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
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. Section 435
- Criminal Procedure Code — s. Section 394
- Indian Penal Code — s. Section 302
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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