1. Their Lordships in the Division Bench could not reach a consensus as to the degree of culpability of Nagnarayan Sinha, appellant No.4, and therefore, by order dated 16-1-2013, the appeal was directed to be laid before third judge in terms or Sections 370 and 392 of the Code of Criminal Procedure, 1973 (for short 'the Code'). Order of reference reads thus,-

"There is a difference of opinion between us regarding Nagnarayan Sinha (A-4), whether he should be convicted and sentenced under section 4 of the Dowry Prohibition Act or under section 109 IPC for abetting crime under section 304-B IPC. In the light of sections 370 and 392 CrPC, our opinions in respect of Nagnarayan Sinha (A-4) be placed before third judge for his opinion."

2. By order dated 6-2-2013, Hon'ble the Chief Justice directed the matter to be placed before this Bench.

3. Section 392 of the Code reads as-

"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."

4. Law relating to the scope of powers and jurisdiction of third judge in reference under Section 392 of the Code is no longer res integra as the same has been settled by the Supreme Court in catena of decisions.

5. While dealing with the question of jurisdiction of the Bench hearing the appeal under Section 392 of the Code, the Supreme Court in the case of Tanviben Pankajkumar Divetia Vs. State of Gujarat (1997) 7 SCC 156, has held that in case of reference to third judge under Section 392 of the Code, the third judge is free to decide the appeal in the manner he thinks fit and he is not obliged, either as a rule of prudence or on the score of judicial etiquette, to accept the view of one of the Judges. The Supreme Court has observed in paras 5, 6 & 7 of the said judgment that:-

"5. The plain reading of Section 392 clearly indicates that it is for the third Judge to decide on what points he shall hear arguments, if any, and it necessarily postulates that the third Judge is free to decide the appeal by resolving the difference in the manner, he thinks proper. In Babu Vs. State of U.P. AIR 1965 SC 1467 : (1965) 2 SCR 771 it has been held by a Constitution Bench of this Court that where the third Judge did not consider it necessary to decide a particular point on which there had been difference of opinion between the two Judges, but simply indicated that if at all it was necessary for him to come to a decision on the point, he agreed with all that had been said about by one of the two Judges, such decision was in conformity with law. That the third Judge is free to decide the appeal in the manner he thinks fit, has been reiterated in Hethuba Vs. State of Gujarat (1970) 1 SCC 720 : 1970 SCC (Cri) 280 : AIR 1970 SC 1266 and Union of India Vs. B.N. Ananti Padmanabiah (1971) 3 SCC 278 : 1971 SCC (Cri) 535 : AIR 1971 SC 1836. In State of A.P. Vs. P. T. Appaiah (1980) 4 SCC 316 : 1980 SCC (Cri) 960 : AIR 1981 SC 365, it has been held by this Court that even in a case when both the Judges had held that the accused was guilty but there was difference of opinion as to the nature of offence committed by the accused, it was open to the third Judge to decide the appeal by holding that the accused was not guilty by considering the case on merit.

6. Where a case is referred to a third Judge under Section 392 CrPC, such Judge is not only entitled to decide on what points he shall hear the arguments, if any, but his decision will be final and the judgment in the a