Patna High Court
MAKARU MUKHIA @ MAKHARU @ MAKKAN MUKHIA and ORSversusSTATE OF BIHAR
- Decided
- Disposal
- ABATED
Holding
The appeal stands abated and is disposed of as the appellant(s) are deceased and no near relative applied for leave to continue.
Summary
The appellants, three brothers, filed a criminal appeal against the State of Bihar. During the pendency of the appeal, the Superintendent of Police reported that all three appellants had died, and death certificates were attached. The Court examined the reports and noted that under Section 394 of the Code of Criminal Procedure, 1973 (corresponding to Section 435 of the Bharatiya Nagarik Suraksha Sanhita, 2023), an appeal cannot proceed if the appellant is deceased and no near relative applies for leave to continue. Since no relative filed such an application, the Court held that the appeal could not be pursued. Consequently, the appeal was abated and disposed of, and the trial court record was ordered to be sent back to the lower court.
Issues considered
- Whether a criminal appeal can continue when the appellant has died
- Whether Section 394 CrPC (or its equivalent Section 435 B.N.S. 2023) mandates abatement of the appeal in the absence of an application by a near relative
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 435
- Criminal Procedure Code — s. 394
Subjects
- Criminal appeal
- Abatement
- Death of appellant
- Section 394 CrPC
- Procedural law
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.603 of 2007
======================================================
1. Makaru Mukhia @ Makharu @ Makkan Mukhia
2. Sitaram Mushar
Both sons of Late Santokhi Mushar
3. Kunkun Mushar
All residents of village- Rakhota tola Govindpur, P.S.- Sonbarsa,
District- Saharsa.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Manish Kumar -3, Advocate
Mr. Rakesh Singh, Advocate
Mr. Bhaskar Shankar, Advocate
For the Respondent/s : Mr. Binod Bihari Singh, APP
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
4 15-05-2026 Perused the Letter No. 529 dated 10.05.2026 of the
Superintendent of Police, Saharsa along with the report dated
09.05.2026 of the S.H.O., Sonbarsaraj P.S., Saharsa, wherein it
is indicated that during enquiry it came to light that all the three
above-named appellants are dead and the death certificate of the
appellants is annexed with the said report.
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
Patna High Court CR. APP (DB) No.603 of 2007(4) dt.15-05-2026
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continue the appeal, the Criminal Appeal stands abated and
disposed of.
3. Let the trial court record be sent back to the
concerned court immediately, if not required in any other cases.
(Sangam Kumar Sahoo, CJ)
( Harish Kumar, J)
guddukr/-
U T
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