In Re: Lakshmanan Nadar and Others

Yahya Ali, J.—This is an application to quash the charge and proceedings in P.R.C. No. 1 of 1947 on the file of the Second Class

Magistrate, Ambasamudram Two contentions are raised by Mr. Krishnamurthi. The first is that, as the facts. of the complaint disclose an offence

u/s 206 of the Indian Penal Code there should be a written complaint by the District Munsiff''s Court, Ambasamudram u/s 195(1)(b), Criminal

Procedure Code, and that in the absence of such a complaint, an enquiry even into the charge of decoity which forms the subject-matter of this

case cannot proceed. The second objection is that on the showing of the complaint itself there was no dishonest intention on the part of the

petitioners and that therefore a charge u/s 395 of the Indian Penal Code cannot stand.

Some cattle belonging to the second and third petitioners were attached before judgment by the complainant P.W. 2 as the plaintiff in S.C.S.

No. 494 in the District Munsiff''s Court, Ambasamudram. After attachment the cattle were left in the custody of P.Ws. 1 and 2 as sureties. The

case against the petitioners is that while the. cattle were in the custody of the sureties, they along with others went in a body and committed dacoity

armed with deadly weapons and forcibly removed the cattle and thus committed an offence u/s 395 of the Indian Penal Code. The argument is that

since the cattle had been left in the sureties'' custody under orders of a Court of Justice their fraudulent removal constituted an offence u/s 206 of

the Indian Penal Code and that the requirements of Section 195(1)(b) cannot be circumvented by prosecuting the offenders under a graver charge

u/s 395 of the Indian Penal Code."" Such a contention would have had some force if the elements constituting both the offences were more or less

identical, but in the present case Section 395 of the Indian penal Code is not only a much graver offence, but certain additional features exist which

do not form the ingredients of Section 206 of the Indian Penal Code, viz., that the petitioners were alleged to have been armed with deadly

weapons, that they were five in number and that they conjointly committed the offence with a dishonest intention. These elements distinguish the

offence u/s 395 from one u/s 206 of the Indian Penal Code and it cannot be said that for such an offence the sanction of the Civil Courts is

necessary for prosecuting the petitioners.

Coming to the second objection it must be noticed that the preliminary objection as to the want of sanction was raised at an initial stage. It will

be open to the petitioners if the prosecution fails to establish dishonest intention on the part of the accused, to contend at the appropriate stage that

the essential requirement of Section 395 of the Indian Penal Code has not been fulfilled.

The petition is dismissed.