judgment shall follow that opinion. The Section does not say that the third Judge who has given opinion should himself pass the order. All that the Section says is that the decision should follow that opinion.

( 4 ) ACCORDING to Section 10 of the Karnataka High Court Act, these are matters to be heard by a Division Bench. There is no dispute on that point. From this it follows that the final operative order of these appears should be passed by the Division Bench.

( 5 ) THERE are two reasons to support that view. They are : (I) Article 134-A of the Constitution provides that immediately after the pronouncement o

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