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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

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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