Patna High Court
DEVENDRA SINGHversusSTATE OF BIHAR
- Decided
- Disposal
- ABATED
Holding
The appeal abated due to the appellant's death and the fine order was set aside as the fine is discretionary.
Summary
The appellant, Devendra Singh, died while his criminal appeal against a conviction under Section 302 IPC was pending. The court examined the death certificate and relevant police reports, and applied Section 394 of the Code of Criminal Procedure (now Section 435 of the Bharatiya Nagarik Suraksha Sanhita) which provides that an appeal abates on the death of the appellant unless a near relative applies for leave to continue. The court also considered precedent that a fine imposed under Section 302 IPC is discretionary, not mandatory, citing decisions of the Allahabad and Bombay High Courts. Since the State did not seek recovery of the fine and the appellant was deceased, the court set aside the fine order and held that the appeal was wholly abated. Consequently, the appeal was disposed of as having abated in its entirety.
Issues considered
- Does an appeal abate upon the death of the appellant under Section 394 CrPC/Section 435 BNS?
- Is the fine imposed under Section 302 IPC mandatory or discretionary?
- Can the court set aside the fine order when the appellant has died?
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 435
- Criminal Procedure Code — s. 394
- Indian Penal Code — s. 302
Subjects
- criminal appeal
- abated appeal
- death of appellant
- Section 302 IPC
- discretionary fine
- CrPC Section 394
- Bharatiya Nagarik Suraksha Sanhita
- sentencing
- conviction
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1220 of 2010
======================================================
Devendra Singh, son of Late Ram Pratap Singh, resident of village – Dighi
Pokhrahi, Police Station – Nabinagar, District – Aurangabad.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Manish Kumar -3, 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. 1579 dated 15.05.2026 of the
Deputy Superintendent of Police, Aurangabad, along with the
Report dated 14.05.2026 of the Police Inspector-cum-S.H.O.,
Nabinagar Police Station, Aurangabad as well as the Death
Certificate, which was issued by the Department of Health and
Family Welfare, Government of Gujarat; wherein it is indicated
that during enquiry it came to light that the sole appellant,
namely, Devendra Singh, 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
Patna High Court CR. APP (DB) No.1220 of 2010(3) dt.26-05-2026
2/3
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
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
Patna High Court CR. APP (DB) No.1220 of 2010(3) dt.26-05-2026
3/3
concerned court immediately, if not required in any other cases.
(Sangam Kumar Sahoo, CJ)
(Harish Kumar, J)
Neha/-
U
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