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Andhra Pradesh High Court - Amravati

P.Hussain Chiddu Master vs The State Of Andhra Pradesh, on 9 July, 2021

Author: Cheekati Manavendranath Roy

Bench: Cheekati Manavendranath Roy

                                 1
                                                                  CMR, J.
                                                     Crl.P.No.2710 of 2021




THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

                Criminal Petition No.2710 of 2021

ORDER:

This Criminal Petition under Section 482 Cr.P.C. is filed assailing the order dated, 08.01.2021, passed in Crl.M.P. No.129 of 2020 on the file of the I Additional Judicial Magistrate of First Class, Adoni, Kurnool District, whereby learned Magistrate dismissed the petition filed under Section 451 Cr.P.C. seeking interim custody of the property that was seized in Crime No.71 of 2019 of Adoni III Town Police Station, Kurnool District.

2) Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the respondent State.

3) This Court is of the considered view that this Criminal Petition can be disposed of on the ground of its maintainability without going into merits of the case. The petitioner challenges the order that was passed by the trial Court in a petition filed under Section 451 Cr.P.C. It is now well settled that an order passed under Section 451 Cr.P.C. is amenable for revisional jurisdiction under Section 397 Cr.P.C. Therefore, when a specific remedy is available to challenge the said order by invoking the revisional jurisdiction under Section 397 Cr.P.C, the petitioner cannot invoke the inherent powers of this Court under Section 482 Cr.P.C.

4) Learned counsel for the petitioner would submit that an order passed in a Criminal Miscellaneous Petition filed under Section 451 Cr.P.C. is an interlocutory order and as such, the 2 CMR, J.

bar under Section 397(2) Cr.P.C. to maintain revision would apply and as such, only Criminal Petition under Section 482 Cr.P.C. is maintainable. He would further submit that when he has filed a revision in the High Court under Section 397 Cr.P.C. that the same was returned by the Registry as not maintainable.

5) The aforesaid contention of the learned counsel for the petitioner that an order passed under Section 451 Cr.P.C. is an interlocutory order and the bar under Section 397(2) Cr.P.C. attracts is not legally tenable. Similarly, the return of the revision by the Registry on the ground that revision is not maintainable against an order passed under Section 451 Cr.P.C. is also not legally sustainable. In fact, the legal position whether an order passed under Section 451 Cr.P.C. is an interlocutory order or not and whether revision against the said order under Section 397 Cr.P.C. is maintainable or not is no more res integra and the same has been well settled.

6) This Court way back in the year 1981 itself in the case of Bharat Heavy Electricals Ltd. v. State1 held at para 15 as follows:

"15. I do not agree with the learned counsel for the respondent that it is an interlocutory order and no revision lies under Section 397(2) Cr.P.C. The order in question substantially affects the rights of the parties. If so, it cannot be considered to be an interlocutory order."

7) In arriving such conclusion, this Court relied on the judgment of the Apex Court in Amar Nath v. State of Haryana2. 1 1981 CriLJ 529 3 CMR, J.

8) In the above case also, an order came to be passed relating to interim custody of the seized property. That was an order passed under Section 457 Cr.P.C. Therefore, the Court held that order passed relating to interim custody of the property seized by the police is not an interlocutory order and that the bar under Section 397(2) Cr.P.C. is not attracted.

9) Subsequently, while relying on the said judgment of the A.P. High Court, the Madras High Court in the case of S.V. Chandran v. The State3 held that an order passed under Section 451 Cr.P.C. is amenable for revisional jurisdiction under Section 397(1) Cr.P.C. The Madras High Court at para 5 held that there is a final determination of right of the party and such determination cannot be construed as one of the interlocutory in nature. Ultimately, the Madras High Court held at para.8 as follows:

"8. Therefore, in the light of the decision of the Supreme Court in Madhu Limaye v. The State of Maharashtra4's case, it can be held that this kind of order is final between the parties deciding their entitlement to the property in question finally at that stage. Therefore, such an order is necessarily subject to revision by the Court and revision against the same is competent before a Court of Session. The view which I have taken has a support from Bharat Heavy Electricals Ltd. v. State1."

10) At para.15 of the aforesaid Madras High Court judgment, it is held as follows:

"15. I do not agree with the learned counsel for the respondent that it is an interlocutory order and no revision lies under Section 2 1977 CriLJ 1891 = AIR 1977 SC 2185 = (1977) 4 SCC 137 3 Order dt.17.12.2018 in Crl.R.C.No.1217 of 2018 of Madras High Court. 4 AIR 1978 SC 47 = (1978) SCR(1) 749 = (1977) 4 SCC 551=1978 Cri LJ 165 4 CMR, J.

397(2) Cr.P.C. The order in question substantially affects the rights of the parties. If so, it cannot be considered to be an interlocutory order. In view of the decision of the Apex Court in Amar Nath v. State of Haryana2, decisions of several High Courts and also the observations of the Hon'ble Supreme Court, as cited supra, the orders passed under Section 451 of Cr.P.C. cannot be essentially an interlocutory order and therefore, Section 397(2) of Cr.P.C. is not attracted."

11) Therefore, the legal position is made very clear that an order under Section 451 Cr.P.C. is not an interlocutory order and it does not attract the bar under Section 397(2) Cr.P.C. and revision under Section 397(1) Cr.P.C. is maintainable.

12) Therefore, in view of the aforesaid legal position, this Criminal Petition filed under Section 482 Cr.P.C. is not maintainable.

13) So, the Criminal Petition is dismissed. However, the petitioner is at liberty to file a revision under Section 397(1) Cr.P.C. questioning the said order passed under Section 451 Cr.P.C. In the event of filing any such revision under Section 397(1) Cr.P.C., the Registry shall register the same and place the same before the appropriate Bench as per roaster.

The miscellaneous petitions pending, if any, shall also stand closed.

________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date:09.07.2021.

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