Holding

A judgment rendered by a Single Judge in a matter that must be decided by a Division Bench is a nullity and must be set aside.

Summary

The State of Maharashtra appealed an acquittal of Pandurang and others under Sections 7(1), 16 and 17 of the Prevention of Food Adulteration Act, 1954. The appeal, which involved an offence punishable with imprisonment exceeding two years, was required by the Bombay High Court Appellate Side Rules, 1960 to be heard by a Division Bench. Instead, a Single Judge of the Bombay High Court heard and set aside the acquittal, convicting the appellants. The Supreme Court held that a Single Judge lacks jurisdiction to decide a matter that the Rules reserve for a Division Bench, and any judgment rendered by such a judge is a nullity, even if correct on merits. Consequently, the Court set aside the Single Judge's order and remanded the matter to the High Court for hearing before a Division Bench. The appeal was allowed.

Issues considered

Whether a judgment delivered by a Single Judge in a High Court, when the appeal is required to be heard by a Division Bench under the Bombay High Court Appellate Side Rules, 1960, is a nullity.
Whether the conviction and sentence recorded by the Single Judge are void.

Legislation cited

Code of Criminal Procedures. 378(4)
Prevention of Food Adulteration Act, 1954s. 16, s. 17, s. 7(1)

Subjects

jurisdictiondivision benchsingle judgenullityappellate procedureHigh Court Rulescriminal appealprocedural defect

Judgment

A

PANDURANG & ORS. 1
v.
STATE OF MAHARASHTRA
B
SEPTEMBER 30, 1986

[M.P. THAKKAR AND K.N. SINGH, JJ.]

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

The appeal of the State against the order of acquittal of the appel-
!ants of an offence under s. 7(1) read with ss. 16 and 17 of the Preven-
D tion 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.

E 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 reqnired to be
decided by a Division Bench was a nullity,'' ~

F
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. I I006C-D]
G
1.2 1n 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 inno-
cence at the hands of two Judges. This right cannot be taken away .,,
H except by amending the rules. So long as, the rules are in operation it

1004
PANDURANG v. STATE OF MAHARASHTRA [THAKKAR, J.] 1005

would be arbitrary and discriminatory to deny them this right regard· A
less of whether it is done by reason of negligence or otherwise. Negli-
gence 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 at least two Judges cannot be done by one Judge. [1007A-Cl

B
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 i11 the eye of law. It is set aside and appeal
remanded to mllbCourt for hearing by a Division Bench. I I007C-D I

State of Madhya Pradesh v. Dewadas& Ors., [1982] 3 S.C.R. page
81 .relied upon. c
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 516of1986

From the Judgment and Order dated 13.6.1986 of the Bombay
D
High Court in Cr!. A. No. 90of 1983.

M.C. Bhandare and Miss C.K. Sucharita for the Af?pellants. ·

A.S. Bhasme and A.M. Khamwilkar for the Respondent.
E
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
seUing aside their acquittal by the Judgment under appeal' is the ques-
tion 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 ap-
peal to the High Court of Bombay in order to challenge the order of G
acquittal rendered by the lower Court in favour of the present appel-
lants. 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 J~e 13, 1986 resulting in the present appeal by special leave. H.
1006 SUPREME COURT REPORTS l198tj] 3 S.C.R.

A . Act 1954. The offence was punishable with a sentence of imprisonment
exceeding two years.' 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
B
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 er void?

When a matter required to be decided by a Division Bench of the
c 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 \o hear the matter, it being a matter of total lack of juris-

2. Sec. 16 of the Prevention of Food Adulteration Act, 1954:
D
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 tenn which shall not be less than six months but
which may extend to three years, and with fine which shall not be less than ane
thousand rupees:... "

:;. Rule I: "The Civil and Criminal jurisdiction of ·the Court, on the Appellate Side,
E shall, except in cases where it is otherwise provided for by these rules, be
exercised by Division Bench consisting of two or more Judges.''

Ruic 2 ll(e): "'Save as otherwise expressly provided by these 2 rule~. a Single Judge
may dispose of the following matters:

II "Appeals against convictions in which only a sentence of fine has
F been awarded or in which the sentence of imprisonment awarded does
not exceed five years with or without fine, appea1s against acquittals
wherein the.offence with which ihe accused was charged is one punish-
able 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 Proce-
dure, revision applications and Court notices for enhancement of sent-
G ence for offences punishable on conviction with sentence of imprison-
ment 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 sent-
ence of fine only or with a sentence of imprisonment not exceeding two
H years or with such imprisonment and ~ine."
PANDURANG v. STATE OF'MAHARASIITRA [THAKKAR,J.J 1007

'r diction. The accused was entitled to be heard by at least two learned A
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 dis-
criminatory to deny him this right regardless of whether it is done by •
B
. _
reason of negligence or otherwise. Deliberately, it cannot be done.
Negligence can neither be invoked as an alibi, nor can cure the in-
firmity 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
..,.-y~ 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 c
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 D
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
.i Court was expected to have realized the true position and ought not to ·
have created a situation which resulted in waste of court time, once for
hearing the appeal, and next titrre, to· con~der the effect of the rules. E

,
No Court can afford this luxury with the mountain of arrears which
.,.;. every Court is carrying these days .

M.L.A. Appeal allowed.

~

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