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PETITIONER: PANDURANG & ORS.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT30/09/1986

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) SINGH, K.N. (J)

CITATION:  1987 AIR  535            1986 SCR  (3)1004  1986 SCC  (4) 436        JT 1986   653  1986 SCALE  (2)605

ACT:      Bombay High Court Appellate Side Rules, 1960-Rule 1 and Rule 2-II(e)-Division  Bench empowered to hear appeal-Appeal heard and  disposed of by Single Judge-Judgment-Whether non- existent and a nullity.

HEADNOTE:      The appeal  of the State against the order of acquittal of the  appellants of an offence under s. 7(1) read with ss. 16 and  17 of  the Prevention of Food Adulteration Act 1954, punishable with  a sentence  of imprisonment  exceeding  two years, was heard and decided by a Single Judge, though under Rule 1  read with  Rule 2-H  (e) of  the Bombay  High  Court Appellate Side  Rules 1960 such an appeal was required to be heard by a Division Bench.      The  Single   Judge  allowed   the  appeal,   held  the appellants guilty and set aside the order of acquittal.      Allowing the  appeal of  the accused-appellants, on the question "whether the decision of a Single Judge in a matter required to be decided by a Division Bench was a nullity," ^      HELD: 1.1  When a  matter required  to be  decided by a Division Bench  of the  High Court  is decided  by a  Single Judge, the  judgment would  be a  nullity, the matter having been heard  by a  Court which  had no competence to hear the matter, it  being a  matter of  total lack  of jurisdiction. [1006C-D]      1.2 In  the instant  case, the  accused-appellants were entitled to  be heard under Rule 1 read with Rule 2-II(e) of the Bombay High Court Appellate Side Rules 1960, by at least two Judges  constituting a Division Bench and had a right to claim a  verdict as  regards their guilt or innocence at the hands of  two Judges. This right cannot be taken away except by amending  the  rules.  So  long  as,  the  rules  are  in operation it 1005 would be  arbitrary and  discriminatory to  deny  them  this right  regardless  of  whether  it  is  done  by  reason  of negligence or  otherwise. Negligence  can neither be invoked as an  alibi nor can cure the infirmity or illegality, so as to rob the accused of his right under the rules. What can be

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done only  by at  least two  Judges cannot  be done  by  one Judge. [1007A-C]      2. Even  a ’right’  decision by  a ’wrong’  forum is no decision. It  is non-existent in the eye of law. And hence a nullity. The  impugned judgment is no judgment in the eye of law. It  is set  aside and appeal remanded to High Court for hearing by a Division Bench. [1007C-D]      State of  Madhya Pradesh  v. Dewadas  & Ors.,  [1982] 3 S.C.R. page 81 relied upon.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 516 of 1986      From the  Judgment and  Order dated  13.6.1986  of  the Bombay High Court in Crl. A.No.90 of 1983.      M.C.  Bhandare   and  Miss   C.K.  Sucharita   for  the Appellants.      A.S. Bhasme and A.M. Khamwilka for the Respondent.      The Judgment of the Court was delivered by      THAKKAR, J.  ’Right’,  or  ’wrong’,  ’guilty’  or  ’not guilty’, is  not the  question. Whether  the learned  Single Judge had the ’right’ to hear and decide the appeal and hold that the  appellants were guility whilst setting aside their acquittal by  the Judgment  under appeal  1 is  the question which has  surfaced in the context of a judgment rendered by a learned Single Judge which according to the relevant rules of the  High Court was required to be heard and decided by a Division Bench.      The State  of Maharashtra (respondent herein) preferred an appeal  to the High Court of Bombay in order to challenge the order of acquittal rendered by the lower Court in favour of the  present appellants.  The acquittal was in respect of an offence  under Section  7(1) read with Sections 16 and 17 of the Prevention of Food Adulteration _________________________ 1. Criminal  Appeal No. 90 of 1983 decided by the High Court of Bombay  (Aurangabad Bench)  on June 13, 1986 resulting in the present appeal by special leave. 1006 Act 1954.  The offence  was punishable  with a  sentence  of imprisonment  exceeding   two  years.2   The   appeal   was, therefore, required  to be  heard by a Division Bench of the High Court and not by a learned Single Judge.      Such is  the problem  that has arisen in the context of Rule 1  read with  Rule 2-II(e)  of the  Bombay  High  Court Appellate Side  Rules, 1960.3  What then is the consequence? Is the  order of  conviction and  sentence recorded  by  the learned Single Judge who allowed the appeal merely irregular or void?      When a  matter required  to be  decided by  a  Division Bench of  the High  Court is  decided by  a  learned  Single Judge, the  judgment would  be a  nullity, the matter having been heard  by a  Court which  had no competence to hear the matter, it being a matter of total lack of juris- _______________________ 2. Sec. 16 of the Prevention of Food Adulteration Act, 1954:      16.  PENALTIES: "Subject  to the  provisions.........he           shall, in  addition to the penalty to which he may           be liable  under the  provisions of  Section 6, be           punish able  with imprisonment  for a  term  which           shall not  be less  than six  months but which may           extend to  three years,  and with fine which shall           not     be      less     than     one     thousand

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         rupees:........................" 3. Rule  1: "The  Civil and  Criminal  jurisdiction  of  the           Court, on  the Appellate  Side, shall,  except  in           cases where  it is otherwise provided for by these           rules, be  exercised by  Division Bench consisting           of two or more Judges."      Rule 2 II(e):  "Save as otherwise expressly provided by                     these  2   rules,  a  Single  Judge  may                     dispose of the following matters:                     II "Appeals against convictions in which                     only a sentence of fine has been awarded                     or in which the sentence of imprisonment                     awarded does  not exceed five years with                     or   without   fine,   appeals   against                     acquittals  wherein   the  offence  with                     which the  accused was  charged  is  one                     punishable on conviction with a sentence                     of fine  only  or  with  a  sentence  of                     imprisonment not  exceeding two years or                     with such  imprisonment  and  fine,  and                     appeals under Section 377 of the Code of                     Criminal       Procedure,       revision                     applications  and   Court  notices   for                     enhancement  of  sentence  for  offences                     punishable on  conviction with  sentence                     of imprisonment  not exceeding two years                     or with such imprisonment and fine.           (e)       Applications for  leave to  appeal under                     Section 378(4)  of the  Code of Criminal                     Procedure against acquittals wherein the                     offence  with   which  the  accused  was                     charged is  one punishable on conviction                     with a  sentence of  fine only or with a                     sentence of  imprisonment not  exceeding                     two years  or with such imprisonment and                     fine." 1007 diction. The  accused was  entitled to  be heard by at least two learned  Judges constituting  a Division Bench and had a right to  claim a  verdict as regards his guilt or innocence at the hands of the two learned Judges. This right cannot be taken away  except by  amending the  rules. So  long as  the rules  are   in  operation   it  would   be  arbitrary   and discriminatory to  deny him this right regardless of whether it  is   done  by   reason  of   negligence  or   otherwise. Deliberately, it  cannot be  done. Negligence can neither be invoked  as   an  alibi,  nor  can  cure  the  infirmity  or illegality, so  as to rob the accused of his right under the rules. What  can be  done only by atleast two learned Judges cannot be done by one learned Judge. Even if the decision is right on  merits, it  is by  a forum  which  is  lacking  in competence with regard to the subject matter. Even a ’right’ decision by  a ’wrong’  forum is  no decision.  It  is  non- existent in  the eye  of  law.  And  hence  a  nullity.  The Judgment under appeal is therefore no judgment in the eye of law. This  Court in  1982(3) S.C.R. page 81 (State of Madhya Pradesh v. Dewadas & Ors.) has taken a view which reinforces our view.  We, therefore,  allow the  appeal, set  aside the order passed  by the  learned Single  Judge,  and  send  the matter back  to the  High Court  for being  placed before  a Division  Bench   of  the  High  Court,  which  will  afford reasonable opportunity  of hearing  to both  the  sides  and dispose it of in accordance with law, expeditiously. We wish to add  that the  Registry of the High Court was expected to have realized  the true  position  and  ought  not  to  have

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created a  situation which  resulted in waste of court time, once for  hearing the appeal, and next time, to consider the effect of  the rules.  No Court  can afford this luxury with the mountain  of arrears which every Court is carrying these days. M.L.A.                                       Appeal Allowed. 1008