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Patna High Court

AJAY KUMAR SHARMAversusTHE STATE OF BIHAR

Decided
Disposal
ABATED

Holding

The appeal abates upon the appellant's death, the discretionary fine is set aside, and the appeal is disposed of as abated in its entirety.

Summary

The appellant, Ajay Kumar Sharma, was convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment with a fine imposed by the trial court. While the appeal was pending, the appellant died, as reported in a police letter dated 14 May 2026. The High Court examined Section 394 of the Code of Criminal Procedure, 1973 (corresponding to Section 435 of the Bharatiya Nagarik Suraksha Sanhita, 2023), which provides that an appeal abates on the death of the appellant unless a near relative applies for leave to continue. Relying on precedents from Santosh Kumar Baranwal v. State of UP (2010 SCC OnLine All 974) and Gopala Balu Kamble v. State of Maharashtra (2011 SCC OnLine Bom 1290), the Court held that the fine is discretionary and not mandatory. Consequently, the fine order was set aside, the imprisonment sentence was deemed abated due to the appellant's death, and the appeal was disposed of 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 in a conviction under Section 302 IPC discretionary and subject to reversal?
  • What is the effect of the appellant's death on the imprisonment component of the sentence?

Legislation cited

Subjects

  • criminal appeal
  • death of appellant
  • abatement of appeal
  • discretionary fine
  • Section 302 IPC
  • Section 394 CrPC
  • sentencing

Judgment

                     IN THE HIGH COURT OF JUDICATURE AT PATNA
                                 CRIMINAL APPEAL (DB) No.153 of 2011
                 ======================================================
                 Ajay Kumar Sharma S/O Late Awadh Mahto Resident Of Village- Katahara
                 Maner, P.S- Maner, District- Patna.                  ... ... Appellant/s
                                                     Versus
                 The State Of Bihar                              ... ... Respondent/s
                 ======================================================
                 Appearance :
                 For the Appellant/s    :     Mr. Sachchidanand Choudhary, Advocate
                 For the Respondent/s   :     Mr. Sujit Kumar Singh, A.P.P.
                 ======================================================
                 CORAM: HONOURABLE THE CHIEF JUSTICE
                         and
                         HONOURABLE MR. JUSTICE HARISH KUMAR
                                       ORAL ORDER

                 (Per: HONOURABLE THE CHIEF JUSTICE)

6   26-05-2026                      Perused the Letter dated 14.05.2026 of the Police

                   Sub-Inspector, Maner Police Station, Patna, wherein it is

                   indicated that during enquiry it came to light that the sole

                   appellant, namely, Ajay Kumar Sharma, 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.153 of 2011(6) 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 2011, 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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