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Patna High Court

MRITUNJAY PANDEY @ BIRESH PANDEYversusTHE STATE 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

The appellant, Mritunjay Pandey, died while his criminal appeal against a conviction under Section 302 IPC was pending. The court examined Section 394 of the Code of Criminal Procedure (now Section 435 of the Bharatiya Nagarik Suraksha Sanhita) which provides that an appeal abates if the appellant dies and no near relative files an application to continue it. It also considered precedent that the fine imposed for a Section 302 conviction is discretionary, not mandatory, as held in Santosh Kumar Baranwal v. State of UP and Gopala Balu Kamble v. State of Maharashtra. Since the appellant had died and the State did not seek recovery of the fine, the court set aside the fine order and held the appeal abated in its entirety. The trial court records were ordered to be sent back to the lower court.

Issues considered

  • Does an appeal abate upon the death of the appellant when no near relative applies for leave to continue under Sec 394 CrPC?
  • Is the fine imposed under Section 302 IPC mandatory or discretionary?
  • Can the fine order be set aside after the appellant's death?

Legislation cited

Subjects

  • appeal abatement
  • death of appellant
  • discretionary fine
  • IPC 302
  • CrPC Section 394
  • criminal appeal
  • fine remission

Judgment

                     IN THE HIGH COURT OF JUDICATURE AT PATNA
                                 CRIMINAL APPEAL (DB) No.545 of 2011
                 ======================================================
                 Mritunjay Pandey @ Biresh Pandey S/O Late Harihar Pandey Resident Of
                 Village- Bhrigichak, Police Station- Kateya, District- Gopalganj


                                                                          ... ... Appellant/s

                                                  Versus

                 The State Of Bihar


                                                         ... ... Respondent/s
                 ======================================================
                 Appearance :
                 For the Appellant/s    :     Mr. Lokesh Kumar Singh, Advocate
                 For the Respondent/s   :     Mr. Ajay Mishra, 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. 273 dated 08.02.2026 of the

                   Superintendent of Police, Gopalganj along with the Report

                   dated 08.02.2026 of the Police Inspector-cum-S.H.O, Kateya

                   Police Station, Gopalganj, wherein it is indicated that during

                   enquiry it came to light that the sole appellant, namely,

                   Mritunjay Pandey @ Biresh Pandey, 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
Patna High Court CR. APP (DB) No.545 of 2011(5) dt.26-05-2026
                                            2/3




          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

          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.
         Patna High Court CR. APP (DB) No.545 of 2011(5) dt.26-05-2026
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                                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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