Patna High Court
CHAMRU BISHWASH and ANRversusSTATE OF BIHAR
- Decided
- Disposal
- ABATED
Holding
The appeal abated due to the death of the appellants, and the fine order was set aside.
Summary
The appellants Chamru and Jagdish Bishwash appealed against a conviction under Section 302 IPC and a fine imposed by the trial court. While the appeal was pending, both appellants died, as confirmed by police reports. 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 the fine in a Section 302 conviction is discretionary, not mandatory, citing precedents from Allahabad and Bombay High Courts. Consequently, the Court set aside the fine order and held that the appeal, including the imprisonment sentence, abated due to the appellants' deaths, disposing of the appeal in its entirety.
Issues considered
- Whether an appeal can continue after the death of the appellant in the absence of an application by a near relative under CrPC Section 394.
- Whether the fine imposed under a conviction for murder (Section 302 IPC) is mandatory or discretionary.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 435
- Criminal Procedure Code — s. 394
- Indian Penal Code — s. 302
Subjects
- appeal abatement
- death of appellant
- discretionary fine
- Section 302 IPC
- CrPC Section 394
- criminal sentencing
- fine remission
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.417 of 2009
======================================================
1. Chamru Bishwash, son of Gaisal Bishwash
2. Jagdish Bishwash, son of Gaisal Bishwash
Both resident of Village- Baduabari, Police Station- Kadwam District- Katihar
... ... Appellants
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellants : Mr. Bimal Kumar, Advocate
For the Respondent/s : 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)
3 26-05-2026 Perused the report dated 04.05.2026 of the
Superintendent of Police, Katihar along with the report dated
03.05.2026 of the Police Inspector-cum-S.H.O., Kadwa Police
Station, Katihar, which indicate that both the appellants Chamru
Bishwash and Jagdish Bishwash are dead.
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.417 of 2009(3) 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 appellants have 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 appellants, 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.417 of 2009(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
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