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PETITIONER: NlRBHAY SINGH

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 30/10/1968

BENCH:

ACT: Code  of  Criminal  Procedure,  ss.  369,  430,  417--Appeal against  conviction under s. 304 Part II dismissed  by  High Court  in  limine--Thereafter appeal against  acquittal  for murder   filed  by  State--State   appeal  whether  can   be entertained.

HEADNOTE:     The  appellant  was tried for causing the death  of  his mother  by inflicting injuries with a spear.   The  Sessions Judge  convicted  the appellant of the offence  of  culpable homicide  not  amounting  to murder, and  sentenced  him  to suffer  rigorous  imprisonment for seven years.   An  appeal preferred   by him from jail was summarily dismissed by  the High  Court. Thereafter the State filed an  ’appeal  against the  order  acquitting   the appellant  of  the  offence  of murder.   The High Court issued notice to the appellant  and after hearing counsel on both sides, convicted the appellant of  the  offence  of  murder, and  in  substitution  of  the sentence  imposed by the Court of Session, sentenced him  to suffer rigorous imprisonment for life.  Appeal was filed  in this Court by special leave.  On behalf of the appellant  it was  urged  that the judgment of the High  Court  dismissing summarily the appellant’s appeal against  conviction   under s.  304 became final, and that the judgment of the Court  of Sessions got merged into the judgment of the High Court  and thereafter the High Court was incompetent in an appeal filed by the State to modify that order and convict the  appellant for  the offence of murder.  Reliance was placed on ss.  369 and 430  of the Code of Criminal Procedure.     HELD:  (i)  The  right to appeal against  the  order  of acquittal is expressly conferred upon the State by s. 417 of the  Code  and  s.  369  does  not  purport  to  place   any restriction upon the  exercise of  that right. Section  369’ occurs in Chapter XXVI and prima facie applies to  judgments of the courts of first instance. [571]     (ii)  Finality  of the judgment of the  Appellate  Court disclosed  by s. 430 is subject to two restrictions i.e. the judgment may be set aside or modified in an appeal under  s. 417  of  the Code by the High Court and in exercise  of  the power conferred upon the courts under Ch. XXXII which  deals with  the  exercise of power to entertain   references   and revisions.   Judgment  of  a High Court  in  appeal  is  not subject to the exercise of any appellate or revisional power exercisable under the Code. The exception declared in s. 430 therefore only applies to judgment of a court subordinate to the High Court exercising appellate power. [571 G]     (iii) There is no warrant for the argument that when  an appeal  preferred  by a person convicted of  an  offence  is

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dismissed  summarily by the High Court under s. 421  of  the Code  of  Criminal  Procedure.  the judgment  of  the  trial court  gets  merged in the judgment of the  High  Court  and cannot thereafter be modified.  The summary dismissal of the appeal of the person accused, binds the accused but not  the State which has not been heard. [572 A, D]     If  after  the  appeal  of  the  accused  is   summarily dismissed  the State or the complainant seeks to  prefer  an appeal against the order of acquit- 570 tal,  the  High  Court  is not  prohibited  by  any  express provision  or implication ’arising  fro.m the scheme of  the Code  from  entertaining   the appeal.  When,  however,  the High  Court issues notice to the State in an appeal  by  the accused  against the order of conviction and the  appeal  is heard and decided on the merits all questions determined  by the High Court either expressly or by necessary  implication must  be  deemed to be finally determined, and there  is  no scope  for reviewing those orders in any  other  proceeding: The  reason  of the rule: is not so much  the  principle  of merger of the judgment of the, trial court into the judgment of the High Court, but that a decision  rendered by the High Court,  after hearing the parties on a matter in dispute  is not  liable to be reopened between the same parties  in  any subsequent enquiry. [572 E, F]     (iv) The fact that at the earlier hearing the High Court called for the record of the ease from the court of  session in exercise of the power under s. 421(2) and after  persuing the  record  dismissed  the  appeal,  was  not  relevant  in determining the legal effect of the order of the High Court. [575 D] U.J.S.  Chopra  v.  State of Bombay,  [1955]  2  S.C.R.  94, applied.     Pratap  Singh  v. State of Vindhya Pradesh  (Now  Madhya Pradesh) [1961] 2 S.C.R. 509, distinguished.     State  v.  Babulal and Bherumal, A.I.R.  1956  Raj.  67, State  v.   Kalu, A.I.R. 1952 M.B. 81 and  State  v.  Mansha Singh  Bhagwant Singh, I.L.R. (1958) Punjab  1475,  referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.219  of 1966.     Appeal  by  special .leave from the judgment  and  order dated  February 7, 1966  of the  Madhya Pradesh  High  Court Indore Bench in Criminal Appeal No. 127  of 1965. H.K. Puri, for the appellant. I. N. Shroff, for the respondent. The Judgment of the Court was delivered by     Shah,  J.  The appellant Nirbhay Singh was tried  before the  Court  of  Session, Ujjain, for causing  the  death  of Bhagwanti  his mother--by inflicting injuries to her with  a spear.   The Sessions Judge convicted the appellant  of  the offence  of culpable homicide not amounting to  murder,  and sentenced  him  to suffer rigorous  imprisonment  for  seven years.   An appeal preferred by the appellant from jail  was summarily  dismissed by the High Court of Madhya Pradesh  on March  16,  1965.  Thereafter the State  of  Madhya  Pradesh preferred  an  appeal on March 31, 1965, against  the  order acquitting the’ appellant of the offence of murder. The High Court  issued  notice  to the appellant  and  after  hearing counsel for the State and the appellant set aside the  order of acquittal and convicted the appellant of the. offence  of

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murder, and in substitution of the order of sentence imposed by the Court of Session sentenced him to suffer imprisonment for  life.   The appellant has appealed to this  Court  with special leave. 571     Counsel for the appellant urged that the judgment of the High Court dated March 16, 1965, dismissing the  appellant’s appeal  from  the order of conviction under s. 304  Part  II I.P.  Code became final, and that the judgment of the  Court of  Session got merged into the judgment of the  High  Court and  thereafter the High Court was incompetent in an  appeal filed  by  the State to modify that order  and  convict  the appellant  for  the offence of murder.   Counsel  relied  in support of his contention upon ss. 369 and 430  of the  Code of Criminal Procedure.  Section 369 provides:                      "Save  as  otherwise provided  by  this               Code or by any other law for the time being in               force  or, in the case of a High Court by  the               Letters    Patent    or    other    instrument               constituting  such High Court, no court,  when               it  has  signed its judgment, shall  alter  or               ’review the same except to correct a  clerical               error." Section 430 provides:                     "Judgments  and  orders  passed  by   an               Appellate  Court upon appeal shall  be  final,               except  in the cases provided for  in  section               417 and Chapter XXXII."     We  are  unable to hold that the High Court was  in  the circumstances of the case debarred by the provisions  relied upon  from entertaining an appeal by the State  against  the order  of acquittal of the offence of murder passed  by  the Court of Session. The right to appeal against the order  of. acquittal  is expressly conferred upon the State by  s.  417 of  the  Code,  and s. 369 does not  purport  to  place  any restriction  upon  the exercise of that right.  Section  369 occurs  in Ch. XXV/and prima facie applies to  judgments  of the  courts  of first instance.  Section  430   applies   to judgments of appellate  Courts; it declares the judgment  of an appellate Court final except in the cases provided for in s.  417 and Ch. XXXII.  In terms the ’provision applies  to. all  judgments  of Appellate Courts-Courts of  the  District Magistrate, Courts of Session and the High Courts.  Finality of the judgment of the Appellate Court declared by s. 430 is subject  to. two restrictions, i.e. the judgment may be  set aside or modified in an appeal under s. 417  of the Code  by the High Court, and in exercise of the power conferred  upon the Courts under Ch. XXXII which deals with the exercise  of power to  entertain  references  and  revisions. Judgment of a High Court in appeal is not subject to the exercise of any appellate  or revisional power exercisable under  the  Code. The  exception declared in s. 430 therefore only applies  to judgment of a court subordinate to the High Court exercising appellate power. 572     There  is however no warrant for the argument that  when an  appeal preferred by a person convicted of an offence  is dismissed  summarily by the High Court under s. 421  of  the Code of Criminal Procedure, the judgment of the trial  court gets   merged  in   the judgment of the High  Court  and  it cannot  thereafter be modified even at the instance  of  any other  party  affected thereby, and in  respect  of  matters which were not and could not be dealt with by the High Court when  summarily dismissing the appeal.  When the High  Court dismisses  an  appeal of the person  accused  summarily  and

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without notice to the State, the High Court declines thereby to  entertain  the  grounds set up  for  setting  aside  the conviction of the accused.  That judgment undoubtedly  binds the accused and he cannot prefer another appeal to the. High Court  against  the same matter in respect of which  he  had earlier  preferred an appeal.  But it is a fundamental  rule of  our  jurisprudence that no order to the prejudice  of  a party  may  be  passed  by a court,  unless  the  party  had opportunity  of  showing cause against the  making  of  that order.   When an appeal of a convicted person  is  summarily dismissed by the High Court the State has no opportunity  of being  heard.  The judgment summarily dismissing the  appeal of  the accused is a judgment given against the accused  and not  against  the State or the complainant.   If  after  the appeal  of the accused is summarily dismissed, the State  or the complainant seeks to prefer an appeal against the  order of  acquittal,  the  High Court is  not  prohibited  by  any express provision or implication arising from the scheme  of the Code from entertaining. the appeal. Where, however,  the High  Court issues notice to the State in an appeal  by  the accused  against the order of conviction, and the appeal  is heard and decided on the merits, all questions determined by the High Court either expressly or by necessary  implication must  be  deemed to be finally determined, and there  is  no scope  for reviewing those orders in any  other  proceeding. The  reason  of  the rule is not so muck  the  principle  of merger of the judgment of the trial court into the  judgment of the High Court, but that a decision rendered by the  High Court  after hearing the parties on a matter in  dispute  is not  liable to the reopened between the same parties in  any subsequent enquiry.   Cases do frequently arise where a person is charged at the trial with the commission of a grave or major offence and he is  convicted  of a minor offence, the  conviction  for  the minor  offence  amounting to his acquittal  for  the   major offence.   Where  an appeal against the order of  conviction for  the  minor offence at the instance of  the  convict  is entertained  and  decided, the State having  opportunity  of being  heard on the merits of the dispute.,  in   an  appeal subsequently filed at the instance of the State against the order  of  acquittal,  the  High  Court  is  precluded  from reconsidering all those matters which were expressly decided or flow as a neces 573 sary implication of the earlier judgment.  Any other view is likely   to   cause  the  gravest   inconvenience   in   the administration  of justice and the principle of finality  of judgments  would  be  sadly  disturbed.  If,  for  instance, against  an order of acquittal passed for a  grave  offence, the  State  prefers an appeal and the  appeal  is  summarily dismissed,  it would be impossible to contend  that  thereby the  accused is prevented from filing an appeal against  the order of conviction.  Similarly where the accused prefers an appeal  against the order of conviction of a  minor  offence and  that appeal is summarily dismissed, the accused  cannot prefer  another appeal, but the State will not be  precluded from  preferring  an appeal against the order  of  acquittal because  the State had no opportunity of being heard at  the earlier stage.  Where, however, notice had been issued in an appeal at the instance of the accused and the State had  art opportunity  of being heard, the decision of the Court  will be regarded as a decision on the merits of the   transaction which  resulted  in the conviction of the accused  and  that decision  cannot  be  reopened in  any  subsequent  enquiry. These principles are, in our judgment, supported by abundant

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authority.     In  U.J.S. Chopra  v. State of Bombay(1), the  appellant Chopra  was convicted by the Trial Magistrate of an  offence under . the Bombay Prohibition Act.  His appeal to the  High Court  of  Bombay was summarily dismissed.   Thereafter  the State  of Bombay applied to the High Court of Bombay for  an order for enhancement of sentence, and notice was issued  to Chopra  to  show cause against enhancement of the  sentence. Chopra   pleaded that he was entitled to show cause  against the  order of conviction. This Court held that  the  summary dismissal  of  the  appeal   preferred  by  Chopra  did  not preclude  him  from  showing  cause against  his  conviction under  s. 439 (6)  of the Code of Criminal  Procedure,  even though his appeal was summarily dismissed. The case, in  our judgment,   involves   two  propositions--that   after   the dismissal  of  the appeal of Chopra, an application  at  the instance  of  the  State for  enhancement  of  sentence  was maintainable, and that Chopra could canvass the  correctness of   his  conviction,  summary  dismissal  of   his   appeal notwithstanding.  If the principle of merger of judgment  by a  summary dismissal of the appeal of the accused is  valid, the  State  could not in U.J.S. Chopra’s case(1)  have  been permitted to exercise the right to apply for enhancement  of the  sentence.  Bhagwati, J., speaking for the  majority  of the  Court expressed the view that a judgment pronounced  by the  High  Court  in  the  exercise  of  its  appellate   or revisional  jurisdiction after issue of a notice and a  full hearing  in  the  presence of both the parties  is  a  final judgment which replaces the judgement of the Court of  first instance, thus  constituting  the  only (1) [1955] 2 S.C.R. 94. 4 Sup. C.I./69--4 574 final  judgment  to  be executed in  accordance  with   law. When, however, a petition or appeal presented by a convicted person  from jail is summarily dismissed under s. 421  or  a revision application made by him is dismissed in limine  the order  passed  by  the  High Court does  not  amount  to  an expression of the opinion of the Court arrived at after  due consideration of the evidence and all the arguments.     In  Pratap  Singh  v. The State of Vindhya Pradesh  (Now Madhya  Pradesh)(1)  this  Court held that  where  a  person convicted  has exercised the right of presenting  an  appeal from jail and that appeal has been summarily dismissed under s. 421  of the Code of Criminal Procedure, no further appeal lies  at his instance through an Advocate.  The  distinction between  U.J.S. Chopra’s case(2) and Pratap Singh’s  case(1) is  clear:  summary  dismissal of the appeal  filed  by  the accused  does not bar any proceeding which the State may  be competent to initiate against the order passed in favour  of the accused, but another appeal by the accused after summary dismissal of his earlier appeal is barred.     In  The State  v. Babulal and Bherumal,(3),  a  Division Bench  of  the  Rajasthan High Court  held  that  where  the accused  charged under s. 302 I.P. Code was convicted  under s.  324 J.P. Code and the appeal of the accused against  his conviction under s. 324 I.P. Code was dismissed by the  High Court  on his own prayer that he did not desire to press  it and  there was no hearing given to. the State, the order  of the High Court was not such a judgment as would preclude the High Court from hearing an appeal  by  the State against the acquittal  of the accused for the offence under s. 302  J.P. Code.     In  State  v. Kalu(4) a Full Bench of the Madhya  Bharat High   Court  held  that  where  after  an  appeal   against

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conviction  under  s. 423 (1 )(b)  of the Code  of  Criminal Procedure by the accussed has been dismissed by an appellate Bench of the High Court, an appeal filed against an order of acquittal of the accused of other charges by the State under s. 417 is not competent.  In the view of the High Court  the reason  of the rule is that the earlier decision was  final, and  if the appeal of the State against acquittal was  heard on  merits,  it might disturb the finality  of  the  earlier judgment.     In  The  State  v. Mansha Singh  Bhagwant  Singh(5)  the Punjab  High Court expressed a similar view.  In  that  case also  the  accused  at the trial charged  with  the  offence punishable under s. 302 was convicted by the Sessions  Judge of  the offence under s. 304 Part II I.P. Code.   In  appeal against  the  order of conviction by the  accused  the  High Court after hearing ’the State confirmed the (1) [1961] 2 S.C.R. 509.        (2) [1955] 2 S C.R. 94. (3) A.I.R. 1956 Raj. 67.        (4) A.I.R. 1952 M.B. 81. (5) I.L.R. (1958) Punjab 1475. 575 order.   An appeal filed by the State against the  order  of acquittal   of   the  accused  for  murder  was   held   not maintainable.     In State  v. Diwanji Gardharji and others(1) a  Division Bench  of the High Court of Gujarat  apparently  held--after discussing many other points not relevant here--that when an appeal  of time accused against the order of conviction  and sentence for the offence under s. 304 Part II I.P. Code  has been  dismissed after a hearing, in an appeal by  the  State against the order of acquittal for the offence under s. 302, the  question of the accused having committed an offence  of culpable  homicide  not   amounting   to  murder  cannot  be allowed to be canvassed.     In  the present case the order passed by the High  Court at  the earlier stage w,rs an order of summary dismissal  of the appeal flied by the accused.  No notice of appeal  flied by the accused was given to the State, and the State had  no opportunity  of  being heard thereon.  It is true  that  the High Court had at the earlier hearing called for the  record of  the  case from the Court of Session in exercise  of  the power  under  s. 421 (2) and after persuing the  record  had dismissed  the  appeal.   But that  is   not   relevant   in determining the legal effect of the order of the High Court. The appeal fails and is dismissed. G.C.           Appeal  dismissed. 3 Guj. L.R. 882. 576