when a criminal appeal against convictionof accused is pending, no complaint is to be filed on the basis of adverse remarks passed against the investigation officer by the trial court – as res subjudice applies

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.25 OF 2009

Shri Hanumant Dinkar Arjun ….Appellant(s)

VERSUS

Shri Suresh R. Andhare & Anr. ….Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

  1. This appeal is filed against the final judgment

and order dated 15.07.2008 passed by the High

Court of Judicature at Bombay in Criminal

Revision Application No.309 of 2008 whereby the

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High Court dismissed the criminal revision

application filed by the appellant (complainant)

herein.

  1. A few facts need mention hereinbelow for the

disposal of this appeal, which involves a short point.

  1. The appellant filed a complaint under Sections

166, 167, 201 to 204 of the Indian Penal Code,

1860 (hereinafter referred to as “IPC”) read with

Section 25 of the Bombay Police Act, 1951 (for

short, “BP Act”) against respondent No. 1 herein

before the Judicial Magistrate First Class, Indapur.

  1. This complaint was filed on the basis of certain

adverse observations made by the 1st Additional

Sessions Judge, Baramati in his order dated

26.02.2003 passed in Session Case No. 99/2000

against respondent No.1 by which four accused

persons were convicted for commission of offence

punishable under Section 302/34 IPC and

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sentenced them to undergo imprisonment for life

and to pay a fine of Rs.2000/­ each.

  1. According to the appellant, in the light of the

certain adverse observations made in the said order

by the Additional Sessions Judge against

respondent No.1­Sub­Inspector of Police, who

investigated the said case, a prima facie case for

initiating criminal action against him is made out.

  1. The Courts below, however, declined this

prayer made by the appellant and the High Court by

the impugned order upheld the order declining the

prayer giving rise to filing of the present appeal by

way of special leave in this Court by the appellantcomplainant.

  1. It is not disputed by the parties that the

accused persons have filed criminal appeal in the

High Court against the order dated 26.02.2003 and

the same is pending in the High Court.

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  1. If that be so, then, in our opinion, the order

dated 26.02.2003, which is the basis of the

complaint in question, is sub judice in the criminal

appeal.

  1. In other words, when the order, which is the

foundation for filing the complaint in question itself

is sub judice, the appellant is required to await the

final outcome of the criminal appeal filed by the

accused persons.

  1. It is for this reason, we are not inclined to

entertain this appeal and while disposing of the

same grant liberty to the appellant to move afresh

for raising his grievance in question depending

upon the outcome of the criminal appeal filed by the

accused persons against the order dated

26.02.2003.

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  1. We, however, make it clear that we have not

expressed any opinion on the merits of the case,

which is subject matter of the complaint.

  1. With these observations, this appeal stands

disposed of finally.

                                 .………...................................J.

                               [ABHAY MANOHAR SAPRE]



 …...……..................................J.

                [DINESH MAHESHWARI]

New Delhi;

May 03, 2019

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