Patna High Court
BISHO YADAVversusTHE STATE OF BIHAR
- Decided
- Disposal
- ABATED
Holding
The appeal is abated due to the appellant's death, the fine order is set aside, and the imprisonment sentence is deemed extinguished.
Summary
Bisho Yadav, convicted under Section 302 of the IPC, appealed his sentence. While the appeal was pending, he died, and a death certificate was produced. No near relative filed an application under CrPC Section 394 (or the equivalent Section 435 of the Bharatiya Nagarik Suraksha Sanhita) to continue the appeal. The Court, relying on precedents that a fine is discretionary and not mandatory, set aside the fine imposed by the trial court, noting the State did not intend to recover it. Since the appellant’s death abates the imprisonment portion of the sentence, the Court disposed of the appeal as wholly abated.
Issues considered
- What is the effect of the appellant's death on a pending criminal appeal?
- Whether a fine imposed under a conviction can be set aside when the appellant has died and the State does not seek recovery?
- Whether an appeal may continue without a near relative filing an application under CrPC Section 394/Section 435 of the Bharatiya Nagarik Suraksha Sanhita?
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
- Section 302 IPC
- fine discretionary
- CrPC Section 394
- Bharatiya Nagarik Suraksha Sanhita Section 435
- sentence abatement
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.749 of 2008
======================================================
Bisho Yadav, son of Late Nanhe Yadav, resident of Village- Janakdih
Beldariya, P.S.- Lakhisarai, District- Lakhisarai
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant : Mr. Ambika Bhagat, Advocate
For the Respondent : Smt. Shashi Bala Verma, A.P.P.
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
3 26-05-2026 Perused the report dated 30.04.2026 of the
Superintendent of Police, Lakhisarai along with the report dated
29.04.2026 of the S.H.O., Bannu Bagicha Police Station,
Lakhisarai, which indicate that the sole appellant Bisho Yadav is
dead and the death certificate of the appellant 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
continue the appeal and having regard to the settled position of
Patna High Court CR. APP (DB) No.749 of 2008(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
v. 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 v. 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 2008, 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 record be sent back to the
Patna High Court CR. APP (DB) No.749 of 2008(3) dt.26-05-2026
3/3
concerned court immediately, if not required in any other case.
(Sangam Kumar Sahoo, CJ)
(Harish Kumar, J)
shailendra/-
U
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