# NIRBHA Y SINGH v. STATE OF MADHYA PRADESH

- **Citation:** [1969] 2 S.C.R. 569
- **Court:** Supreme Court of India
- **Decided:** 1968-10-30
- **Case number:** Criminal Appeal No. 219 of 1966
- **Bench:** J. C. Shah, V. Ramaswami, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nirbha-y-singh-v-state-of-madhya-pradesh-4567
- **Pages:** 7

## Headnote

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Code of Criminal Procedure, ss. 369, 430, 417-Appeal against conviction undPr s. 304 Part II dismissed by Iliqh Court in limine-Thereajt.er appeal against acquittal for
murder filed by State-State
appeal
ll'hether can be entertained.
The appellant was tried for causing the death of his mother by inflicting injurie. 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 O:>urt.
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 hearin.g 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 imprison~
ment 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 O:>urt
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 O:>urt 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 E--F]
(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
re ..
visions.
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 GI
(iii) There is 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 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, DJ
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
SUPREME COURT REPORTS
[1969] 2 S.C.R.
'ta!, the High Court is not prohibited by any express provision or impli0cation arising
from 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 sc9pe fOr reviewing those orders in
.any other proceeding!
The reason of the rule. is not so much the princi~
pie 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, a1iter
'hearing the pa'fties on a matter in dispute is not liable to be reopened bertween the same parties in any subsequent enquiry. [572 E, Fl
A
B
(iv) The fact that at the earlier hearing the H

## Text

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NIRBHA Y SINGH
v.
STATE OF MADHYA PRADESH
October 30, 1968
56!>
B
[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]
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Code of Criminal Procedure, ss. 369, 430, 417-Appeal against conviction undPr s. 304 Part II dismissed by Iliqh Court in limine-Thereajt.er appeal against acquittal for
murder filed by State-State
appeal
ll'hether can be entertained.
The appellant was tried for causing the death of his mother by inflicting injurie. 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 O:>urt.
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 hearin.g 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 imprison~
ment 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 O:>urt
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 O:>urt 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 E--F]
(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
re ..
visions.
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 GI
(iii) There is 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 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, DJ
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
SUPREME COURT REPORTS
[1969] 2 S.C.R.
'ta!, the High Court is not prohibited by any express provision or impli0cation arising
from 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 sc9pe fOr reviewing those orders in
.any other proceeding!
The reason of the rule. is not so much the princi~
pie 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, a1iter
'hearing the pa'fties on a matter in dispute is not liable to be reopened bertween the same parties in any subsequent enquiry. [572 E, Fl
A
B
(iv) The fact that at the earlier hearing the High Court 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 dismissed the appeal, was
not relevant in determining the legal effect of the order of the High Court.
C
'[575 DJ
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. Babu/al and Bherumal, A.LR. 1956 Raj. 67, State v.
Kalu,
A.I.R. 1952 M. B. 81 and State v. Mansha SinRh Bhagwant Singh, LL.R.
{1958) Punjab 1475, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
219 of 1966.
Appeal by special kave 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 Bhagwantihis 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 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.
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NIRBHAY V. M. P. STATE (Shah, J.)
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 l.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 provide<> :
"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. XXVI 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
SUPREME COURT REPORTS
[1969] 2 S.C.R.
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 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 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 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
amormting to his acqnittal 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 necesA
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NIRBHAY V. M. P. STATE (Shah, J.)
573
sary implication of the earlier judgment. Any other view is likely
to cause the gravest inconvenience in the administration ~f 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 an 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 authority.
In U. !. S. Chopra v. State of Bombay('), 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. !. 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 exi;ressed the view that a judgment pronounced by
t~e _High Con.rt m the exer~ise 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 judgment of the Court of first instance, thus constituting the only
(1) [1955] 2 S.C.R. 94.
4 Snp. C.I./69--4
574
SUPREME COURT REPORTS
[1969] 2 S.C.R.
final judgment to be executed in accordance with .law.
When,
however, a petition or appeal presented by a
conv1c~~ perso~
from jail is summarily dismissed under s. 421 or a rev1s10n apphcation made by him is dismissed in limine the or~er passe~ ~y the
High Court· does not amount to an expression of the op1mon 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)(') 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(') 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. Babu/al and Bheruma/,( 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 I.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 I.P. Code.
In State v. Kalu(') a Full Bench of the Madhya Bharat High
Court held that where after an appeal against conviction under
s. 423 ( 1) (b) of the Code of Criminal Procedure by the accussed
has been d_ismissed 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(') 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
(!) [1961] 2 S.C.R. 509.
(3) A.J.R. 1956 Raj. 67.
(2) [1955] 2 S.C.R. 94.
(4) A.LR. 1952 M.B. 81.
(5) I.L.R. (1958) Punjab 1475,
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NIRBHAY V. M. P. STATE (Shah, J.)
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(') a Division Bench
of the High Court of Gujarat apparently held-after discussing
many oth~r points not relevant here-that when an appeal of the
accused against the order of conviction and sentence for the
offence under s. 304 Part II J.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 canvas~ed.
In the present case the order passed by the High Court at the
earlier stage was an order of summary dismissal of the appeal
filed by the accused.
No notice of appeal filed 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 .
(I) 3 Guj. L.R. 882.