N Criminal Appeal No 516 of 1986 From the Judgment and Order dated 1361986 of the Bombay High Court in Crl
ANo90 of 1983
MC Bhandare and Miss CK Sucharita for the Appellants
AS Bhasme and AM 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 71 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
The offence was punishable with a sentence of imprisonment exceeding two years2 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 IIe of the Bombay High Court Appellate Side Rules 19603 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 _______________________ of the  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 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 IIe 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 3784 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 19823 SCR page 81 State of Madhya Pradesh vs 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 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
MLA Appeal Allowed


Summary:
The appeal of the State against the order of acquittal of the appellants of an offence under section 71 read with sections 16 and 17 of the  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 11 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 12 In the instant case the accused appellants were entitled to be heard under Rule 1 read with Rule 2 IIe 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 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 vs Dewadas  Ors
 1982 3 SCR page 81 relied upon