Patna High Court
HARBANS YADAVversusSTATE OF BIHAR
- Decided
- Disposal
- ABATED
Holding
The appeal is abated due to the appellant's death, and the fine order is set aside as discretionary.
Summary
The appellant, Harbans Yadav, died while his criminal appeal against a conviction under Section 302 IPC was pending. The High Court examined a police letter confirming his death and considered Section 394 of the CrPC (now Section 435 of the Bharatiya Nagarik Suraksha Sanhita) which governs continuation of appeals after the appellant's demise. No near relative applied for leave to continue the appeal. Relying on precedents that a fine imposed on conviction under Section 302 is discretionary, the Court set aside the trial court's fine order. Since the appellant had died, the imprisonment portion of the sentence was deemed abated, and the appeal was disposed of as fully abated.
Issues considered
- Does an appeal abate upon the death of the appellant when no relative files an application for leave to continue under Section 394 CrPC?
- Is the fine imposed on conviction under Section 302 IPC discretionary and therefore subject to being set aside?
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 435
- Criminal Procedure Code — s. 394
- Indian Penal Code — s. 302
Subjects
- criminal appeal
- death of appellant
- abated appeal
- Section 302 IPC
- Section 394 CrPC
- discretionary fine
- sentencing
- abatement of sentence
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1011 of 2010
======================================================
Harbans Yadav, aged 86 years, son of Late Ram Prasad Yadav, resident of
village Ekrama, P.S. Chewara, District Sheikhpura.
... ... Appellant/s
Versus
The State of Bihar. ... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Ashok Kumar 1, Advocate
For the Respondent/s : Mr. Ajay Mishra, APP
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
3 26-05-2026 Perused the Letter No. 490 dated 16.05.2026 of the
Superintendent of Police, Sheikhpura along with the Report
dated 15.05.2026 of the S.H.O, Chewara Police Station,
Sheikhpura, wherein it is indicated that during enquiry it came
to light that the sole appellant, namely, Harbans Yadav, is dead.
2. In view of the said letter as also Section 394 of the
Code of Criminal Procedure, 1973, which corresponds to
Section 435 of the Bharatiya Nagarik Suraksha Sanhita, 2023,
since no near relative has filed any application for leave to
continue the appeal and having regard to the settled position of
law as enunciated by the Hon'ble Division Bench of the High
Court of Judicature at Allahabad in Santosh Kumar Baranwal
-Vrs.- State of UP, reported in 2010 SCC OnLine All 974,
wherein it has been categorically held that upon conviction
under Section 302 of the Indian Penal Code, 1860, the
imposition of fine is discretionary in nature and does not partake
Patna High Court CR. APP (DB) No.1011 of 2010(3) dt.26-05-2026
2/2
the character of a mandatory requirement, and the legal position
affirmed by the Hon'ble Division Bench of the High Court of
Judicature at Bombay in Gopala Balu Kamble -Vrs.- State of
Maharashtra, reported in 2011 SCC OnLine Bom 1290 being
in consonance therewith, and whereas the appellant has since
expired during the pendency of the present appeal and the
conviction sought to be assailed pertains to the year 2010, and
the State does not intend to pursue the recovery of the fine
amount as imposed by the learned Trial Court, this Court , upon
due consideration of the aforesaid facts, circumstances and
settled legal position, hereby sets aside the order of imposition
of fine passed by the learned Trial Court, and since the appeal
insofar as it pertains to the sentence of imprisonment stands
abated consequent upon the demise of the appellant, the present
appeal is disposed of as having abated in its entirety.
3. Let the trial court records be sent back to the
concerned court immediately, if not required in any other cases.
(Sangam Kumar Sahoo, CJ)
(Harish Kumar, J)
Neha/-
U
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