Andhra Pradesh High Court - Amravati
P.Hussain Chiddu Master vs The State Of Andhra Pradesh, on 9 July, 2021
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
CMR, J.
Crl.P.No.2710 of 2021
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
CMR, J.
Crl.P.No.2710 of 2021
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
CMR, J.
Crl.P.No.2710 of 2021
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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