Patna High Court
AWADHESH SHARMAversusTHE STATE OF BIHAR
- Decided
- Disposal
- ABATED
Holding
The appeal is abated due to the appellant's death, and the discretionary fine imposed under the conviction is set aside.
Summary
The appellant, Awadhesh Sharma, died while his criminal appeal was pending, as confirmed by police reports and a death certificate. Under Section 394 of the CrPC (corresponding to Section 435 of the Bharatiya Nagarik Suraksha Sanhita, 2023), no near relative filed an application to continue the appeal. The Court noted that a fine imposed after a conviction under Section 302 of the IPC is discretionary, not mandatory, citing Santosh Kumar Baranwal v. State of UP and Gopala Balu Kamble v. State of Maharashtra. Since the appellant had died, the imprisonment sentence was deemed abated and the discretionary fine was set aside. Consequently, the appeal was disposed of as having abated in its entirety.
Issues considered
- What is the effect of the appellant's death on a pending criminal appeal?
- Is a fine imposed under a conviction for IPC Section 302 mandatory or discretionary?
- Can an appeal proceed without an application by a near relative under CrPC Section 394 / BNS Act Section 435?
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 435
- Criminal Procedure Code — s. 394
- Indian Penal Code — s. 302
Subjects
- criminal appeal
- appellant death
- abated appeal
- discretionary fine
- IPC 302
- CrPC 394
- Bharatiya Nagarik Suraksha Sanhita 435
- sentence abatement
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.411 of 2009
======================================================
Awadhesh Sharma, son of Late Ram Lakhan Sharma, resident of Village-
Kalen P.S. Khudwa (Obra) District- Aurangabad
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant : Mr. Ashok Kumar, Advocate
For the Respondent : Smt. Shashi Bala Verma, A.P.P.
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
4 26-05-2026 Perused the report dated 16.05.2026 of the Deputy
Superintendent of Police (Mu0-01), Aurangabad along with the
report dated 15.05.2026 of the Sub-Inspector of Police,
Khudwan Police Station, Aurangabad, which indicate that the
sole appellant Awadhesh Sharma 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.411 of 2009(4) dt.26-05-2026
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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 2009, 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.411 of 2009(4) dt.26-05-2026
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concerned court immediately, if not required in any other case.
(Sangam Kumar Sahoo, CJ)
(Harish Kumar, J)
shailendra/-
U
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