Patna High Court
KAILASH SINGHversusSTATE OF BIHAR
- Decided
- Disposal
- ABATED
Holding
The appeal is abated upon the appellant's death and the discretionary fine imposed under the conviction is set aside as the State does not intend to recover it.
Summary
Kailash Singh appealed his conviction under Section 302 IPC for murder, but died while the appeal was pending. The court examined Section 394 of the Code of Criminal Procedure, 1973 (and its counterpart 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 to continue it. The court also relied on precedents that a fine imposed with a conviction is discretionary and not mandatory. Since no relative filed an application and the State did not intend to recover the fine, the court set aside the fine and held that the imprisonment sentence was abated due to the appellant's death. Consequently, the appeal was disposed of as having abated in its entirety.
Issues considered
- Whether the death of the appellant during pendency of a criminal appeal abates the appeal under Section 394 CrPC (or Section 435 BNS Sanhita).
- Whether the fine imposed under a conviction for murder under Section 302 IPC is discretionary and can be set aside when the State does not seek recovery.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 435
- Criminal Procedure Code — s. 394
- Indian Penal Code — s. 302
Subjects
- Criminal Appeal
- Abatement
- Death of appellant
- Fine discretion
- Section 302 IPC
- Section 394 CrPC
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.524 of 2001
======================================================
Kailash Singh, Son of Late Mohan Singh, Resident of Village-Bhadaya,
Police Station-Badharia, District-Siwan.
... ... Appellant/s
Versus
State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Ashutosh Kumar, 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)
5 26-05-2026 Perused the Letter No. 606 dated 17.05.2026 of the
Superintendent of Police, Siwan along with the report of Police
Inspector cum S.H.O., Badhariya Police Station, Siwan dated
16.05.2026, wherein it is indicated that during enquiry it came
to light that the sole appellant Kailash Singh has died.
Certificate of death of the appellant issued by Sarpanch of Gram
Kachahari, Hardobra, Circle-Badhariya, Siwan 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.524 of 2001(5) 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
-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.524 of 2001(5) 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)
ranjan/-
U
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