Criminal Appeal No. 35 of 1985

6th December, 1996

Petitioner Counsel: Shri S. G. MANTRI
Respondent Counsel: Shri S. V. CHILLARGE

Cases Cited:
1986 Mh.L.J. 994 [Para 12]
AIR 1982 SC 800 [Para 13]

JUDGMENT

DESHMUKH, J. :- This Appeal was placed on Board for final hearing before Division Bench, because of the order passed by the learned Single Judge (Salve,J.) on 18.7.1986 directing to issue notices to the appellants/original accused nos. 1,2 and 4 as to why they should not be held guilty under section 302 read with Section 34 of the Indian Penal Code and convicted and sentenced accordingly. The learned single Judge, further, directed to issue notice to accused no.3 as to why he should not be held guilty for offence punishable under section 302 and 306 read with section 34 of the Indian Penal Code and convicted and sentenced accordingly. The learned single Judge directed to place the matter before Division Bench.

2. The accused persons were charged and tried for offence punishable under section 302 read with section 34 of the Indian Penal Code, so also for offence punishable under section 306 read with section 34 of the Indian Penal Code.

3. After conclusion of the trial, the learned Sessions Judge acquitted accused nos. 1,2 and 4 for offence punishable under section 302 IPC and sentenced to suffer RI for one year with a fine of Rs.400/- each, in default, sentenced to suffer R.I. for two months each.

4. However, the accused no.3- Pasha Rahemat Khan Pathan was acquitted of both the offences charged against him, punishable under sections 302 as well as 306 read with section 34 of the Indian Penal Code.

5. The three accused persons who were convicted for offence punishable under section 306 read with section 34 IPC, challenged their order of conviction and sentence in the present Appeal. As they were sentenced to suffer RI for one year and with fine, the Appeal was placed before the learned single Judge for admission, having regard to the provisions of the Bombay High Court Appellate Side Rules.

6. When the matter was placed for admission before the learned Single Judge, as stated above, the learned single Judge issued notices as to why the appellants should not be held guilty for offence punishable under sections 302 read with section 34 of the Indian Penal Code, and be convicted and sentenced accordingly. Similarly a notice was directed to be issued for the acquittal of accused no.3 on both counts for offence under section 302 and 306 read with section 34 of the Indian Penal Code.

7. Shri. S. G. Mantri, the learned counsel for the appellants, raised initial objection that the direction given by the learned single Judge for issuing notices are without jurisdiction and are contrary to the Bombay High Court Appellate Side Rules, 1960.

8. It is worthwhile to mention the relevant provisions of the Rules at this stage :

Part I of the said Rules consists of Conduct of Business. Rule 1 deals with the jurisdiction ordinarily exercised by Division Court of two Judges, and 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.

Rule 2 of the said Rules provides for matters disposed of by a single Judge and consists of two parts. The first part deals with Civil matters, whereas the second part deals with criminal matters. Rule 2 reads thus :

" I. CIVIL -

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II.CRIMINAL -

(a) 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 year 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 fine only or with sentence of imprisonment not exceeding two years or with such imprisonment and fine."

(Emphasis supplied)

9. On the basis of the provisions relating to matters to be disposed of by a single Judge on criminal side, it was contended that the jurisdiction can be exercised by a single Judge in respect of Court notices for enhancement of sentence for offences punishable on conviction with sentence of fine only or with sentence of imprisonment nor exceeding two years or with such imprisonment and fine. Shri. Mantri, therefore, contended that the power to issue notices of enhancement could be exercised by a single Judge to the sentence of imprisonment upto two years or with such imprisonment and fine.

10. The appellants as well as accused no,.3 were acquitted for offence punishable under section 302 read with section 34 IPC; whereas the accused no.3 was acquitted even for offence punishable under section 306 read with section 34 IPC.

11. It is common knowledge that for offence punishable under section 302 IPC, the sentence which could be awarded, is death or imprisonment for life, if necessary coupled with fine; whereas for offence punishable under section 306 IPC, a person could be punished with imprisonment of either description for not less than ten years and shall also be liable to fine. As the notices of enhancement issued by the learned single Judge are for offences where imprisonment provided for is more than two years, under the provisions of the said Rules, the learned single Judge has exceeded the jurisdiction vested in him. The power to issue notice of enhancement was restricted for issuing notices for imprisonment nor exceeding two years or with such imprisonment and fine. Shri. Mantri, therefore, contended that the notices of enhancement issued for offence punishable under section 306 read with section 34 IPC as against the present appellants as well as the notice issued against the accused no.3 for offence punishable u/s 302 read with section 34 IPC and section 306 read with section 34, is in excess of the jurisdiction vested in the court.

12. Our attention is invited to the decision of the Supreme Court where the relevant Rule directly came up for consideration, in the case of Pandurang and others vs. State of Maharashtra (1986 Mh.L.J. page 994), where the similar problem arose in respect of provisions of the Bombay High Court Appellate Side Rules, 1960 in exercise of jurisdiction on criminal side. The matter which was required to be decided by a Division Bench was decided by the single Judge. Such a decision was challenged in Appeal before the Supreme Court in that matter and the Supreme Court has held that the decision given by the single Judge is a nullity as it is non-existent in the eye of law. It is worthwhile to quote the observations of the Supreme Court in this regard,

" When the matter was required to be decided by a Division Bench of the High Court but was decided by a Single Judge, the judgment would be 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. The accused was entitled to be heard by at least two Judge constituting a Division Bench and had a right to claim a verdict as regards his 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 would be arbitrary and discriminatory to deny him this right regardless of whether it is done by reason of negligence or otherwise.

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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."

13. The similar question is considered by the Supreme Court in State of M.P. vs. Dewadas, (AIR 1982 SC 800) wherein it is observed,

"An application for 'leave' to appeal under sub-section (3) of S. 378 without which no appeal under sub-section (1) or sub-section (2) thereof can be entertained, being an integral part of the appeal must be laid before a Bench of two Judges of the High Court, under Rule 1(q)(ii), Chap.I, Part I, of Madhya Pradesh High Court Rules, (as stood before amendment) and cannot be heard and disposed of by a single Judge of the High Court under Rule 1(q) of the Rules as it stood prior to amendment."

14. The learned A.P.P. contended that even presuming that the learned single Judge had no jurisdiction to issue notice of enhancement, now as the matter is placed before the Division Bench, this Division Bench even applying the ratio laid down by the Supreme Court is competent to issue notices.

15. If the order passed by the learned single Judge is a nullity, there is no order in the eye of law. The matter cannot be placed before the Division Bench for hearing. As per the provision of the said Rule, the matter has to be heard before a single Judge. The notices issued by the learned single Judge are non-existent in law and the order is a nullity. If the single Judge was of the opinion that notice of enhancement was required to be issued, in our opinion, it was open for him to make a reference to the Division Bench. Then alone, the Division Bench constituted for the referred matters would have considered the matter on merits as to whether the notice of enhancement is required to be issued, even though the matter was referred by the single Judge.

16. Since the procedure prescribed and usually adopted is not followed, it would not be open for this Court to issue notice of enhancement afresh.

17. As we are of the opinion that the order passed by the learned single Judge on 18.7.1986 is a nullity, the jurisdiction to hear the same by a Division Bench is already lost and the matter is required to be heard and disposed of by a single Judge only. In view of this, we feel that the matter is required to be placed before the single Judge of this Court.

Order accordingly.