PANDURANG & ORS. versus STATE OF MAHARASHTRA

Citation: [1986] 3 S.C.R. 1004 · Decided: 30-09-1986 · Supreme Court of India · Bench: M.P. THAKKAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

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 
c 
2-II(e)-Division Bench empowered to hear appeal-Appeal heard and 
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· 
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. [1007 A-Cl 
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 mllb Court 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. 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
No. 516of1986 
From the Judgment and Order dated 13.6.1986 of the Bombay 
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. 
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 
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 
A 
B 
c 
D 
E 
G 
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. 
A 
B 
c 
D 
E 
F 
G 
H 
1006 
SUPREME COURT REPORTS 
l198tj] 3 S.C.R. 
. 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 
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 

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