JUDGMENT :

Shah, J.

1. 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.

2. 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 of the Indian Penal 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."

3. 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 Chapter 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 Section 417 and Chapter 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, i.e. 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 Chapter 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.

4. 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