Gujarat High Court
Lieutenant Colonel Saurabh Iqbal ... vs Dr Ann Saurabh Dutt on 27 October, 2023
NEUTRAL CITATION
R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (FOR QUASHING OF ORDER/STAY) NO. 71 of
2023
With
CRIMINAL MISC.APPLICATION (FIXING DATE OF EARLY HEARING) NO.
1 of 2023 In R/CRIMINAL APPEAL NO. 71 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
LIEUTENANT COLONEL SAURABH IQBAL BAHADUR DUTT
Versus
DR ANN SAURABH DUTT
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Appearance:
MR IQBALBAHADUR T DUTT(11423) for the Appellant(s) No. 1
MR SHAILESH M AHIR(9999) for the Opponent(s)/Respondent(s) No. 1
MS HETALBEN S AHIR(12726) for the Opponent(s)/Respondent(s) No. 1
PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 27/10/2023
ORAL JUDGMENT
1. This appeal is preferred by the original - respondent husband being aggrieved and dissatisfied with the final order dated 30.09.2022, passed below Exh.54 in Family Suit No.2361 of 2017, whereby learned Judge Family Court, Ahmedabad has Page 1 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023 NEUTRAL CITATION R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023 undefined disposed of the application submitted by the present appellant under Section 195 read with Section 340 of the Code of the Criminal Procedure,1973 (for short, "the Code"). The appellant has moved this Court by presenting this appeal under Section 341 of the Code.
2. During the course of hearing, it was noticed that though the order impugned was passed by the Family Court Judge, the present appeal has been preferred as criminal appeal under Section 340 of the Code, against an order of rejection of application (Exh.54) moved by the present appellant. According to the Appellant the original proceedings invoking section 340 of the Code are to be treated as criminal proceedings and statutory appeal under section 341 of the code is prescribed. This criminal appeal is therefore presented under Section 341 of the Code, which is the only provision governing appeal to the Superior Court against order of the subordinate Court before whom the complaint has been made.
3. Having noticed the specific provision of appeal provided under special enactment viz. the Family Courts Act, 1894 ( hereinafter referred as "the Act ''), this Court by order dated 13.04.2023, after hearing the learned advocate Mr. Datt, on record for the appellant as well as the learned advocate Mr. M.I. Mansuri, who had appeared on behalf of the learned advocate on record for respondent No.1, had requested the Registry to verify the listing Page 2 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023 NEUTRAL CITATION R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023 undefined of this appeal. Section 19 of the Act, also provides for appeal before this Court against every judgment and order of the Family Court as well as the High Court Rules suggest hearing of the First Appeal arising out of Special Act like Family Court, by the Hon'ble Division Bench of this Court. In light of the different provisions of different legislation operating in the same field, the Court had proceeded to examine the controversy of maintainability, more so in the form of criminal appeal.
4. In compliance of the aforesaid order dated 13.04.2023, the Registrar (Judicial) submitted that the appeal arising from the proceedings of Family Court is required to be converted into First Appeal and was required to be heard by the Hon'ble Division Bench, taking up the matters of the First Appeal, as per the prevailing roster. The learned advocates on record for the respective parties were requested to go through the aforesaid submissions of the learned Registrar Judicial and to make their submissions.
5. Noticing the controversy involved, the question which falls for consideration to this court is about the nomenclature under which the appeal under Section 341 of the Code against the order of rejection of application under Section 340 of the Code, in the light of provisions of Section 19 of the Family Courts Act, is to be entertained. The applicant has treated the original proceedings under Section 340 of the Criminal Procedure Code as Criminal Page 3 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023 NEUTRAL CITATION R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023 undefined Proceedings. It is canvassed before this Court that the learned Family Judge committed error by not treating it as separate proceedings. In view of the procedure prescribed under Section 340 of the Code, according to learned advocate for the applicant the Family Judge wrongly treated it as interim application by giving an exhibit number in the original proceedings. It is further submitted that even otherwise the provision of appeal under section 341 is prescribed against such an order of rejection being passed on application under Section 340 of the Criminal Procedure Code. Hence, it is submitted that the present appeal would be maintainable as a criminal appeal.
6. Having heard learned advocates appearing for the respective parties and having perused the impugned order, the first question which falls consideration, at the outset is as to :
"Whether an appeal under section 341 of the Criminal procedure code would be maintainable against an order of rejection passed by the Family Judge, on an application filed under section 340 of the Criminal Procedure Code, in view of special provisions of appeal prescribed under subsection (1) and (6) of section 19 of the Family Courts Act,1984? "
Secondly, considering the scope of Sub-section (3) read with Section 195(b)(i) with regard to making of complaint to the Court namely Civil Court, Revenue, Criminal Courts to be more precise, Page 4 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023 NEUTRAL CITATION R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023 undefined even if the forgery is committed in the Civil Court in nature of Civil case, where an enquiry would be conducted under Section 340 of the Code, the words "when such offence alleged to have been committed in respect of documents produced or given in evidence in a proceedings in a Court" under Section 195 of the Code, strictly goes to suggest that such act undoubtedly is treated as an offence. However, the question arises as to whether such criteria ipso facto clothes the Family Court with jurisdiction of criminal court which governs the subsequent appeal?
7. Before considering the aforesaid issues, it would be essential to look into the relevant provisions prescribed under the Code. Section 340 of the Cr.P.C. reads as under:
"Sec. 340. Procedure in cases mentioned in section
195.--(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of Justice that an inquiry should be made into any offence referred to in clause (b) of sub- section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence 152 in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,--
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the Page 5 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023 NEUTRAL CITATION R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023 undefined accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195.
(3) A complaint made under this section shall be signed,--
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
[(b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf.] (4) In this section, "Court" has the same meaning as in section 195."
8. The bare reading of this Section, it is evident that the same provides procedure for offence enumerated in Section 195(1)(b) of the Code. Apt would be to refer to section 195 of the Code as Page 6 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023 NEUTRAL CITATION R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023 undefined well. Section 195 of the Code reads as under:
"Sec. 195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.--(1) No Court shall take cognizance
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or Page 7 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023 NEUTRAL CITATION R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023 undefined
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), 1 [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.] (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub-section (1), the term "Court"
means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the Principal Court having ordinary Page 8 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023 NEUTRAL CITATION R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023 undefined original civil jurisdiction within whose local jurisdiction such Civil Court is situate:
Provided that--
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."
Thus, both Sections 340 and 195 are closely connected and in order to have harmonious construction one is required to read these provisions together. The object of legislation as is evident is to ascertain whether any offence affecting the administration of justice has been committed in relation to any document produced or given in Court during the time when the document or evidence was in "Custodia legis" of the Court concern and also whether it is also expedient in the interest of justice to take such action as required under section 340 of the Code. Ultimately, when the offence is in relation to court proceedings, the sanction of the Court is sought for in a way. The plain reading of the language of the subsection (3) and (4) of section 340 of the Code indicates that it encompasses all kinds of proceedings of all courts, Page 9 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023 NEUTRAL CITATION R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023 undefined irrespective of the fact whether a matter in a court in which alleged offense under Section 195(1)(b) of the Code was committed, was a criminal or civil case.
9. The Section 195 of the Code was amended by substitution of the words "except on the complaint in writing of that Court", or of some other court to that Court subordinate". This amendment was brought into force with effect from 16.04.2006. The object seems to be to protect the person from vexatious prosecution in relation to retaliation. Sub- Section (3) of Section 195 offers the meaning of the term "Court" means the Civil Court, Revenue or Criminal Court, includes the Tribunal constituted by Central or Provincial or said Act, if declared by that Act to be Court for the purpose of this Section. Again Sub- Section (4) of Section 195 provides that for the purpose of Sub- Section (1), the Court shall be deemed to be the Court subordinate to which appeal ordinarily lies.
10. In light of the subsection (3) and (4) of Section 340 of the Code, the subordinate Court will also include, in the present case the Family Court which would be competent to look into the subject related to the provisions of the Section 340 of the Code. It is also evident from the perusal of clause (b) of subsection (2) of section 7 of the Family Courts Act, that the Family Court is also conferred jurisdiction to deal with matters whereby jurisdiction to deal with such matters is conferred under any other enactment. Page 10 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023
NEUTRAL CITATION R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023 undefined In the opinion of this Court, the Family Court is competent to take cognizance of the offence alleged under Section 195 of the Cr.PC.
11. In the present case, the original proceedings were preferred before the Family Court, Ahmedabad. The term "Family Court"
has been defined under Clause (d) of Section 2 of the Family Court Act, 1984, which means a Family Court established under Section 3 of the Act. The issue arose for consideration before the Hon'ble Supreme Court in the case of S.D. Joshi Vs. High Court of Judicature at Bombay and Ors. reported in 2010 (11) scale 712, as to whether the Family Court constituted under Section 3 of the Act is a Court ? The Court held that the Family Court, as defined in s.2(d) and constituted under section 3 of the Family Courts Act, 1984, is a creature of statute and has been vested with power to adjudicate and determine the disputes between the parties which fall within the scope and ambit of Explanation to s.
7(1) of the Act. The Court further observed that the statutory provisions of the Family Court squarely satisfy the essential ingredients and has all the trappings of a Court and, thus, is a court.
12. Again, Section 7 of the Family Court provides about jurisdiction of the Family Court the same reads as under:
"Sec. 7. Jurisdiction. -- (1) Subject to the other provisions of this Act, a Family Court shall --Page 11 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023
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(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
Explanation. -- The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely: --
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship; Page 12 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023
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(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise --
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment."
13. Again on harmonious construction of Section 340 of the Code with Sub-section (4) of Section 195 of the Code, it appears that any person aggrieved by an order of the Court under Section 340 is entitled to file an appeal. The provision for appeal is provided against an order passed under Section 340 of the Cr.PC, by presenting appeal under Section 341 of the Code, which reads as under :
"Sec. 341. Appeal.--(1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (2) of section 340, or against whom such Page 13 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023 NEUTRAL CITATION R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023 undefined a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint, or, as the case may be, making of the complaint which such former Court might have made under section 340, and, if it makes such complaint, the provisions of that section shall apply accordingly.
(2) An order under this section, and subject to any such order, an order under section 340, shall be final, and shall not be subject to revision."
14. In view of this Section, the Court to which the former Court is subordinate within the meaning of Section 195(4) of the Code shall be the appellate court. At the same time, the provision of appeal is included under Chapter - 5 of the Family Courts Act in the form of Section 19. The aforesaid provision was substituted under Chapter - 5 of the Family Courts Act, 1984 by Act 59 of 1991 with effect from 20th December, 1991. The same time insertion was also made by said Act of 59 of 1991 of appeal against order passed under Chapter -9 of the Cr.PC, 1973 . Thus, except for proceedings arising out of the Chapter -9 of the Cr.PC, the special enactment prescribes the procedure of first appeal against "every judgment and order, not being an interlocutory order of the Family Court to the High Court, both on facts and on law". In light of the aforesaid provision, in the opinion of this Page 14 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023 NEUTRAL CITATION R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023 undefined Court except for proceedings under Section 125 to 128 of the Code, Section 19 of the Family Courts Act provides for filing of appeal against final order passed under Section 340 of the Code. The plain reading of section 19 of the Code which starts with the non obstante clause which excludes the applicability of provisions of the Code. Further, Section 20 of the Family Courts Act provides that the provisions of the Special enactment i.e. The Family Court Act shall have an overriding effect. Thus, in the opinion of this Court upon bare comparison of the provisions of the appeal provided under Section 341 of the Code as against Section 19 of the Family Courts Act, the provisions of the special enactment would govern the field.
15. Ordinarily, the appellate jurisdiction to re-hear on law as well as on facts, is invoked by aggrieved persons. In the process of Appeal, there shall be judicial examination of decisions of the subordinate court, which would be followed by re-appreciation of the evidence, followed by conscious application of mind which would be displayed from the recording of findings supported by reasons of issues and contentions. During such exercise as a higher court, it would be upon the Appellate Court to rectify any possible error of order under appeal. A similar issue fell for consideration before the Hon'ble Supreme Court in the case of Kuldip Singh Vs. The State of Punjab reported in AIR 1956 SC 391. In this case, the question which arose for consideration before the Bench of five Judges, was that so as to which court Page 15 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023 NEUTRAL CITATION R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023 undefined would have jurisdiction to entertain appeal filed against the order passed by the subordinate Court in an application moved under Section 340 of the Cr.P.C. requesting to file a complaint against a party who allegedly committed offence under Section 193 of the IPC. After referring to the various provisions in the Criminal Procedure Code and provisions prescribed under the Punjab Courts Act, the Hon'ble Supreme Court held that "the Court competent to exercise these powers is the Court to which appeals from the original Court "ordinarily" lie. That Court in the present case was the Court of the District Judge and not the Court of the Additional District Judge."
16. Again, in the case of M.S. Sheriff vs. State of Madras reported in AIR 1954 SC 397, on the facts of the case, it was noticed that an application was filed under Section 475 of Cr.P.C. requesting the High Court to prosecute two Police Officers for perjury under Section 193 of IPC. The question which arose for consideration before the Hon'ble Supreme Court was in which the Court an appeal should be filed against the order passed by the (Division Bench) High Court. The Court took notice of the relevant portion of the provision under Section 476B of the old Code relevant to appeal. The Hon'ble Supreme Court observed that "before we can apply the definition, we have first to see whether there is a class of decrees or sentences in the Court under consideration which are at all open to appeal. If there are not, the matter ends and there is no right to appeal under Section 476B. If Page 16 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023 NEUTRAL CITATION R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023 undefined there are, then we have to see to which those appeals will "ordinarily lie".
17. Subsequently, the High Court of Madhya Pradesh, in the case of Harishankar v. Khyalichandra , reported in 1991 Criminal Law Journal 2183 , had an occasion to deal with similar question of whether an appeal under Section 341 of the Code, challenging a decision of the Civil Court under section 340 of the Code would lie to the Court exercising appellate powers under the Code or the Court exercising appellate powers under the Civil Court Act ?. The learned Judge had referred to the various decisions of the different High Courts as well as the aforesaid decisions of the Hon'ble Supreme Court and held that order passed by the Civil Court can be challenged only before appellate court by preferring established powers conferred on the High Court by Article 227 of the Constitution of India and Section 447 of the Cr.P.C.
18. The Court held that an application filed in Civil Court under Section 340 of the Code, which is registered as an interlocutory application, then appeal challenging the order of such Court is maintainable only in the Court in which appeal against decrees / orders of such Court may be filed under provision of the Civil Court Act. The order of the Civil appellate Court cannot be challenged under Section 482 of the Code. Accordingly, the Court held that objection raised by the Registrar was not sustainable. Page 17 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023
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19. Similar question arose for consideration before the High Court of Kerala in the case of V.A. Rocky Vs. Pavunni & Ors, reported in 2015 Criminal Law Journal 884, where the application was filed under Section 340 of the Code against the plaintiff, seeking an inquiry in a pending civil suit. The Munsiff's Court rejected such application against such order against which the petitioner had preferred criminal appeal before the Court of Sessions. In the light of Section 341 of the Code, learned additional Sessions Judge dismissed the appeal as not maintainable against an order passed by the Civil Court under Section 340 of the Code. The matter was further taken before the High court by filing a petition under Article 227 of the Constitution of India. The Court upon noticing the provisions of Section 340 of the Code, which empowers the Civil Court to conduct an inquiry and to make a complaint, held that the Criminal Appeal can be prayed before the Sessions Court under Section 341 of the Code only against the order passed by the Criminal Court, when such order passed by the Civil Court, the remedy is to file appeal against such order before the appellate Court on the Civil side and hence, the court dismissed the petition conferring the aforesaid view of the learned Sessions Judge.
20. It is settled legal position that appeal is continuation of the original proceedings, if one goes by the plain reading of language Page 18 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023 NEUTRAL CITATION R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023 undefined of Sub-section 4 of Section 195, the term "Court" includes Civil Court, Revenue, Criminal Courts and even Courts constituted under the Central Act. Precise object of conferring jurisdiction on the concern "Court" is the one who is seized of the original proceedings and having charge of original record of proceedings would be in better position to adjudicate on the issue of filing of complaint after satisfying itself prima-facie to the correctness of the offence said to have been committed under Section 195(i)(ii). Thus, the Court of the original proceedings is in charge of the original record, and would be in a better position to take cognizance of the offence alleged. The aforesaid object can be inferred from the very fact that the term "Court" is explained under Sub-section 3 of Section 195 to include not only Civil Court, Revenue and Criminal Court but also Tribunal declared notified under Central Act. Further reading of Section 341 of the Code goes to manifest the aforesaid object of legislation, where the appeal is to be preferred to the Court to which such former Court is subordinate within the meaning of Sub-section 4 of Section
195. Thus, the forum of appeal against order of subordinate Court would be derived from the jurisdiction of the subordinate Court.
21. In the facts of the case, the concerned Family Court is the court conferred with the jurisdiction to decide the application under Section 340 of the Code, more particularly, in light of the term "Court " as explained under Sub- section 3 of Section 195. The fate of filing of appeal under Section 341 of the Code, Page 19 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023 NEUTRAL CITATION R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023 undefined therefore be governed by the jurisdiction of the subordinate court. Considering the provisions of the Family Courts Act, more particularly Section 19, the forum to file appeal against the order, not being an interlocutory order, would lie to the High Court. Indisputably, the original proceedings before the Family Court were treated as interim application bearing Exhibit No.54 in original proceedings, which were registered as Family Suit No. 1082 of 2019. These aforesaid proceedings were initiated in the form of petition under Section 27(1)(b) and 27(1)(d) and Section 38 of the Special Marriage Act, 1954, which were persuaded by the power of attorney for obtaining decree of divorce as well for getting custody of the child from the respondent - wife.
22. Having held so, so far as second issue is concerned, it would be relevant to look into section 10 of the Act, which reads as under :
"Section 10. Procedure generally.--
(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the Page 20 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023 NEUTRAL CITATION R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023 undefined powers of such court.
(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other."
In view of the aforesaid legal provision it is evident that except for the proceedings arising out of chapter IX of the Criminal Procedure Code, rest of the proceedings and suits are governed by the Civil Procedure Code. Noticing the relevant provisions of the Criminal Procedure Code and the Family Courts Act, the appeal would lie under Section 19 of the Family Courts Act in the form of first appeal and not as a criminal appeal under Section 341 of the Code. The Court further notices Rule-217 of the Gujarat High Court Rules, 1993, which provides for hearing of the appeal by the Hon'ble Division Bench. The aforesaid Page 21 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023 NEUTRAL CITATION R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023 undefined rule is included under the separate Chapter -XX which specifically deals with the subject of "Appeals under the Special Acts". The said rule reads as under:
"Rule 217: Hearing of appeals by Division Bench. -
All appeals under the Special Acts required to be filed in the High Court shall be registered as First Appeals and shall be dealt with according oth te procedure prescribed for first appeals under the Special Acts and /or Rules made there under and in absence of any such prescription in the Special Acts shall be governed by the procedure prescribed in these Rules in relation to the regular First Appeals under the Code of Civil Procedure."
Having noticed the aforesaid nature of the proceedings, this Court is of the opinion that the against the order passed under section 340 of the Code, the right of re-hearing as well as reappreciation on law and on facts, the present appeal would be maintainable under Section 19 of the Family Courts Act, under the nomenclature as first appeal and not in the form of criminal appeal under Section 341 of the Code.
23. Additionally, the plain reading of the aforesaid rule also goes to indicate that all appeals under the Special Acts filed in the Page 22 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023 NEUTRAL CITATION R/CR.A/71/2023 JUDGMENT DATED: 27/10/2023 undefined High Court shall be registered as "First Appeals" and required to be dealt with according to the procedure prescribed under the said Rules made there under. It further clarifies that in absence of any such prescription under the Special Act, the same shall be governed by the procedure prescribed under the High Court Rules with regard to the regular First Appeals under Civil Procedure Code.
24. Hence, this Court is of the firm view that the present criminal appeal is not maintainable in the present form and the challenge is required to be made by filing First Appeal in terms of Section 19 of the Family Courts Act and Rule 217 of the Gujarat High Court Rules, 1993.
25. It is further clarified that this Court has only gone into the aspect of maintainability of the appeal as presented and has not examined the merits of the case. The present appellant is at liberty to challenge the impugned order by filing the First Appeal before this Court in accordance with law, along with an application seeking condonation of delay. With these observations, present appeal stands disposed as not maintainable.
(NISHA M. THAKORE,J) prk Page 23 of 23 Downloaded on : Fri Oct 27 20:54:03 IST 2023