Section 433 BNSS: Procedure where Judges of Court of appeal are equally divided (Formerly Section 392 CrPC)

Section 433 of Bharatiya Nagarik Suraksha Sanhita, 2023: Procedure where Judges of Court of appeal are equally divided

Official Bare Act Text

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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.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Inquiry Sec 2(1)(g) Investigation Sec 2(1)(h) Victim Sec 2(1)(w)

Legal Commentary & Landmark Judgments: Section 433

Section 433 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 392 of the CrPC, 1973) dictates the procedure where the Judges composing the Court of appeal are equally divided in opinion, requiring the appeal to be laid before a third Judge.

Equal Division of Opinion: When an appeal under Chapter XXX is heard by a High Court Bench consisting of two Judges and they are equally divided in opinion.
Reference to Third Referee Judge: The appeal, with their opinions, shall be laid before another Judge of that Court.
Third Judge's Hearing & Judgment: Such Judge, after such hearing as they think fit, shall deliver their opinion, and the judgment or order shall follow that opinion.
Proviso for Larger Bench: If one of the Judges or the third Judge so requires, the appeal shall be re-heard and decided by a larger Bench of Judges.

Key Landmark Precedents:

Babu v. State of U.P., (1983) 2 SCC 21: The Supreme Court noted that the third Judge hearing the reference under Section 392 CrPC possesses full jurisdiction to examine the entire case de novo and is not bound by either of the differing views.
Pandurang v. State of Hyderabad, AIR 1955 SC 216: Held that the third Judge must independently weigh the evidence, and the existence of a split between the Division Bench judges is a relevant factor on the question of sentence.

Courtroom Practice & Strategic Litigation Guidance:

Before the third Judge, frame your submissions around the points of concurrence and dissect the dissenting opinion that favored your client, showing why its factual analysis is superior.