Patna High Court
TULSI CHOUDHARYversusSTATE OF BIHAR
- Decided
- Disposal
- ABATED
Holding
The appeal abates upon the appellant's death and the discretionary fine imposed under Section 302 IPC is set aside.
Summary
Tulsi Choudhary appealed a conviction under Section 302 IPC where a fine had been imposed. During the pendency of the appeal, the appellant died, as confirmed by police reports and a death certificate. The Court examined Section 394 of the CrPC (corresponding to Section 435 of the Bharatiya Nagarik Suraksha Sanhita, 2023) regarding the effect of a party's death on pending appeals. Relying on precedents that a fine under Section 302 IPC is discretionary, the Court set aside the fine order. Since the appellant had died, the appeal concerning imprisonment was deemed abated, and the entire appeal was disposed of.
Issues considered
- Does the death of an appellant during pendency of a criminal appeal abate the appeal under Section 394 CrPC/Section 435 BNSS?
- Is the imposition of a fine under a conviction for murder (Section 302 IPC) mandatory or discretionary?
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 435
- Criminal Procedure Code — s. 394
- Indian Penal Code — s. 302
Subjects
- death of appellant
- abated appeal
- criminal appeal
- Section 302 IPC
- discretionary fine
- Section 394 CrPC
- Section 435 BNSS
- case law
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.97 of 2010
======================================================
Tulsi Choudhary , son of Gopal Choudhary, resident of Village- Tumkaria,
Police Station- Bairia, District- West Champaran
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant : Mr. Chandra Mohan Jha, 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 16.05.2026 of the
Superintendent of Police, West Champaran (Bettiah) along with
the report dated 15.05.2026 of the S.H.O., Bairia Police Station,
West Champaran (Bettiah), which indicate that the sole
appellant Tulsi Choudhary 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.97 of 2010(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 2010, 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.97 of 2010(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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