Patna High Court
DILIP MALLAHversusSTATE OF BIHAR
- Decided
- Disposal
- ABATED
Holding
The appeal abated due to the appellant's death, the discretionary fine was set aside, and the imprisonment sentence was deemed extinguished.
Summary
The appellant, Dilip Mallah, was convicted under Section 302 of the IPC and appealed his sentence. While the appeal was pending, the appellant died, as confirmed by police reports and a death certificate. No near relative filed an application for leave to continue the appeal under CrPC Section 394 (or BNSS 435). The Court noted that the fine imposed with the conviction is discretionary and not mandatory, citing precedents. Consequently, the Court set aside the fine and held that the imprisonment sentence abated due to the appellant's death, disposing the appeal as fully abated.
Issues considered
- What is the effect of the appellant's death on a pending criminal appeal?
- Whether the fine imposed under a conviction for murder can be set aside when the appellant dies?
- Whether the imprisonment sentence stands after the appellant's demise?
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
- discretionary fine
- CrPC Section 394
- BNSS Section 435
- sentencing
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1256 of 2007
======================================================
Dilip Mallah, son of Shyam babu Mallah, resident of mohalla- Nadraganj
Mallahtoli, P.S.- Civil lines, District- Gaya
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant : Mr. Shivendra Prasad, Advocate
For the Respondent : Smt. Shashi Bala Verma, 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 report dated 14.05.2026 of the Senior
Superintendent of Police, Gaya along with the report dated
13.05.2026 of the Police Inspector-cum-S.H.O., Civil Lines
Police Station, Gaya, which indicate that the sole appellant Dilip
Mallah is dead and the death certificate of the appellant is
annexed with the said report.
2. In view of the said reports 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.1256 of 2007(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
v. 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 v. 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 2007, 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 record be sent back to the
Patna High Court CR. APP (DB) No.1256 of 2007(3) dt.26-05-2026
3/3
concerned court immediately, if not required in any other case.
(Sangam Kumar Sahoo, CJ)
(Harish Kumar, J)
shailendra/-
U
Checking your session…
Lawyer court records for this case
Associated through the court’s case reference.