B SUBBAIAH Vs. STATE OF KARNATAKA

JUDGEMENT

(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 Ca1 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 :