State v. Jhabra Ram: The Perils of Polyvocality?

On 28.10.2026, a Division Bench of the Supreme Court in State of Rajasthan v. Jhabra Ram [2026 INSC 1169] set aside bail granted in May 2026 by a Single Judge Bench of the Rajasthan High Court. 

What were the facts? Jhabra Ram was arrested on accusations of spying on his country, and sharing state secrets with the enemy state, Pakistan. He had been in custody for around four months, when the Rajasthan High Court allowed his bail petition on 18.05.2026. The High Court gave bail on a single premise: failure to furnish grounds of arrest in writing to the accused at the time of his apprehension or his remand, citing Supreme Court decisions as casting a binding obligation upon police to do so. It rejected arguments on behalf of the state that there had been sufficient compliance with this mandate as seen from certain other documents, and reasoned that in cases with such serious accusations "strict adherence to the constitutional and statutory safeguards governing arrest assumes even greater significance" (Para 22). 

The Supreme Court reversed, finding that there was "substantial and effective compliance" with the legal mandate of communicating grounds of arrest in the facts of the case basis those other documents (the arrest memo and case diary entries) (Para 16). It held that "a hyper-technical objection regarding the form or mode of communicating the grounds of arrest cannot be treated as a self-executing, blanket key to unlock regular bail, bypassing the core parameters governing bail jurisprudence" (Para 17). Citing its decision in Sri Darshan [2025 INSC 979], the Court stated that the correct approach when dealing with alleged "procedural" failures in conveying grounds of arrest was a "prejudice-oriented test" (Para 19). Here, no prejudice was caused to the accused as there had been substantial and effective compliance.

There are two problems with how the Supreme Court has reversed. 

First, declaring the prejudice-oriented test is "definitively" the approach when dealing with any dispute about communicating grounds of arrest is more an act of judicial conjuring than reasoning. There is only one decision which lays down a prejudice test in this context of supplying grounds, Sri Darshan, and even that case had very distinct facts. At a later stage (Para 22), the Court also cited Kasireddy in support of this idea, which is plainly incorrect. 

If anything, the definitive approach is a strict adherence test, requiring demonstration that grounds of arrest have been communicated. In favour of this we can cite Vihaan Kumar v. State of Haryana & Anr. [2025 INSC 162 (February, 2025)], Kasireddy Upender Reddy v. State of Andhra Pradesh [2025 INSC 768 (May, 2025)], and Mihir Rajesh Shah v. State of Maharashtra & Anr [2025 INSC 1288 (November, 2025)]. Mihir Rajesh Shah put the controversy about mode of communication to rest, clearly holding that grounds of arrest must be communicated in writing to an accused, and stipulated the contours of how this rule would be applied. The logic of that decision focused upon the aspect of this being a constitutional mandate, requiring clear bright lines enforceable by a magistrate to avoid any debate. Mihir Rajesh Shah has been treated as binding and unequivocal by subsequent benches of the Supreme Court. None of them introduced, or reintroduced, any prejudice based test on the question of supplying grounds of arrest or narrowed down the requirement for furnishing these grounds in writing. 

A mention of prejudice came in State of Meghalaya v. Sonam Raghuvanshi which was authored by the same bench that decided Jhabra Ram [July 2026]. It was another case reversing grant of bail on non-communication of grounds of arrest. There, the bench held that considerations of prejudice were relevant to determine whether grounds so conveyed lacked material particulars, not the issue of whether written grounds had been furnished or not. On the latter question it held that Mihir Rajesh Shah laid down a clear, albeit prospectively applicable, test requiring the supply of written grounds of arrest. From using a prejudice based test to decide questions about sufficiency of the grounds of arrest to using a prejudice test to decide the question of supply of grounds of arrest is a big shift made in Jhabra Ram. It has been done by turning to an earlier decision in Sri Darshan, without explaining or reading down the later view taken in Mihir Rajesh Shah unequivocally mandating the supply of written grounds of arrest. 

The second problem in the Court's reasoning is equating the grounds of arrest issue with what it called the "core parameters" of bail jurisdiction. The former is a constitutional obligation cast upon state authorities, flowing from Article 22 which is a fundamental right. The latter is exercise of judicial discretion under a statute. In cases where non-compliance with a constitutional mandate is found on facts, it must override judge-made considerations for exercise of statutory discretion. Again, this aspect was at the forefront of the reasoning in Mihir Rajesh Shah and prompted the bench to lay down clear bright lines to put this issue beyond debate in hearings before a magistrate. Instead, what the Court does in Jhabra Ram is to treat the constitutional issue as being one factor within the wider matrix of judicial discretion while granting bail. Doing so allows it to transform a clear, unflinching rule, which mandates strict compliance and grants bail even in otherwise bad cases, into a fuzzy standard which becomes one out of the many factors which must be considered and balanced while exercising discretion, thereby retaining greater autonomy for courts.       

Jhabra Ram is a classic instance of bad facts making bad law at the Supreme Court, and the tendency of courts to favour outcomes which retain maximum scope for judicial discretion. The accusations of spying on one's own country for the enemy state were facts which made bail seem an impossibility on the "core parameters" that the Court had identified. The documents referred to in the High Court and Supreme Court orders suggest that the accused was given an idea of why he was arrested, but there were admittedly no written grounds of arrest furnished to him. This meant the rule set out in Mihir Rajesh Shah had been breached. Viewed in this light, strict compliance with a legal rule on furnishing written grounds of arrest turned an otherwise undeserving case for bail into one where relief had to be granted. It may be easy to understand this thought process which may have animated the reasoning behind Jhabra Ram. None of it makes it justifiable, or correct. 

This is when the contrast between how the High Court and Supreme Court dealt with this scenario appears most stark. The High Court knew the rule, asked whether it was complied with, and held that in serious cases there should be no room for doubt about compliance with constitutional law by state authorities. In the Supreme Court order, no questions are asked as to why a clear rule laid down by the Court itself in November 2025 was not complied with by police in an arrest of January 2026. The Court did not create a singular exception to its rule citing the facts or "attendant circumstances" to deny bail in the case. Instead, the rule itself became negotiable. As a result, a legal mandate — furnish grounds of arrest in writing — settled in November 2025 by one bench of the Court is again open to contestation by November 2026, because another bench of the Supreme Court was uncomfortable about the consequences that flowed in one case from strict adherence to a rule. The perils of polyvocality, I suppose. 

To the extent it seeks to undermine the clear mandate of written grounds of arrest in Paragraph 22 ["... the constitutional framework requires that an arrestee be informed of the grounds of arrest but does not insist upon written communication as an indispensable formality irrespective of the attendant circumstances. In the absence of demonstrable prejudice or denial of an opportunity to defend, an alleged procedural defect in the mode of service cannot ipso facto invalidate detention ..."], Jhabra Ram is arguably laying down an incorrect proposition of law and ought not to be followed as precedent.

Guest Post: Hash-Tagged, Not Verified - What Section 63’s Hash Value Cannot Prove

(This is a guest post by Ratyansh Garg)

On 22 September 2026 the defendant in BPTP Ltd v. Nitin Naresh told the Delhi High Court that a twelve-minute recording of him allegedly demanding money was “in all probabilities a mere AI generated cloned recording of his voice”. Rather than decide the point on the papers, the Court sent the recording to the Central Forensic Science Laboratory “for the purpose of ascertaining the truthfulness and veracity of the recording as also to ascertain the hash value”.

The order treats the truth of the recording and its hash value as two questions. Four months earlier the Supreme Court treated the hash as answering both. Disposing of a challenge to section 63(4) of the Bharatiya Sakshya Adhiniyam 2023 (BSA) in Pune Bar Association v. Union of India, the Court began from the threat that “artificial intelligence and deepfake technology” pose to electronic evidence. It described a hash value as “synonymous with an electronic fingerprint” that and reasoned that the expert’s certification in Part B “provides an additional layer of authenticity”.

This post argues that the Court in Pune Bar asked more of the hash than it can give. A matching hash shows integrity: the file before the court is bit-for-bit the file that was hashed. It says nothing about authenticity, or veracity, whether that file is a genuine record of what it appears to show, which is the relevant inquiry for deepfakes. Conflating the two attributes makes admission costlier for honest litigants and stamps an expert’s signature on records whose veracity no one has verified.

What Section 63(4) BSA now asks for

Section 65B(4) of the Evidence Act required a certificate signed by a person “occupying a responsible official position” in relation to the device. Section 63(4) of the BSA adds three things. The certificate must accompany the record “at each instance where it is being submitted for admission”; it must follow the form in the Schedule; and it must be signed by the person in charge of the device “and an expert”. Part A of the Schedule, filled in by the party, identifies the device, makes sworn declarations about its regular use and proper working, and states the record’s hash value, with a choice of “SHA1”, “SHA256”, “MD5” or “Other”. Part B, filled in by the expert, restates the device particulars and the hash value. As Sulaiman observed, all the expert’s certificate does is “merely replicate the information already provided in Part A”. Beyond the party’s own declarations, neither Part asks anyone to examine whether the record is genuine.

The Court disposed of the petition without issuing notice to the Union, and kept open the question of who may sign Part B. Sekhri has called its reasoning “a lazy recitation of an old logic of tampering”. The present argument is narrower: The order’s premise about what a hash establishes is itself mistaken. 

Integrity is not Authenticity

A cryptographic hash function reduces a file to a fixed-length string. Change a single bit and, the result is “a completely different message digest”. Comparing the hash of a copy with that of the original therefore tells a court whether the copy is identical, and nothing more. The Scientific Working Group on Digital Evidence, a US forensic standards body, explicitly states: “hashing files does not protect against manipulation of evidence before it is hashed”, and “the only way to manipulate the evidence without detection is to do it before it is hashed” (SWGDE, 2019).

Take a shop owner who fabricates CCTV footage of a burglary and hashes the fabricated file. Every later copy will match, and the hash values in Part A and Part B will be accurate. Part A’s declaration that the footage was produced in the ordinary course will be false, but nothing in the certificate tests it, and Part B will certify the fingerprint of a fake. The same holds for a cloned voice note or a doctored screenshot. A hash taken at a trusted moment, such as seizure, does rule out tampering after that moment. Whatever was false before it stays false, now with a matching fingerprint. Mishra made the same point before Pune Bar: section 63 “might act as a safeguard to detect tampering with e-record but it does not vouch for the legitimacy of e-evidence”.

Indian evidence law has long treated tampering as only one of several questions. Ram Singh v. Col Ram Singh set six conditions for tape recordings: the speaker’s voice be identified; accuracy of the recording be proved; “every possibility of tampering with or erasure” be ruled out; and the cassette be sealed and kept in official custody. A hash act as a seal, ruling out alteration after hashing. However, it says nothing about whose voice is on the recording, whether the recording is accurate, or whether it was altered before it was hashed. In Himanshu Chordia v. State of Rajasthan, decided ten weeks after Pune Bar, the Supreme Court asked if photographs sought to be adduced were “genuine pictures” or “doctored using technological advancements”, and observed: “Verification within the meaning of Section 65B of the Evidence Act, 1872… is not the only issue.”

The conflation predates Pune Bar. The Karnataka High Court’s guidelines in Umesh v. State of Karnataka (2022) preferred “cryptographic analysis by hash value method” over spectrographic analysis for assessing “the reliability and authenticity of an electronic document”. Ironically, while spectrography can help identify a speaker; a hash cannot. The Madras High Court in Yuvaraj v. State (2023) directed hash values to be recorded at four stages, reasoning that matching values “would ensure its authenticity”. A Delhi magistrate in State v. Satwant Rao, post Pune Bar, wrote that a hash “assists in verifying the authenticity and integrity of the electronic record”. Careful commentary reads the Schedule the same way, as giving “a more meaningful assurance of the genuineness” of the record (Verma, NLSIR 2025). A trial judge handed a certificate by an “expert” will likely read it as an authenticated forensic finding, which it is not.

A Weaker Fingerprint than the Court assumed.

First, the Schedule offers MD5 and SHA-1. As of now, both have low collision resistance. The Internet Engineering Task Force said in 2011 that MD5 “is no longer acceptable where collision resistance is required” (RFC 6151), and the National Institute of Standards and Technology, under the US Department of Commerce, has announced that SHA-1 should be phased out by 2030 because “collision” attacks “have been used to undermine SHA-1”. These attacks do not let an outsider alter a file that someone else has already hashed; no practical attack of that kind exists. They let a person who controls a file before hashing prepare two different files with the same hash. Forensic practice still accepts MD5 and SHA-1 for integrity checks because “technical and procedural controls during the data collection process” guard against manipulation before hashing (SWGDE, 2019). Part A under has no such controls: the party hashes its own file, and the Schedule lets it hand-pick the weakest algorithm. The practical risk is narrow, since a fabricator who knows that no one examines the content need not bother with collisions at all. But a form whose hash value is treated as an “electronic fingerprint” should not list algorithms that standards bodies have abandoned wherever collision resistance matters.

Second, hashes are brittle in the other direction. A photograph sent on WhatsApp at standard quality is compressed before it is sent, and CCTV footage is often exported in a converted format. The resulting files differ from originals bit-for-bit and so carry different hashes, though no one has tampered with them. A mismatched hash does not prove tampering, just as a matching hash does not prove genuineness. A test that is neither necessary nor sufficient for genuineness is a poor gatekeeper of it.

The Cost at the Gate

None of this would matter much if the certificate were easily accessible, which it is not. Only government bodies can be notified as Examiners of Electronic Evidence under section 79A of the IT Act, and in July 2026 there were reportedly “just 21” of them. Pune Bar suggested that a person with “special skill and expertise in computer science and cyber forensics” may sign Part B if the court is satisfied, but declined to decide the point. Courts have responded unevenly. The Delhi High Court has regularly granted exemptions and extra time for hash and expert certificates (here, here and here). A Delhi civil court held a document inadmissible for want of a section 63 certificate (Devender Kumar v. Gurmeet Singh), and a commercial court held that Pune Bar was inapplicable to commercial suits. (Panasonic Life Solution v. Dinesh Kumar). As Mayank Khichar and Makhija and Sharma argue, the burden falls hardest on private litigants and the defence.

A Wrongly Borrowed Provision, and the Wrong Cure

Section 63 inherits an old problem. As Nariman J noted in Arjun Panditrao Khotkar, section 65B “has its genesis in Section 5 of the Civil Evidence Act 1968 (UK)”. The UK itself repealed that provision with effect from 1997, more than three years before India copied it, and removed its criminal counterpart, section 69 of the Police and Criminal Evidence Act 1984, in 2000. In the same case Ramasubramanian J. called for “a relook at Section 65B”, and the Madras High Court in Yuvaraj said there “could be no better instance of fitting a square peg into a round hole”. The BSA’s response was to add an expert and a hash to the peg. In UK criminal cases, once section 69 went, courts fell back on a common law presumption that, absent evidence to the contrary, “mechanical instruments were in order at the material time”. That presumption too is now under review because of the Post Office scandal, in which sub-postmasters were convicted on data from a system later found to be “not remotely robust” (Hamilton v Post Office). 

What Should Replace it?

The BSA’s validation of electronic evidence can significantly improve with three changes: First, courts must treat a Section 63 certificate as going to integrity alone: as evidence that a copy matches the record that was hashed. Moreover, Courts liberally exempt the production of the s.63(4) certificate. While Arjun Panditrao calls it a condition precedent, it permits a certificate to be produced at any stage before the trial ends. The Delhi High Court also treats a missing certificate as a curable issue, granting time for cure. 

Second, once a party establishes serious doubts to the record’s genuineness, the dispute should go where BPTP sent it: to a forensic examiner under section 39. For deepfakes, the US Advisory Committee on Evidence Rules is discussing a separate draft rule under which the opponent must first produce evidence sufficient to support a finding of fabrication, and the proponent must then show that the item is more likely than not authentic. Such inquiries can use metadata, device logs, detection software, and provenance metadata that India’s amended IT Rules have, since February 2026, required intermediaries to embed in synthetic content made with their tools. But detection tools should serve as evidence, not as certification. Open-source detectors lost about half their performance on deepfakes circulating in 2024 (Deepfake-Eval-2024), and people themselves do little better than chance. Turning a detector’s output into a new admissibility “certificate” would repeat the mistake this post describes.

Third, Parliament should amend Section 63(4) and the Schedule, removing MD5 and SHA-1, requiring the hash to be recorded at the earliest practicable moment: automatically at seizure where systems such as e-Sakshya allow it, and otherwise when the record is first tendered, as the Delhi High Court’s Original Side Rules already require. Then, dropping the filing-stage expert signature reduces costs while losing little, since the expert only checks against tampering while copying anyway.

Guest Post: Settling the Split — The Argument for Mandatory Rehearing under Section 392

(This is a guest post by Atulit Subramanian)

This piece concerns the debate surrounding Section 392 of the Code of Criminal Procedure, 1973 (“CrPC, 1973”) [429 of the Code of Criminal Procedure, 1898 (“CrPC, 1898”) and 433 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”)], which was most recently examined by the Supreme Court in Rakesh Kumar Gupta v. State of UP (“Rakesh Gupta”). This provision outlines the procedure to be followed in case of an equally split disagreement between judges of a division bench, wherein a third referee judge must be consulted to resolve the split and deliver the judgement.

In Rakesh Gupta, the Court framed three questions for consideration. First, whether the referee judge is empowered to deliver a judgement disagreeing with opinions of both other judges; Second, whether a referee judge is only empowered to deliberate on the points of disagreement between the other judges; and Third, whether the referee judge must compulsorily refer the matter to a larger bench in case of a disagreement with a unanimous finding of both judges (¶ 8). These questions came up in light of reversal of a concurrent finding of both judges regarding acquittal of an appellant by a referee judge, despite the disagreement having to do with another appellant altogether, in a composite appeal filed (¶ 3).

The Court only ruled on the first question, maintaining that a referee judge is empowered to do so, while the remaining two questions were referred to a larger bench (¶ 9, ¶ 41). However, strong opinions were presented as to the correctness of the ruling in Sajjan Singh v. State of M.P (“Sajjan Singh”), with the Court hinting favourably towards curtailing the power of the referee judge to only the points of disagreement.

This piece, however, argues that while the referee judge must have the power to examine any question within ambit of the appeal, any disagreement with concurrent findings of other judges must result in a mandatory re-hearing before a larger bench. It proceeds in three parts. First, the argument that the textual difference between Section 429 of CrPC, 1898 and 392 of CrPC, 1973 acts in favour of curtailing the referee judge’s ambit is rebutted. Second, the unanswered question of a potential Article 14 (“Art.14”) violation is dealt with. Third, the method to interpret the statute is established.

The Case v. The Appeal

Under 429 CrPC, 1898, the text of the provision used the term “the case” and not “the appeal”. However, this was subsequently changed to “the appeal” in 392 of CrPC, 1973, which remains in 433 of the BNSS. In Rakesh Gupta, the Court argued that the non-examination of this shift in Sajjan Singh, the leading authority to support the unfettered discretion of the referee judge, rendered it plausibly incorrect (¶ 34). In doing so, the Court aimed to establish that the usage of the term “the appeal” following “an appeal” is anaphoric, and therefore must be read to confine the discretion of the referee judge to the specific appeal in disagreement only (¶ 32). 

However, this interpretation is faulty as legislative history directly contradicts the proposition that this textual shift was meant to fetter the discretion of the referee judge. The 41st Report of the Law Commission of India (“Report”) dealt with this question. The finally proposed amendment to the provision is identical to the text of 392 of CrPC, 1973. It contained two changes - amending “the case” to “the appeal”, and introducing the proviso which allows for re-hearing before a larger bench, if any of the original two judges or the referee judge so require (¶ 31.57).

Importantly, the Report considered whether the discretion of the referee judge must be statutorily constrained. They explicitly rejected the addition of an explanation which would explain the term “the case” to mean only points of disagreement (¶ 31.53). Furthermore, the nature of a criminal proceeding where fact finding is not as easily severable as a civil proceeding as between co-appellants was specifically pointed out (¶ 31.54). In conclusion, the Report expressed no wish to statutorily clarify the role of the referee judge, preferring instead to leave it to judicial discretion. The change of the text to “the appeal”, though suggested, was never reasoned out, and as discussed above, most certainly do not act as an indicator of an intention to point in the direction of the construction in Rakesh Gupta.

While Rakesh Gupta rightfully recognised that the right of appeal in a criminal proceeding is individual (¶ 27), this alone does not provide grounds to constrain the referee judge. Therefore, there is neither a statutory nor precedent-based reasoning to directly support this construction —which is in contravention to decades of development. However, as outlined in the third section, the present position is not without its problems, and the proposed solution solves the conundrum without impeding the referee judge unnecessarily.

The Article 14 Question

This part of the piece delves into the concern shown in Rakesh Gupta as to a potential Art.14 violation caused by accepting the current position (¶ 35). While the rationale for the same is the alleged advantage/disadvantage caused by filing a composite appeal as opposed to an individual appeal, the Court declined to go further due to absence of any authoritative decision on the same. It is argued that Art.14 is an improper tool to correctly identify the defect with the current position. First, the role of the State is correctly mapped out, and second, the applicability of Art.14 to the referee judge’s role is examined.

Firstly, the scope of an Art.14 analysis is usually attracted in circumstances when the disparity was created by the State - through legislative classification or executive action. The statute does not explicitly provide for filing joint appeals, although such right has long since been recognised by the Court. The impugned provision applies squarely to all appeals under Chapter XXIX of CrPC, 1973, proving that this is not a true case of legislative classification. Even in matters where parallelly existing procedures were challenged before the Court under Art.14, the decision of which procedure to follow lay in the hands of the State. Restricting the analysis to situations where the appellants themselves file a joint appeal, one cannot truly find State involvement as the choice to do so is entirely the appellants. 

However, in State of Gujarat v. Ramprakash (“Ramprakash”), the right of the State to file a joint appeal against the acquittal of multiple co-accused in a joint trial under 417 of CrPC, 1898 [378 of CrPC, 1973 and 419 of the BNSS] was recognised. This can be characterised as an executive action as the power to choose between individual appeals against each appellant’s acquittal and a singular joint appeal lies with the State. 

Two tests exist to examine whether an action is violative of Art. 14. The twin test established in State of WB v. Anwar Ali Sarkar, and the manifest arbitrariness test established in Shayara Bano v. UOI. The former requires to establish first, an intelligible differentia between the two classes and second, a rational nexus of such classification to the object of the law. The latter requires that any measure undertaken is not capricious, irrational and/or without adequate determining principle.

In Ramprakash, the Court read the right of the State into the statutory provision in the CrPC, 1973 and held that it merely facilitated the cause of justice. Importantly, this right was acknowledged in light of the fact that the initial trial too was joint in nature. Furthermore, the close interrelatedness of facts in a criminal trial with multiple accused has repeatedly been flagged as being distinguishable from the easy severability in a civil trial. In any case, the convicted individuals too possess the same right to file a composite appeal. Therefore, this power can in no way be said to be violative of Art.14 under either test. 

Secondly, challenge to the power of a referee judge to override two concurring judges requires a different approach, distinguished from challenging any discretion granted to the State. In Naresh Mirajkar v. State of Maharashtra, the principle that judicial function is usually insulated from an Art.14 analysis was first laid out. However, in A.R Antulay v. R.S Nayak, the Supreme Court clarified that a judicial order stands within the scope of an Art.14 challenge, although only in limited circumstances. The basis for the same in the case was - altering or conferring jurisdiction with no statutory basis, singling out a person or class of persons for a different procedural treatment, and depriving individuals of fundamental or statutory rights.

Importantly, the scheme of the provision itself clarifies that the judgement is only delivered after the referee judge has presented their view, and the view of the division bench is a mere opinion until this stage. As argued in the preceding section, there exists no basis to curtail the ambit of the referee judge’s enquiry. As a result, the referee judge cannot be said to be acting outside their jurisdiction or power granted by the statute. Furthermore, the right to appeal is not being deprived of in any manner, and therefore, there exists no differential treatment being accorded.

In summation, while there indeed exists a problem with the present application of law, Art.14’s standards cannot be met. The past applications of Art.14 suggest that basing the identification of the current defect on an Art.14 analysis would render its very foundations unnecessarily shaky. In any case, as is demonstrated in the next section, the proposed reading would cure it entirely.

(Correctly) Framing the Problem and Solution

In Tirath Singh v. Bachittar Singh, the ‘golden rule’ of statutory interpretation was formally recognised. It postulates that if the literal interpretation of the statute leads to a presumably unintended  absurdity, injustice, or hardship, it can be constructed in a way which modifies its structure. Therefore, if both an absurdity existing, and its presumable unintendedness can be shown, a legitimate ground to support the proposed reading is created. In this section - first, the elements to trigger the golden rule are demonstrated; and second, the mechanism of the proposed reading is justified.

Firstly, the absurdity caused by the present position of law has already been flagged in Rakesh Gupta (¶ 36). A referee judge possesses the power to override the concurring opinions of the judges of the division bench, even if it does not concern the specific appeal(s) regarding which they disagree. In effect, this means that the acquittal of a single individual by the division bench of an appellate court could be jeopardised - solely on account of the fact that a composite appeal has been filed.  

An unspoken, cardinal rule of the decision making process, visible in Indian jurisprudence, is that the numerical minority opinion can never be the conclusive outcome of a judgement. While the procedure as to criminal appeals is unclear, 98 of the Code of Civil Procedure, 1908 leaves no room for confusion with regard to civil appeals. Whenever the judges of the division bench have no clear majority view as to a question of law, the matter is referred to further judges, and the decision is made per the majority view of all judges hearing that matter. Even in civil suits, the appellants are afforded the protection to ensure that a referee judge cannot override concurrent findings of the original division bench. Therefore, in a criminal trial where the consequences are penal in nature, and facts are closely interrelated, it would be absurd to not recognise a similar protection.

The Report also flags that in 1922, when an amendment was introduced to neutralize this very absurdity, it was rejected by the Select Committee (¶ 31.56). However, the reasoning for doing so was that this circumstance is a very rare occurrence, and therefore, it was unnecessary to engage with it. Crucially, this highlights that the present application was in no way an intended outcome of the provision by the Legislature, else the rationale would have mentioned so. Therefore, both the elements of an existing absurdity, and its presumable unintendedness are satisfied. 

Secondly, State of UP v. Jogendra Singh provides that if the whole purpose of a provision is contradicted by its literal meaning, a permissive proviso can be read as a duty. In the impugned provision, the proviso provides for a re-hearing before a larger bench, if any of the judges so require. As it does not cast any duty, it remains as a discretionary tool to be used. However, as demonstrated in the preceding paragraphs, the application in a composite appeal leads to a wholly unintended, irrational outcome. It results in a circumstance wherein the purpose of resolving the split is exceeded and produces a possibly prejudicial effect on the appellant. Therefore, it is legally defensible to read the proviso as casting a duty on the referee judge to refer the matter to a re-hearing, if they come to a finding in contradiction to concurrent findings by the division bench.

In practicality, this move would resolve every existing concern with the provision. In the Report too, this solution was hinted at favourably (¶ 31.56). A referee judge would no longer be able to single-handedly override unanimous findings by the division bench. At the same time, their power to examine every fact within the ambit of the appeal is not arbitrarily curtailed to the points of disagreement. This would also duly account for the unique nature of a criminal trial, as opposed to a neatly fact-severable civil suit. Therefore, this is perhaps the most legally sound and suitable solution.

Conclusion

The Supreme Court is presented with an opportunity to end a decades-long tussle as to the power and scope of the referee judge, in the context of a composite appeal. It has three choices before it - reaffirm the Sajjan Singh position, curtail the scope of the referee judge’s enquiry to the specific points of disagreement, or mandate a re-hearing before a larger bench in the event of a disagreement with unanimous findings of the division bench.

Reaffirming Sajjan Singh would continue the absurdity wherein the opinion of one judge can override that of two. Meanwhile, the diametrically opposite position necessitates undermining the factual interconnectedness of a criminal trial, and attempts to place reliance on a textual difference erroneously. Both the Report and the bench in Rakesh Gupta seem to hint at the third as the most viable solution, which would both cure the defect, and not curtail the referee judge without a sound reason.

The argument for the proposed reading is premised on understanding the fundamental difference between curtailing the scope of the referee judge’s enquiry, and curtailing the ability to override a concurrent finding of the initial bench. Relying on Art.14 to identify the defect would only premise the reasoning on unsatisfactory grounds. The appropriate mechanism to cure unintended statutory absurdities already exists via Tirath Singh. Therefore, the proposed reading creates a perfect balance between allowing for full enquiry of the facts by the referee judge, and preserving the integrity of the appellate process.