iminal Appeal No219 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
HK 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 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 section 304 Part II IP 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 sections 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 section 417 of the Code and section 369 does not purport to place any restriction upon the exercise of that right
Section 369 occurs in Ch
XXVand 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 section 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 section 430 is subject to
two restrictions ie the judgment may be set aside or modified in an appeal under section 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 section 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 section 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 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 authority
In UJS Chopra vs State of Bombay1 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 section 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 UJS Chopra s case1 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  4 Sup
CI69 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 section 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 vs The State of Vindhya Pradesh Now Madhya Pradesh1 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 section 421 of the Code of Criminal Procedure no further appeal lies at his instance through an Advocate
The distinction between UJS Chopra s case2 and Pratap Singh s case1 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 vs Babulal and Bherumal3 a Division Bench of the Rajasthan High Court held that where the accused charged under section 302 IP Code was convicted under section 324 JP Code and the appeal of the accused against his conviction under section 324 IP 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 section 302 JP Code
In State vs Kalu4 a Full Bench of the Madhya Bharat High Court held that where after an appeal against conviction under section 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 section 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 vs Mansha Singh Bhagwant Singh5 the Punjab High Court expressed a similar view
In that case also the accused at the trial charged with the offence punishable under section 302 was convicted by the Sessions Judge of the offence under section 304 Part II IP Code
In appeal against the order of conviction by the accused the High Court after hearing the State confirmed the 1  2  3 AIR 1956 Raj 67
4 AIR 1952 MB 81
5 ILR 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 vs Diwanji Gardharji and others1 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 section 304 Part II IP Code has been dismissed after a hearing in an appeal by the State against the order of acquittal for the offence under section 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 wrs 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 section 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
GC Appeal dismissed


Summary:
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 section 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 sections 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 section 417 of the Code and section 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 section 430 is subject to two restrictions ie the judgment may be set aside or modified in an appeal under section 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 section 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 dismissed summarily by the High Court under section 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 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 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 section 4212 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 UJS Chopra vs State of Bombay   applied
Pratap Singh vs State of Vindhya Pradesh Now Madhya Pradesh   distinguished
State vs Babulal and Bherumal AIR 1956 Raj 67 State vs Kalu AIR 1952 MB 81 and State vs Mansha Singh Bhagwant Singh ILR 1958 Punjab 1475 referred to