SATWANT SINGH Vs. STATE

JUDGEMENT

(1.) When these matters were taken up for hearing. Mr. P. N. Lekhi, counsel for the appellant in Criminal Appeal No. 28 of 1986 raised a preliminary objection that under the provisions of the Criminal Procedure Code read with the rules of the High Court, a Full Bench cannot be constituted for hearing a criminal appeal or a murder reference.

(2.) The Code of Criminal Procedure deals with murder references in Chapter XXVIII. In this Chapter, section 369 provides that in every case submitted for 'confirmation of sentence of death to the High Court, "the confirmation of the sentence or any new sentence or order passed by the High Court, shall, when such Court consists of two or more Judges, be made, passed and signed by at least two of them". Section 370 provides that "where any such case is heard before a Bench of Judges and such Judges are equally divided in opinion, the case shall be decided in the manner provided by Section 392". Section 392 appears in Chapter XXIX which deals with appeals from judgments and orders of criminal courts. In this Chapter, provision relevant for our present purpose is Section 392 which reads as follows :

(3.) Mr. Lekhi contends that it is clear from the language of Section 392 that a criminal appeal has to be heard by a Bench of two Judges. According to him, it provides an important and valuable safeguard that, in the event of difference of opinion between the two Judges, the appeal can he re-heard by another Judge of the Court. Such a re-hearing will be a full fledged hearing, where it will be open to the parties to urge all contentions available to them, even though they may not have been urged before the original Bench. He further points out that, under the proviso of Section 392, it is also open to the original Bench or to the third Judge to direct that the appeal shall be re-heard and decided by a larger Bench. He contends that by constituting a Bench of three Judges in this case, this valuable vested right of the accused to have the appeal re-heard in case of difference of opinion, by a third Judge or by a larger Bench, is completely lost and this has caused grave prejudice to the accused in this case. Mr. Lekhi referred to a number of cases, decided on the language of Section 392, to contend that normally a criminal appeal is heard by a Bench of two Judges and that, advisedly, the legislature has made a provision which will enable the accused or the appellant to have a re-hearing in case of difference of opinion.