NIRBHAY SINGH versus STATE OF MADHYA PRADESH

Citation: [1969] 2 S.C.R. 569 · Decided: 30-10-1968 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Dismissed
Cited by 1 judgment(s) · cites 2 · see the full citation network in Lexace
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

• 
) 
• 
A 
NIRBHA Y SINGH 
v. 
STATE OF MADHYA PRADESH 
October 30, 1968 
56!> 
B 
[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.] 
c 
D 
E 
F 
G 
H 
Code of Criminal Procedure, ss. 369, 430, 417-Appeal against con-
viction undPr s. 304 Part II dismissed by Iliqh Court in limine-There-
ajt.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 in-
flicting injurie. with a spear. The Sessions Judge convicted the appel-
lant 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 be-
half 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 ex-
pressly 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 
judg-
ments 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 pre-
ferred 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 impli-
0cation 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 be-
rtween 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.
Excerpt shown. Read the full judgment & AI analysis in Lexace.