Legal Provisions of Section 392 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
The section applies only to cases where the Judges of the Court of appeal composing Division Bench are equally divided in opinion. Obviously, this section will not apply to cases where the difference is as regards the correctness or otherwise of earlier Division Bench decision of the same Court as it will need a reference to a larger Bench to be constituted by the Chief Justice of the High Court.
ADVERTISEMENTS:
Where there is a difference of opinion between the two Judges of the Appellate Court, their opinion is laid before a third Judge, and that Judge, after hearing as he thinks fit, shall deliver his opinion and the judgment of the Division Bench shall follow that opinion. The third Judge, to whom the matter in difference is referred, has to deal with that matter only and he has no power to re-open the entire case and convert an order of acquittal into a conviction.
The Supreme Court has clarified that the third Judge under this section will decide as to on what points he shall hear the arguments in order to resolve the difference of opinion between the two Judges of the Appellate Division Bench, and his opinion shall placed before the original Bench which shall pass final operative order on the basis of the opinion expressed by the third Judge.
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The third Judge is under no obligation to accept the view of one of the Judges holding in favour of acquittal of the accused either as a rule of evidence or on the score or judicial etiquette. This being the settled legal position, it is not possible to accept the contention raised by the learned counsel for the appellant that the third Judge should hold the view in favour of acquittal of the accused.