IN RE: LAKSHMANAN NADAR AND ORS. Vs. STATE

JUDGEMENT

(1.) 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 under Section 206 of the Indian Penal Code there should be a written complaint by the District Munsiff's Court, Ambasamudram under Section 195(1)(b), Criminal Procedure Code, and that in the absence of such a complaint, an enquiry even into the charge of dacoity 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 under Section 395 of the Indian Penal Code cannot stand.

(2.) 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 under Section 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 under Section 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 under Section 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 under Section 395 from one under Section 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.

(3.) THE petition is dismissed.