RAIYYANversusSTATE OF U.P.

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          HIGH COURT OF JUDICATURE AT ALLAHABAD
                     CAPITAL CASES No. - 12 of 2022

Raiyyan                                                                    Appellant

                                          Vs.

State of U.P.                                                            Respondent

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Counsel for Appellant                        Somya Chaturvedi, Sr. Advocate

Counsel for Respondent                       G.A., Sayyed Kashif Abbas Rizvi

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Court No. - 48

                        HON'BLE RAJIV GUPTA, J.
                        HON'BLE HARVIR SINGH, J.
                       (Per : Hon'ble Rajiv Gupta, J.)

1. Heard Sri G.S. Chaturvedi, learned Senior Counsel assisted by
Ms. Somya Chaturvedi, learned counsel for the appellant, Sri A.N.
Mulla, learned A.G.A. for the State, Sri Sayyed Kashif Abbas Rizvi,
learned counsel for the informant and perused the record.

2. The instant capital case was heard by us, however, on account
of respectful difference of opinion vide judgment and order dated
11.12.2025, the matter was referred to the Hon'ble The Chief
Justice for formation of an appropriate Bench to resolve the
difference of opinion under Section 392 Cr.P.C. Thereafter, Hon'ble
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The Chief Justice nominated and assigned the matter to the
Hon'ble Third Judge. The Hon'ble Third Judge, after going into the
records and other materials, has delivered his opinion allowing the
appeal vide judgment and order dated 31.03.2026.

3. In view of the opinion of Hon'ble Third Judge, the instant capital
case stands allowed and the conviction and sentence awarded to
the appellant is accordingly set-aside and the appellant is acquitted
of all the charges framed against him. The appellant has already
been set at liberty pursuant to an order dated 31.03.2026 passed
by Hon'ble Third Judge and as such, in view thereof, no further
orders are required to be passed for the release of the appellant.

4. Let a copy of this judgment and order alongwith trial court record
be transmitted to the trial court positively within two weeks for
necessary compliance.

                                                  (Rajiv Gupta, J.)


                 (Per : Hon'ble Harvir Singh, J.)

1. Heard Sri G.S. Chaturvedi, learned Senior Counsel assisted by
Ms. Somya Chaturvedi, learned counsel for the appellant, Sri
Sayyed Kashif Abbas Rizvi, learned counsel for the informant, Sri
A.N. Mulla, learned A.G.A. for the State and perused the record.

2. Pursuant to the judgement dated 11.12.2025, there was
disagreement between the learned brother Judges of the Division
Bench hearing the appeal initially, and the matter was referred for
third opinion before Hon'ble The Chief Justice. The Hon'ble Chief
Justice thereafter, nominated and assigned the matter to Hon'ble
Single Judge and the Hon'ble Single Judge after going into the
records and other materials has passed the judgment, whereby
allowing the appeal of the sole appellant at present. Subsequently,
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the matter was posted for further deliberations whatsoever, before
Division Bench (original) to decide the matter accordingly, in terms
of Section 392 Cr.P.C., which reads as under:-

Section 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."
3. Since the opinion of the third Hon'ble Single Bench, is that the
appeal has been allowed; After going through the order/ judgement
dated 31.3.2026, but without expressing any opinion on merit,
however having a careful reading, I express my respectful
disagreement with the judgment passed by the Hon'ble Single
Judge on 31.03.2026, under the circumstances, this matter is liable
to be referred to a larger Bench, as per the law, laid down by
Hon'ble Supreme Court in the following cases :-

(i). In the case of State Of U.P vs Dan Singh And Ors (1997);
1997 (3) SCC 747, the Hon'ble Apex Court held as under -

    Para-24 "When the appeal as a whole is heard by the
    third judge, he not only has an option of delivering
    his opinion but, under the proviso to Section 392 of
    the Code of Criminal Procedure he may require the
    appeal to be re-heard and decided by a larger bench
    of judges. This was an option which, under the
    proviso, was also open for any one of the two judges,
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    namely, B.N. Katju and Rajeshwar Singh, JJ. to
    exercise, but they choose not to do so."
(ii). In the case of Sajjan Singh vs State of Madhya Pradesh
(1998), 1999 (1) SCC 315, the Hon'ble Apex court reiterated the
same as under:

    Para-8 "When the appeal as a whole is heard by the
    third judge, he not only has an option of delivering
    his opinion but, under the proviso to Section 392 of
    the Code of Criminal Procedure he may require the
    appeal to be re-heard and decided by a larger bench
    of judges. This was an option which, under the
    proviso, was also open for any one of the two judges,
    namely, B.N. Katju and Rajeshwar Singh, JJ. To
    exercise, but hey choose not to do so."
(iii). The Hon'ble Apex Court in the case of          Tanviben
Pankajkumar Divetia vs State Of Gujarat (1997); 1997 (7) SCC
156, held as under:

    Para-4 "The Law Commission in the 41st Report had
    observed that if either of the Judges first hearing the
    appeal so requires or if after reference, the third
    Judge so requires, the case should be reheard and
    decided by a Bench of three or more Judges. This
    was incorporated in Clause 402 of the Bill. The Joint
    Select committee however substituted the words
    'larger Bench of Judges' for the words 'Bench of
    three or more Judges' occurring in clause 402.
    Section 392 reproduces the proviso as amended by
    the Committee."
392. "Procedure where Judges or 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
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    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."

(iv). The Hon'ble Apex Court in the case of Kunal Majumdar vs
State Of Rajasthan (2012); 2012 (9) SCC 320, held as under -

    Para-16 "when such Reference is heard by Bench of
    Judges and if they are divided in their opinion, the
    case should be decided in the manner provided under
    Section 392 as per which the case should be laid
    before another Judge of that Court who should
    deliver his opinion and the judgment or order should
    follow that opinion. Here again, under the proviso to
    Section 392, it is stipulated that if one of the Judges
    constituting the Bench or where the appeal is laid
    before another Judge,either of them, if so required,
    direct for rehearing of the appeal for a decision to be
    rendered by a larger Bench of Judges."
(v). In recent case of Pankajakshi (Dead) Through L.Rs. & Ors v.
Chandrika & Ors (2016); 2016 (6) SCC 157, the Hon'ble Supreme
Court held as under -

    Para-6 Under The Code of Criminal Procedure, 1973
    (for short, *the Cr.PC'), the position is slightly
    different. Section 392 reads as follows:
    392. Procedure when 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
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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."
Para-7 "The emerging position is that there is no
uniformity or clarity with regard to the Judge strength
in the event of difference of opinion, and according to
me, it has affected the purpose for which the matters
are required to be heard by a strength of more than
one Judge, be it a Division Bench or Full Bench
(Larger Bench)."
Para-9 "Under Section 392 of the Cr.PC, the situation
again is different. In case, the Division Bench is
divided in their opinion, the appeal with the opinions
should be laid before another Judge of that Court and
the appeal will be decided clearly on the basis of the
opinion rendered by that Judge hearing the matter
sitting alone. However, the proviso under Section 392
of the Cr.P.C. enables any one of the Judges of the
Division Bench or the third Judge to order the appeal
to be heard by a larger Bench of Judges."either of
them, if so required, direct for rehearing of the appeal
for a decision to be rendered by a larger Bench of
Judges."
"Para-10 "when two judicial minds sitting together
could not concur, that difficulty is to be resolved,
ideally, if not on common sense, not by a third one,
but by a Bench of larger coram."
Para-11 "In my humble view, if the purpose behind the
requirement of a matter to be heard by a Bench of not
less than two Judges is to be achieved, in the event
of the two Judges being unable to agree either on
facts or on law, the matters should be heard by a
Bench of larger strength. Then only the members of
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    the Bench of such larger strength would be able to
    exchange the views, discuss the law and together
    appreciate the various factual and legal positions.
    The conspectus of the various provisions, in my view,
    calls for a comprehensive legislation for handling
    such situations of a Bench being equally divided in
    its opinion, either on law or on facts, while hearing a
    case which is otherwise required to be heard by a
    Bench of not less than two Judges, both civil and
    criminal. It is for the High Court and the Legislature of
    the State concerned to take further steps in that
    regard."
4. In view of the above law position, this matter is referred to a
larger Bench for deliberations and further discussion in accordance
with the provisions enumerated under Section 392 of the Cr.P.C.
Consequently, the matter is now referred to the Hon'ble Chief
Justice for constituting a larger Bench for hearing and deciding this
appeal in accordance with the law.

5. Since the appeal of the accused-appellant was allowed by
Hon'ble Single Judge and the accused-appellant has been
released from jail thereafter.

6. Under the circumstances, the matter has been referred to
Hon'ble The Chief Justice for constituting a larger Bench, hence,
the accused-appellant, shall surrender before the learned Trial
Court within three weeks from today and he shall be taken into
custody and be sent to jail forthwith.

                                                 (Harvir Singh, J.)


                            (By the Court)

1. I have gone through the opinion expressed by Hon'ble Harvir
Singh, J., vide order dated 17.04.2026, however, in view of the
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express provisions contained under Section 392 Cr.P.C, which is
quoted herein-below:-

    "Section 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."
      it culls out that when an opinion has already been delivered
by the Third Judge allowing the appeal, then as per the provisions
contained in Section 392 CrPC, the instant capital case is liable to
be allowed and stands concluded and no further orders could be
passed referring the appeal to be re-heard and decided by a larger
Bench of Hon'ble Judges.

2. It is germane to point out here that controversy raised herein is
primarily based on interpretation of proviso contained under
Section 392 CrPC. It is germane to point out here that the said
provision has lucidly been interpreted by the Full Bench of Gauhati
High Court in the case of Nagen Das @ Balai Das Vs. State of
Assam reported in (1997) 2 Gauhati Law Reports 282, wherein
it has been held that :-

     13. A proviso is a provision or a portion of a clause in a
     statute, the function of which is either to exclude
     something from the enacting provision or to qualify or to
     limit its generality, or to leave out some "possible ground
     of misinterpretation". Difficulties can be avoided,
     according to Maxwell, by applying the general rule that
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     the words of a proviso are not to be taken "absolutely in
     their strict literal sense." One of the purpose of inserting
     of a proviso is to allay fears and eliminate apprehension.
     A proviso is to be considered in relation to the principal
     provision to which it stands as a proviso. It is to be
     harmoniously construed with the main Section. It should
     not destroy the main provision or another provision of
     the contemporaneous enactment. Lord Macmillan in
     Madras and Southern Maharatta Railway Co. v.
     Bezwada Municipality, 71 Ind App 113 laid down the law
     as follows:
      "The proper function of a proviso is to except and deal
      with a case which would otherwise fall within the general
      language of the main enactment, and its effect is
      confined to that case. Where, as in the present case, the
      language of the main enactment is clear and
      unambiguous, a proviso can have no repercussion on
      the interpretation of the main enactment, so as to
      exclude from it by implication what clearly falls within its
      express terms. The territory of a proviso therefore is to
      carve out an exception to the main enactment and
      exclude something which otherwise would have been
      within the section. It has to operate in the same field and
      if the language of the main enactment is clear it cannot
      be used for the purpose of interpreting the main
      enactment or to exclude by implication what the
      enactment clearly says unless the words of the proviso
      are such that is its necessary effect.
3. In the light of the aforesaid principles laid down for interpretation
of a particular provision, it is culled out that when an appeal under
this Chapter is heard by a High Court before a Bench of Judges
and they are divided in their opinion, then in that case, one of the
Judges of the Division Bench hearing the appeal, if so requires,
may refer the appeal to be heard by a larger Bench of Judges,
however, the aforesaid exercise is to be made before the appeal is
laid before the Third Judge for his opinion under the main
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enactment of Section 392 CrPC. Once the case is laid before the
Third Judge, the Third Judge alone is empowered by the Statute to
deal with the entire matter. Even at this stage, it will be open to the
Third Judge to refer the case to a larger Bench of Judges,
however, once the Third Judge after hearing the matter delivers his
opinion, then it would not be open to further refer the matter to the
larger Bench.

4. Thus, in the light of the aforesaid principles as discussed above,
in view of the difference of opinion between the two Judges of the
Division Bench, the matter has been referred to the Third Judge,
who, after going into the records and other materials, has delivered
his opinion vide order dated 31.03.2026, then, now at this stage,
the Bench of Judges can not get out of the same and refuse to
accept the opinion of the Third Judge and seek further reference to
the larger Bench. Thus, the judicial propriety demands that the
aforesaid aspects be referred for being answered by a larger
Bench.

5. The Registry is directed to place this matter before the Hon'ble
The Chief Justice for constituting a larger Bench to answer the
following questions :-

"(i). Whether a further reference to a larger Bench as contemplated
under Section 392 CrPC is well within the competence of a Bench
of Judges, after the Third Judge has delivered his opinion that may
or may not concur with either view of the original Division Bench ?

(ii) Whether after delivery of an opinion of the Third Judge, a Bench
of Judges can get out of the same and refuse to accept the opinion
of the Third Judge and seek further reference to the larger
Bench ?"
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                                    6. Till the aforesaid questions are answered by the larger Bench,
                                    order of release granted to the appellant vide order dated
                                    31.03.2026 shall remain in operation.
                                    April 17, 2026
                                    Nadim/Faridul
                                                                  (Harvir Singh, J.) (Rajiv Gupta,J.)




Digitally signed by :-
NADIM ALAM
High Court of Judicature at Allahabad