# Smt. Nirmala Devi v. State of U.P. & Ors. 902 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2025) 9 ILRA 901
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-16
- **Case number:** Criminal Appeal No. 11573 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-nirmala-devi-v-state-of-u-p-ors-902-indian-law-reports-allahabad-series-53786
- **Pages:** 9

## Headnote

filed under section 340 Cr.PC by the family court
should be filed under section 19 of the Family
Courts Act, 1984 or Section 341 CrPC.

Headnotes
A. Criminal matter-Criminal Procedure
Code,1973-Section 340, 341 & Family
Court Act,1984-Section 19-The Family
Courts Act,1984, is a Special Act, and the
Code of Criminal Procedure is a general
act, therefore, the provisions of the
Act,1984 prevails over the provision of
CrPC-Section 19 of the Act,1984 provides
not only the right and procedure but also
the forum for filing an appeal against the
order of the Family Court, directing it to
the High Court and requiring it to be heard
by a Bench consisting of two or more
Judges(Division Bench).Appeal dismissed.
Held
The appellant filed an application u/s 125 Crpc
for maintenance against respondent no.2-The
appellant filed an application u/s 340 CrPC
alleging that respondent no. 2 filed an
incorrect/false affidavit regarding his income.
The court held that Section 19 of the Act,1984
contains non-obstante clause and will prevail
over Section 341 crpc concerning the forum and
limitation for the appeal. An order passed u/s
340 Crpc is considered a final order, not an
interlocutory order, because it finally decides the
issue of whether a prima facie case is made out
for filing a complaint for perjury. As section 19
allows an appeal from every judgment or order
not being an interlocutory order, it covers the
section 340 order -The court relied on the
judgment in Jitendra Kumar Lakhmani Vs. State
of U.P. & Another, which held that an appeal
against a section 340 Cr.PC order passed by the
Family Court would lie under section 19 of the
Act,1984 and not section 341 Cr.PC-The present
appeal is not maintainable.(Para 7 to 21) (E-6)
Case law Cited
Smt. Sufia Vs State of U.P. & 3 Ors (Application
u/s 528 BNSS No. 33290 of 2025), State of A.P.
Vs V. Sarma Rao & Ors (2007) 2 SCC 159, Shah
Bahulal Khimji Vs Jayaben AIR (1981) SC 1786,
Jitendra Kumar Lakhmani Vs State of U.P. &
Anr. in Criminial Appeal No. 3030 of 2024, M.S.
Sheriff Vs State of Madras (1954) 1 SCC 524referred to.

List of Acts
Criminal Procedure Code,1973, Family Court
Act,1984.

List of Keywords

Case Arising from

CRIMINAL
APPELLATE
JURISDICTION-
CRIMINAL APPEAL No. - 11573 of 2024

From the Judgment and Order dated 16.09.
2025 of the High Court of Judicature at
Allahabad.
Smt. Nirmala Devi Vs. State of U.P. & 3 Ors

Appearances for Parties
Counsel for Appellant(s)
Ajai Kumar Srivastava, Amit Kumar Satsangi
Counsel for Respondent(s)
G.A. Santosh Kukmar Tiwari

## Text

9 All. Smt. Nirmala Devi Vs. State of U.P. & Ors.
901
Accordingly,
Exception
2
of
Section 375 I.P.C was struck down and it
was held that :-

 "88.
In
view
of
the
above
discussion, I am clearly of the opinion that
Exception 2 to Section 375 IPC in so far as it
relates to a girl child below 18 years is liable to
be struck down on the following grounds:?

 (i)
it
is
arbitrary,
capricious,
whimsical and violative of the rights of the girl
child and not fair, just and reasonable and,
therefore, violative of Article 14, 15 and 21 of
the Constitution of India;

 (ii) it is discriminatory and violative
of Article 14 of the Constitution of India and;

 (iii) it is inconsistent with the
provisions of POCSO, which must prevail.

 Therefore, Exception 2 to Section
375 IPC is read down as follows:

 "Sexual intercourse or sexual acts
by a man with his own wife, the wife not
being 18 years, is not rape".

 It is, however, made clear that this
judgment will have prospective effect.

 89. It is also clarified that Section
198(6) of the Code will apply to cases of rape
of "wives" below 18 years, and cognizance
can be taken only in accordance with the
provisions of Section 198(6) of the Code."

25. From the foregoing observations
as held by Hon'ble Supreme Court in
Independent Thought (supra), it is very much
apparent that exception 2 of Section 375 IPC
has been struck down on the ground that said
provision is inconsistent with the provisions of
POCSO Act and is also violative of Article 14,
15 and 21. But it has also been held that the
said judgment of Supreme Court will have
prospective effect. In this particular case, it is
apparent that alleged occurrence had occurred
way back in the year 2005. Therefore,
appellant cannot be held guilty for commission
of rape because victim at the time of
occurrence was above 16 years and physical
relations between the two had taken place after
solemnisation of their marriage.

26. In view of the above, the present
appeal is allowed and the appellant is
acquitted of the charges.

27.
Accordingly,
judgment
of
conviction and order of sentence is set aside.
The appellant is on bail and his personal bond
is cancelled and sureties are discharged and
further directed to furnish bail bond in
compliance of Section 437-A Cr.P.C. to the
satisfaction of the Court concerned within two
month from today.

28. The Trial Court's record be
remitted back along with copy of this
judgment.

29. Compliance report be submitted
to this Court at the earliest. Office is directed
to keep the compliance report on record.
----------
(2025) 9 ILRA 901
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.09.2025

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Appeal No. 11573 of 2024

Smt. Nirmala Devi ...Appellant
Versus
State of U.P. & Ors. ...Respondents
902 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Ajai
Kumar
Srivastava,
Amit
Kumar
Satsangi

Counsel for the Respondents:
G.A., Santosh Kumar Tiwari

Issue for Consideration
The main point of contention was whether an
appeal against the rejection of an application
filed under section 340 Cr.PC by the family court
should be filed under section 19 of the Family
Courts Act, 1984 or Section 341 CrPC.

Headnotes
A. Criminal matter-Criminal Procedure
Code,1973-Section 340, 341 & Family
Court Act,1984-Section 19-The Family
Courts Act,1984, is a Special Act, and the
Code of Criminal Procedure is a general
act, therefore, the provisions of the
Act,1984 prevails over the provision of
CrPC-Section 19 of the Act,1984 provides
not only the right and procedure but also
the forum for filing an appeal against the
order of the Family Court, directing it to
the High Court and requiring it to be heard
by a Bench consisting of two or more
Judges(Division Bench).Appeal dismissed.
Held
The appellant filed an application u/s 125 Crpc
for maintenance against respondent no.2-The
appellant filed an application u/s 340 CrPC
alleging that respondent no. 2 filed an
incorrect/false affidavit regarding his income.
The court held that Section 19 of the Act,1984
contains non-obstante clause and will prevail
over Section 341 crpc concerning the forum and
limitation for the appeal. An order passed u/s
340 Crpc is considered a final order, not an
interlocutory order, because it finally decides the
issue of whether a prima facie case is made out
for filing a complaint for perjury. As section 19
allows an appeal from every judgment or order
not being an interlocutory order, it covers the
section 340 order -The court relied on the
judgment in Jitendra Kumar Lakhmani Vs. State
of U.P. & Another, which held that an appeal
against a section 340 Cr.PC order passed by the
Family Court would lie under section 19 of the
Act,1984 and not section 341 Cr.PC-The present
appeal is not maintainable.(Para 7 to 21) (E-6)
Case law Cited
Smt. Sufia Vs State of U.P. & 3 Ors (Application
u/s 528 BNSS No. 33290 of 2025), State of A.P.
Vs V. Sarma Rao & Ors (2007) 2 SCC 159, Shah
Bahulal Khimji Vs Jayaben AIR (1981) SC 1786,
Jitendra Kumar Lakhmani Vs State of U.P. &
Anr. in Criminial Appeal No. 3030 of 2024, M.S.
Sheriff Vs State of Madras (1954) 1 SCC 524referred to.

List of Acts
Criminal Procedure Code,1973, Family Court
Act,1984.

List of Keywords

Case Arising from

CRIMINAL
APPELLATE
JURISDICTION-
CRIMINAL APPEAL No. - 11573 of 2024

From the Judgment and Order dated 16.09.
2025 of the High Court of Judicature at
Allahabad.
Smt. Nirmala Devi Vs. State of U.P. & 3 Ors

Appearances for Parties
Counsel for Appellant(s)
Ajai Kumar Srivastava, Amit Kumar Satsangi
Counsel for Respondent(s)
G.A. Santosh Kukmar Tiwari

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1.
Heard
Sri
Chetan
Prakash,
Advocate, holding brief of Sri Ajai Kumar
Srivastava,
learned
counsel
for
the
appellant, Sri Pawan Kumar Dubey,
Advocate, holding brief of Sri Santosh
Kumar
Tiwari,
learned
counsel
for
respondent nos.2, 3 and 4 and Sri D.P.S.
Chauhan, learned AGA for the State.

2. The appellant-applicant has
preferred the present criminal appeal
against the judgment and order dated
10.10.2024 passed by the Learned Principal
Judge Family Court, Prayagraj/Allahabad,
in Misc. Case No. 414 of 2024, Police
9 All. Smt. Nirmala Devi Vs. State of U.P. & Ors.
903
Station
Kydganj,
District
Prayagraj,
whereby the application filed by the
appellant
under Section
340
Cr.P.C.
(corresponding to Section 379 BNSS) read
with Section 191, 193, 199 and 209 Cr.P.C.
has been rejected.

3. Shorn of unnecessary facts, the
prosecution's case is that the appellant has
filed an application u/s 125 Cr.P.C. before
the
Principal
Judge,
Family
Court,
Prayagraj, for maintenance against opposite
party
no.2.
During
that
proceeding,
respondent no.2 had filed an affidavit
regarding his income and liability as required
in the case of Rajnesh Vs. Neha & Another
reported in (2021) 2 SCC 324. Appellant
filed
an
application
u/s
340
Cr.P.C.
(corresponding to Section 379 BNSS) for
conducting a preliminary enquiry to file a
complaint against the respondent nos.2, 3 and 4
on the ground that respondent no.2 had filed
incorrect and false evidence through his
affidavit and respondent nos.3 and 4 also
supported that false evidence. The Principal
Judge, Family Court, rejected that application
vide judgement and order dated 10.10.2024,
against which the present appeal has been filed.

4. A preliminary objection was
raised by learned AGA as well as learned
counsel for the private respondents that
against the order passed by the Family
Court, there is specific provision of filing
an appeal u/s 19 of the Family Courts Act,
1984 (in short 'the Act, 1984') which would
prevail
under
Section
341
Cr.P.C.
(corresponding to Section 380 BNSS).
Therefore, the present appeal is not
maintainable as the appellant can file an
appeal against the impugned judgment of
the Family Court u/s 19 of the Act, 1984.

5. In reply to the above preliminary
objection, learned counsel for the appellant
has submitted that there is a specific
provision
under
Section-341
Cr.P.C.
(corresponding to Section 380 BNSS) for
filing appeal against the rejection of the
application u/s 340 Cr.P.C. (corresponding to
Section 379 BNSS), therefore, merely
because the Family Court has passed the
order, appeal cannot be said to be not
maintainable because Section 19 of the Act,
1984 also provides provision for filing appeal
against the order passed by the Family Court.

6. The crux of the matter is
whether an appeal against the order u/s 340
Cr.P.C. (corresponding to Section 379
BNSS) passed by the Family Court, should
be filed under u/s 19 of the Act, 1984 or u/s
341 Cr.P.C. (corresponding to Section 380
BNSS). To resolve this, it's pertinent to
quote Section 19 of the Act, 1984, which is
as follows:

 "19. Appeal.-(1) Save as provided
in sub-section (2) and notwithstanding
anything contained in the Code of Civil
Procedure,1908 (5 of 1908) or in the Code
of Criminal Procedure, 1973 (2 of 1974) or
in any other law, an appeal shall lie from
every judgment or order, not being an
interlocutory order, of a Family Court to
the High Court both on facts and on law.

 (2) No appeal shall lie from a
decree or order passed by the Family Court
with the consent of the parties [or from an
order passed under Chapter IX of the Code
of Criminal Procedure, 1973 (2 of 1974):

 Provided that nothing in this subsection shall apply to any appeal pending
before a High Court or any order passed
under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974) before the
commencement of the Family Courts
(Amendment) Act, 1991 (59 of 1991).]
904 INDIAN LAW REPORTS ALLAHABAD SERIES
 (3) Every appeal under this
section shall be preferred within a period
of thirty days from the date of the judgment
or order of a Family Court.

 (4) The High Court may, of its
own motion or otherwise, call for and
examine the record of any proceeding in
which the Family Court situate within its
jurisdiction passed an order under Chapter
IX of the Code of Criminal Procedure,
1973 (2 of 1974) for the purpose of
satisfying itself as to the correctness,
legality or propriety of the order, not being
an interlocutory order, and as to the
regularity of such proceeding.

 (5) Except as aforesaid, no
appeal or revision shall lie to any court
from any judgment, order or decree of a
Family Court.

 (6) An appeal preferred under
sub-section (1) shall be heard by a Bench
consisting of two or more Judges."

7. From the perusal of Section 19
of the Act, 1984, it is clear that it provides,
notwithstanding anything contained in
Cr.P.C. except the exception given in Subsection (2) of Section 19, the appeal against
any
order
except
the
order
of
an
interlocutory nature u/s 19 of the Act, 1984.
Section 19(2) of the Act, 1984 provides
that an appeal u/s 19 of the Act, 1984
would not lie if the Family court passes the
order under Chapter IX of Cr.P.C. Chapter
IX of Cr.P.C. provides the provision for
maintenance u/s 125 Cr.P.C. as well as
execution thereof. It is not in dispute that
initially an application was filed by the
appellant u/s 125 Cr.P.C., which comes
under Chapter IX of Cr.P.C. But the
impugned order, which was passed u/s 340
Cr.P.C. (corresponding to Section 379
BNSS), does not come under Chapter IX of
the Cr.P.C. For ready reference, Section
340 Cr.P.C. (corresponding to Section 379
BNSS) is being quoted as under:

 "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 interest 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 evidence 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)
 (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 accused before such
Magistrate, or if the alleged offence is nonbailable 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
9 All. Smt. Nirmala Devi Vs. State of U.P. & Ors.
905
has neither made a complaint under subsection (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.] [ Substituted by
Act 2 of 2006, Section 6, for Cl. (b)
(w.e.f.
16-4-2006).
Prior
to
its
substitution, Cl (b) read as under : -
[(b) in by other case, by the presiding
officer of the Court].]

 (4) In this section, "Court" has
the same meaning as in Section 195."

8. The Section 340 Cr.P.C.
(corresponding to Section 379 BNSS)
shows that it relates to conducting a
preliminary enquiry before filing a
complaint for giving false affidavit before
a court in a judicial proceeding. Section
341 Cr.P.C. (corresponding to Section
380 BNSS) provides an appeal against
the
order
passed
u/s
340
Cr.P.C.
(corresponding to Section 379 BNSS).
Section 341 Cr.P.C. (corresponding to
Section 380 BNSS) is being quoted as
under:

 "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 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 95,
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."

9. From the above-quoted Section
341 Cr.P.C. (corresponding to Section 380
BNSS), it is also clear that if an order u/s
340 Cr.P.C. (corresponding to Section 379
BNSS) is passed by a court (whether civil,
criminal or revenue), then the appeal would
lie before the Court which ordinarily hears
the appeal against the order of that Court.
Therefore, if an order u/s 340 Cr.P.C.
(corresponding to Section 379 BNSS) is
passed by a civil Court, revenue court or
criminal Court, the appeal would lie on the
respective side to the appellate Court, even
though the provision for conducting an
enquiry and filing a complaint for giving
false evidence has been provided in Cr.P.C.
This Court has also considered this issue in
the case of Smt. Sufia Vs. State of U.P.
And 3 Others (Application u/s 528 BNSS
No.33290 of 2025), decided on 03.09.2025,
wherein the Court observed that if the
Consolidation Officer has passed an order
906 INDIAN LAW REPORTS ALLAHABAD SERIES
u/s 340 Cr.P.C. (corresponding to Section
379 BNSS), then the appeal would lie
before the Settlement Officer Consolidation
in view of Section 11 of the Uttar Pradesh
Consolidation
Holdings
Act,
1953.
Paragraph no.9 of Sufia's case (supra) is
being quoted as under:

 "9. In view of the above analysis,
this court is of the opinion that application
u/s 340 Cr.P.C. (corresponding Section 379
BNSS) is maintainable and Consolidation
Officer or other consolidation authorities
would be, well within their jurisdiction to
conduct preliminary enquiry regarding the
offence u/s 195(1)(b) Cr.P.C. relating to
giving or producing false document or
evidence before it and after enquiry if the
consolidation authorities are of the opinion
that prima facie offence referred to in clause
(b) of sub-section (1) of section 195 Cr.P.C.
is made out then it will record its finding to
that effect and make such complaint in
writing and send it to the Magistrate of first
class having jurisdiction thereof."

10. The Apex Court in the case of
State of A.P. Vs. V. Sarma Rao & Others
reported in (2007) 2 SCC 159 observed
that an appeal against the order passed in
Section 340 Cr.P.C. (corresponding to
Section 379 BNSS) would lie to the
appellate forum created by the Special Act
under which proceeding, application u/s
340 Cr.P.C. (corresponding to Section 379
BNSS) has been filed and further observed
that the Land Acquisition Act is Special
Act which provides for the forums, both
original and appellate. Paragraph nos.16
and 17 of V. Sarma Rao (supra) are being
quoted as under:

 "16. In our opinion, it would not
be. The Court of the Subordinate Judge
may be subordinate to District Judge for
administrative purpose. He may be a court
subordinate to it under the Code of Civil
Procedure. But in relation to a proceeding
under the Land Acquisition Act, it would
not be. We have noticed that in terms of
Section 53 of the Land Acquisition Act, the
procedures laid down under the Civil
Procedure Code would apply but the same
is subject to the exceptions specified
therein viz. save insofar as they may be
inconsistent
with
anything
contained
therein. The Land Acquisition Act is a
special statute. It provides for the forums,
both original and appellate. Section 2(4) of
the Code of Civil Procedure, 1908 defines
"district" to mean the local limits of the
jurisdiction of a Principal Civil Court of
original jurisdiction, also known as District
Court. It also includes local limits of the
ordinary original civil jurisdiction of a
High Court. Section 3 thereof provides
hierarchy of the courts in the following
terms:

 "3. Subordination of courts.?For
the purposes of this Code, the District
Court is subordinate to the High Court,
and every civil court of a grade inferior to
that of a District Court and every Court of
Small Causes is subordinate to the High
Court and District Court."

 17. What is of significance is that
the subordination of courts as specified
therein is only for the purpose of the said
Code and not for the purpose of a special
Act, although the provisions thereof may be
applicable to a case arising thereunder.
Section 96 of the Code provides that an
appeal shall lie from every decree passed
by
any
court
exercising
original
jurisdiction to the court authorised to hear
appeals from the decisions of such court.
The court entitled to hear the appeals from
a decree passed by a trial court, therefore,
9 All. Smt. Nirmala Devi Vs. State of U.P. & Ors.
907
must be authorised therefor. It is one thing
to say that an appeal, depending upon the
valuation,
would
lie
before
different
forums, but if under the provisions of a
special statute an appeal shall lie only
before the High Court and to no other, the
District Court would not be a court where
an appeal would ordinarily lie from a
judgment of the Land Acquisition Judge.
The Land Acquisition Act being selfcontained code; in relation to the matters
falling within the purview of the Land
Acquisition Act, the civil courts would have
no jurisdiction."

11. Similarly, Section 19 of the
Act, 1984 also provides that the appeal
against the order passed by the Family
Court would lie before the High Court and
the same shall be heard by a Division
Bench or a Bench having the strength of
more than two Judges. Therefore, Section
19 of the Act, 1984 provides not only the
right and procedure but also the forum for
filing an appeal against the order of the
Family
Court.
Section
341
Cr.P.C.
(corresponding to Section 380 BNSS) only
provides the right to file an appeal against
the
order
passed
u/s
340
Cr.P.C.
(corresponding to Section 379 BNSS) by
any court. Therefore, there is no conflict
between
Section
341
Cr.P.C.
(corresponding to Section 380 BNSS) and
Section 19 of the Act, 1984, except the fact
that Section 19 of the Act, 1984, also
provides the forum for filing an appeal
against the orders passed by the Family
Court, including the order u/s 340 Cr.P.C.
(corresponding to Section 379 BNSS).
Section 19 of the Act, 1984, contains a
non-obstante clause; therefore, it will
prevail
over
Section
341
Cr.P.C.
(corresponding to Section 380 BNSS) so
far as the forum and limitation are
concerned. Apart from this, the Act, 1984
is a Special Act and Cr.P.C. is a General
Act, therefore, the provision of the Act,
1984 will prevail over the provision of
Cr.P.C.

12. However, Section 19 of the
Act, 1984 provides that no appeal lies
against the interlocutory order. Therefore,
the question arises whether the order
passed u/s 340 Cr.P.C. (corresponding to
Section 379 BNSS) is an interlocutory or a
final order. This issue is no longer res
integra, as the Apex Court has decided this
issue in the case of Shah Babulal Khimji
vs. Jayaben, reported in AIR 1981 SC
1786 and held that an order which decides
the issue finally will not be interlocutory
but a final order. In Section 340 Cr.P.C.
(corresponding to Section 379 BNSS), the
Court finally decided the issue of whether a
prima facie case is made out for filing a
complaint for perjury or not. Therefore, the
order
passed
u/s
340
Cr.P.C.
(corresponding to Section 379 BNSS) is
not the interlocutory but a final order.

13. A coordinate Bench of this
Court has also considered this issue in
Jitendra Kumar Lakhmani Vs. State of
U.P. & Another in Criminal Appeal
No.3030
of
2024
vide
order
dated
25.09.2024 regarding maintainability of
appeal against the order passed by the
Family
Court
u/s
340
Cr.P.C.
(corresponding to Section 379 BNSS) and
observed that if the order u/s 340 Cr.P.C.
(corresponding to Section 379 BNSS) has
been passed by the Family Court then
appeal would lie u/s 19 of the Act, 1984 not
u/s 341 Cr.P.C. (corresponding to Section
380 BNSS). Paragraph no.13 of the above
judgment is being quoted as under :

 "13. Considering the aforesaid, it
is thus apparent that in case the appellant
908 INDIAN LAW REPORTS ALLAHABAD SERIES
herein is aggrieved by an order by which
his application under Section 340 of the
Code has been rejected consequently the
only remedy available to him is to
challenge the said order by filing of an
appeal under Section 19(1) of the Act, 1984
and the appeal fled under the provisions of
the
Code
or
BNSS
would
not
be
maintainable keeping in view the nonobstante clause as per sub-section (1) of
Section 19 of the Act, 1984 and the Act,
1994 being a Special Act."

 14. As per Section 10 of the Act,
1984, proceedings before the Family Court
shall be as per the Civil Procedure Code
except for the order passed under Chapter
IX of the Cr.P.C. (Section 125 to 128) and
as per Section 18 of the Act, 1984, the
decree or order of Family Court shall be
executed as decree or order of civil Court.
Sections 10 and 18 of the Act, 1984 are
being quoted as under:

 "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 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.

 18. Execution of decrees and
orders.-(1) A decree or an order [other
than an order under Chapter IX of the
Code of Criminal Procedure, 1973 (2 of
1974)], passed by a Family Court shall
have the same force and effect as a decree
or order of a civil court and shall be
executed in the same manner as is
prescribed by the Code of Civil Procedure,
1908 (5 of 1908) for the execution of
decrees and orders.

 (2) An order passed by a Family
Court under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974) shall
be executed in the manner prescribed for
the execution of such order by that Code.

 (3) A decree or order may be
executed either by the Family Court which
passed it or by the other Family Court or
ordinary civil court to which it is sent for
execution."

15. Therefore, in view of Sections
10 and 18 of the Act, 1984, procedure
before the High Court in a Family Court
Appeal would be as per the Civil Procedure
Code

16. The Apex Court in the case of
M.S. Sheriff Vs. State of Madras reported
in (1954) 1 SCC 524 observed that while
considering the application u/s 340 Cr.P.C.
(corresponding to Section 379 BNSS), the
Court is required to consider whether "it is
9 All. Chandrakesh Bhardwaj Vs. State of U.P. & Anr.
909
expedient in the interest of justice"
that an enquiry should be made and a
complaint is to be filed.

17. Therefore, from the above
discussion, it is clear that proceeding u/s
340 Cr.P.C. (corresponding to Section 379
BNSS) is neither criminal nor civil but can
be termed as quasi-criminal.

18. It is clear from the above
analysis that an appeal arising from an
order issued under Section 340 Cr.P.C.
(corresponding to Section 379 BNSS) by
the Family Court should be filed in
accordance with Section 19 of the Act of
1984, specifically before the Division
Bench of the High Court. Section 19
clearly does not preclude the appeal
procedures outlined in Section 341
Cr.P.C. (corresponding to Section 380
BNSS) instead, it establishes a definitive
forum and procedural framework for
such appeals, directing them to the
Division Bench of the High Court.

19. Furthermore, it is critical to
recognize that an appeal against an order
issued under Section 340 Cr.P.C. by the
Family Court is not appropriate in a
criminal court setting. Instead, it must be
duly submitted under Section 19 of the Act
of 1984 to the Division Bench of the High
Court, following the procedural guidelines
and limitations prescribed therein. This
clarification serves to eliminate any
ambiguity regarding the proper channel
for pursuing such appeals.

20. In view of the above, the
present appeal is not maintainable before
this Court.

21. Accordingly, the present appeal
is rejected with liberty to the appellant to
file an appeal u/s 19 of the Act, 1984,
before the appropriate Bench.
----------
(2025) 9 ILRA 909
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2025

BEFORE

THE HON'BLE JITENDRA KUMAR SINHA, J.

Criminal Appeal No. 11944 of 2024

Chandrakesh Bhardwaj ...Appellant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellant:
R.P.S. Chauhan

Counsel for the Opposite Parties:
Deepak Upadhyay, G.A., Sarvesh Kumar
Mishra

Issue for Consideration
The appellant has been summoned to face
the
trial
u/s
204
Cr.PC-The
appellant
contended that the subsequent prosecution
was barred because a prior case had already
been registered against him and the coaccused on identical facts.

Headnotes
A. Criminal matter-Scheduled Castes &
Scheduled Tribes (Prevention of Atrocities
Ac),1989-Section 14-A(1), 3(2)5-Indian
Penal Code,1860-Sections 406, 420, 467,
468,
471,
120-B,
506-Civil
dispute
Vs.Criminality-The allegations primarily
concerning the non-return of earnest
money, related to civil dispute for which a
civil remedy exists, and giving it the
"colour of criminality" amounts to abuseThe court concluded that the criminal
proceedings were manifestly attended
with mala fide and were not sustainableAppeal allowed.
Held
The court found that the complaint was lodged
with the intent and purpose of putting pressure