Section 392 CrPC and Section 433 BNSS: When Appellate Judges Are Equally Divided

Section 392 of the Code of Criminal Procedure, 1973 prescribed how a High Court resolves a difference of opinion between judges hearing a criminal appeal. The corresponding current provision is Section 433 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

Text of Section 392 CrPC, 1973

Section 433 BNSS, 2023 - Current Corresponding Law

Section 433 BNSS, titled Procedure where Judges of Court of appeal are equally divided, contains the same operative rule. When judges on a High Court appellate Bench differ, their opinions and the appeal are placed before another judge of that High Court. After any hearing considered appropriate, that judge gives an opinion, and the judgment or order follows that opinion, subject to the larger-Bench proviso.

The official statutory text can be consulted in the India Code repository, the National Crime Records Bureau BNSS text, and the Bureau of Police Research and Development reference PDF.

How the Procedure Works

1. Difference of opinion: Judges hearing a criminal appeal in the High Court reach conflicting conclusions.
2. Reference to another judge: The appeal is placed before another judge of the same High Court along with the differing opinions.
3. Further hearing: The judge may conduct such hearing as considered fit and then deliver an opinion.
4. Final decision: Ordinarily, the appellate judgment or order follows the opinion of that judge.
5. Larger Bench: If a judge of the original Bench or the judge hearing the reference requires it, the appeal is reheard and decided by a larger Bench.

Meaning and Scope of the Provision

What does an equally divided Bench mean?

An equally divided Bench is one in which the judges hearing the appeal cannot agree on the outcome. The provision supplies a statutory mechanism for resolving the disagreement rather than leaving the appeal undecided.

Is a third judge always the final decision-maker?

Not necessarily. The ordinary procedure is a reference to another judge whose opinion determines the resulting judgment or order. The proviso expressly allows a rehearing and decision by a larger Bench when required by a judge specified in the provision.

Does the provision apply to every court?

No. Its express wording concerns appeals heard by a Bench of judges of a High Court. Other procedural rules may govern different judicial proceedings.

Is the old CrPC provision still relevant?

Yes, for historical decisions and for matters governed by statutory savings or transitional rules. Section 531 BNSS addresses repeal and savings; the applicable procedure depends on the status and timing of the particular proceeding.

Frequently Asked Questions

Which BNSS section corresponds to Section 392 CrPC?

Section 433 BNSS, 2023.

What happens if two High Court judges disagree in a criminal appeal?

The appeal and their opinions are referred to another judge of the High Court, unless the statutory larger-Bench procedure is invoked.

Can the appeal be heard again by a larger Bench?

Yes. The proviso permits a larger-Bench rehearing when one of the original judges or the judge receiving the reference so requires.

Official Legal References

• India Code - Central Acts and statutory texts
• BNSS, 2023 - NCRB statutory text
• BNSS reference publication - BPRD

This article provides general legal information. For a pending appeal, verify the applicable statutory text, transitional provisions, court rules and current judicial orders.