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Patna High Court

RAM DEO TIWARYversusTHE STATE OF BIHAR

Decided
Disposal
ABATED

Holding

The appeal abated due to the appellant's death, and the fine order was set aside.

Summary

Ram Deo Tiwary was convicted under Section 302 of the IPC and a fine was imposed by the trial court. While his appeal was pending, the appellant died, and no near relative filed an application to continue the appeal. The High Court, relying on Section 394 of the CPC (corresponding to Section 435 of the Bharatiya Nagarik Suraksha Sanhita) and established case law, held that the fine is discretionary and not mandatory. Since the appellant had died, the sentence of imprisonment was deemed abated and the fine order was set aside. Consequently, the appeal was disposed of as having abated in its entirety.

Issues considered

  • Whether an appeal can continue after the death of the appellant when no relative seeks to continue it
  • Whether the discretionary fine imposed under a conviction for murder can be set aside upon the appellant's death

Legislation cited

Subjects

  • criminal appeal
  • death of appellant
  • abatement
  • discretionary fine
  • Section 302 IPC
  • sentencing
  • CPC Section 394
  • appeal abated

Judgment

                     IN THE HIGH COURT OF JUDICATURE AT PATNA
                                CRIMINAL APPEAL (DB) No.546 of 2011
                 ======================================================
                 Ram Deo Tiwary S/O Late Ram Chhapit Tiwary Resident Of Village-
                 Manjhiawan, P.S.- Charpokhari, District- Bhojpur, Ara



                                                                             ... ... Appellant/s


                                                     Versus

                 The State Of Bihar

                                                           ... ... Respondent/s
                 ======================================================
                 Appearance :
                 For the Appellant/s    :        Mr. Prabhu Narayan Sharma, 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. 1201 dated 10.05.2026 of the

                   Superintendent of Police, Bhojpur, Ara along with the Report

                   dated     10.05.2026     of      the   Police     Inspector-cum-S.H.O,

                   Charpokhari Police Station, Bhojpur, Ara wherein it is indicated

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

                   namely, Ram Deo Tiwary, 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.546 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.546 of 2011(5) dt.26-05-2026
                                                     3/3




                                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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