Patna High Court
BHUSHAN GIRIversusSTATE OF BIHAR
- Decided
- Disposal
- ABATED
Holding
The appeal abated due to the appellant's death, and the fine order was set aside as discretionary.
Summary
Bhushan Giri, convicted under Section 302 of the IPC, appealed his sentence. While the appeal was pending, he died, and a death certificate was submitted. Under Section 394 of the CrPC (corresponding to Section 435 of the Bharatiya Nagarik Suraksha Sanhita, 2023), an appeal abates if the appellant dies and no near relative seeks leave to continue it. The Court, relying on precedents that a fine in a Section 302 conviction is discretionary, set aside the trial court's fine order. Since the imprisonment portion of the sentence cannot be executed against a deceased person, the appeal was disposed as fully abated.
Issues considered
- The effect of the appellant's death on a pending criminal appeal.
- Whether the fine imposed in a conviction under Section 302 IPC is mandatory or discretionary.
- Whether a near relative can seek leave to continue the appeal after the appellant's death.
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
- fine discretion
- Section 302 IPC
- CrPC Section 394
- Bharatiya Nagarik Suraksha Sanhita
- conviction
- sentencing
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.471 of 2001
======================================================
Bhushan Giri, Son of Devanand Giri, Resident of Village-Bihjadi, Police
Station-Deseri, District-Vaishali.
... ... Appellant/s
Versus
State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Ajay, Advocate
For the Respondent/s : Mr. Satyanarayan Prasad, 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 Letter No. 146 dated 10.02.2026 of the
Superintendent of Police, Vaishali along with the report of
Police Inspector cum S.H.O., Sahdei Police Station, Vaishali
dated 08.02.2026, wherein it is indicated that during enquiry it
came to light that the sole appellant Bhushan Giri has died.
Death certificate of the appellant issued by Department of
Planning and Development, Government of Bihar, Patna has
also been enclosed with the said reports.
2. In view of the said letters 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.471 of 2001(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
-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
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 2001, 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
Patna High Court CR. APP (DB) No.471 of 2001(3) dt.26-05-2026
3/3
concerned court immediately, if not required in any other case.
(Sangam Kumar Sahoo, CJ)
(Harish Kumar, J)
ranjan/-
U
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