1. The appellant was tried for the commission of offences punishable under Section 7 read with Section 16 of the Prevention of Food Adulteration Act and upon conviction was sentenced to undergo six months' R.I. besides paying the fine of Rs. 1000/. The appeal filed by the accused was allowed by the appellate court vide its judgment dated 27th December, 1985.
2. Feeling aggrieved, the state filed crl. appeal No. 249/1986 which was heard and allowed by a learned single judge of the High Court. The conviction and sentence awarded by the trial court was upheld vide the judgment impugned in this appeal.
3. Shri D.T. Karmate, learned counsel appearing for the appellant has submitted that the impugned judgment is liable to be set aside in view of the Bombay High Court (appellate side) rules, 1960. Rule 1 of the rules provides that 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 court consisting of two or more judges. If the appeal against acquittal wherein the accused was charged relates to an offence which is punishable with a conviction and fine or with a sentence of imprisonment not exceeding two years, such an appeal may be heard and disposed of by a single judge. Similarly, an appeal for leave under Section 378(4) of the Code of Criminal Procedure against acquittal, wherein the accused was charged is the one, punishable with conviction with a sentence of fine only or with a sentence of imprisonment not exceeding 2 years or with such imprisonment and fine, such appeal can also be heard by a single judge. In a case, where an appeal is filed against an order of acquittal and the offence with which the accused was charged is punishable with an imprisonment for more than two years, the appeal has to be heard by a division bench of the High Court. It is contended that in view of the mandatory provisions of the rules, the impugned judgment having been passed by a learned single judge is without jurisdiction and thus liable to be set aside.
4. Dealing with the Bombay High Court (appellate side) rules 1960, this Court in Pandurang and Ors. v. State of Maharashtra [JT 1986 (4) SC 234] has held:
"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 has no competence to hear the matter, it being a matter of total lack of jurisdiction. The accused was entitles 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 by at least 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 nonexistent 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 State of M.P. v. Dewadas , 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."
5. The learned counsel appearing for the state could not refer to any rule which authorises a learned single judge to hear and decide the appeal filed by the state against the order of acquittal with respect to an offence the punishment provided for which was admittedly more than two years. Under the circumstances, the appeal is allowed by setting aside the order of the learned single judge.
6. The criminal appeal No. 249/86 filed in the High Court is sent back for disposal afresh in accordance with law by a division bench of that court.