JUDGMENT

Prashant Kumar Mishra, J. - Crref No. 2 of 2017 is a reference under Section 366 of the CrPC for confirmation of death sentence awarded to accused Shankar Haldhar, who has been found guilty of committing offence under Section 302 (thrice) of the IPC with sentence of Death Sentence and fine of Rs.10,000/-, in default of payment of fine, additional RI for one year, as also under Section 27 (1) of the Arms Act with sentence of RI for 3 years and fine of Rs.5,000/-, in default of payment of fine, additional RI for 4 months.

2. Challenging the conviction and sentence, as afore-stated, the accused has preferred CRA No. 1963 of 2017. Both the matters were heard by the Division Bench comprising of Hon'ble Mr. Justice Pritinker Diwaker and Hon'ble Mr. Justice Sanjay Agrawal and reserved for judgment on 29.6.2018. The judgment was written by Hon'ble Mr. Justice Sanjay Agrawal maintaining conviction for both the offences and death sentence as well. When the judgment was placed for consideration before Hon'ble Mr. Justice Pritinker Diwaker, he agreed with the conviction part but differed on sentence part and proceeded to write his own judgment dealing only with the sentence part. Hon'ble Mr. Justice Pritinker Diwaker eventually maintained conviction for both the offences but converted death sentence under Section 302 to life imprisonment till the end of his life without remission. The Hon'ble Judges thereafter directed to place the matter before Hon'ble the Chief Justice on administrative side as required under Sections 370 and 392 of the CrPC for obtaining opinion of the third Judge in the matter. The matter has thus been referred to me by Hon'ble the Chief Justice for according opinion as required under Section 392 of the CrPC.

3. Before proceeding to deal with the matter, it would be appropriate to appreciate the scope and jurisdiction available to a Judge who is to deliver his opinion upon difference of opinion amongst the Judges of Court of Appeal.

4. Section 392 of the CrPC deals with the procedure where Judges of Court of Appeal are equally divided. The provision is reproduced hereunder for quick reference:-

"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."

5. The scope of provision under Section 392 CrPC has fallen for consideration before the Hon'ble Supreme Court in a catena of cases. I shall briefly refer to some of the judgments.

6. In Babu & Others Vs. The State of Uttar Pradesh, (1965) AIR SC 1467 , it is held that Section (392 CrPC) contemplates that it is for the third Judge to decide on what point he shall hear the arguments, if any, and that postulates that he is completely free in resolving the difference as he thinks fit.

7. In State of Andhra Pradesh Vs P.T. Appaiah and another, (1981) AIR SC 365 , the first Judge converted the offence from Section 302 to Section 304 Part-I of the IPC and the second Judge concluded that all the accused are liable to be convicted under Section 302/34 of the IPC. The third Hon'ble Judge to whom the matter was referred under Section 370/392 CrPC reached to altogether different conclusion by acquitting both the accused. Faced with this, the Hon'ble Supreme Court referred to the judgment in the matter of Bhagat Ram Vs State of Rajasthan, (1972) AIR SC 1502 to observe that "we are unable to agree that the learned third Judge in the instant case to whom it was referred under Section 429 overstepped the limits of hi