1. This matter comes up before us upon an order made at the time of admission by Ganapatia Pillai, J., who thought that the facts might involve a determination of the conflict between two decisions of this Court, both of single Judges, namely, Sidhayyan v. Chinnamathayyan (1936) M.W.N. 36 and Ponnusami Padayachi v. Emperor (1941) M.W.N. 79. As we shall presently show, once the facts of this matter are fully set forth, it becomes abundantly clear that the resolution of this apparent conflict is really not necessary for purposes of this case. Apart from this, we have now had the advantage of arguments in full by learned Counsel for the revision petitioners and the learned Public Prosecutor, and we find that the apparent conflict is easily reconcilable. We shall firs set forth the facts of the matter.
2. The facts, as represented by learned Counsel for the revision petitioners are as follows. P.W.2 in this case filed a suit against the first accused (judgment-debtor) for money and obtained a decree on the foot of the claim. The decree-holder, (P.W. 2) or his son (P.W. 1) as authorised on his behalf, filed an execution petition for attachment of the movables of the judgment-debtor. An officer of the Court (P.W. 6) distrained two sheep belonging to the first accused, and entrusted those sheep to P.W. 1 on execution of a bond by the latter. Admittedly, this took place on 15th September, 1960, and it appears to have been in accordance with the procedure prescribed in Order 21, Rule 45 (1) (a), Civil Procedure Code.
3. That evening, it is alleged, the first accused and four others (the five revision petitioners) came there, and after a show of force or the use of actual force, the record not being very clear on the point, obtained the release of the sheep and took them away. P.W. 1 then filed a criminal complaint against the five accused for theft of the animals under Section 379, Indian Penal Code.
4. The preliminary objection was taken by learned Counsel for the accused (revision petitioners) that the offence, or the facts set forth in the complaint, also fell under Section 206, Indian Penal Code. That being the case, the sanction of the relevant Civil Court was essential, and it is the Civil Court which had to file the complaint under Section 195 (1) (b), Criminal Procedure Code. These are the facts as stated, in the context in which the question for decision arises before us.
5. Now, Section 206, Indian Penal Code essentially relates to the fraudulent removal or concealment of property, to prevent it from being seized or proceeded with in any manner, in execution of a decree. Upon very similar facts, the matter came up for consideration before King, J. in Sidhayyan v. Chinnamathayyan (1936) M.W.N. 36. But one important distinguishing feature may be noted, at this stage itself. Upon the facts in the matter before King, J., it is clear that the judgment-debtor alone was the accused, and that he was alleged to have removed the cattle which had been attached and in respect of which a surety bond had been executed. The argument was that no case under Section 206, Indian Penal Code was involved, because the cattle were not removed before the attachment or the taking of steps in execution, but only thereafter. Dealing with this argument the learned Judge observed:
To me, however, it appears that the phrase ' taken in execution ' should be more widely interpreted, as meaning something equivalent to appropriated towards execution or utilised effectively in aid of execution...
The learned Judge thought that the complaint did disclose an offence under Section 206, Indian Penal Code and hence that sanction was required. We shall later note one important aspect which was not considered by the learned Judge (King, J.) in the context of this particular decision, but which he had occasion to consider in a later decision.
6. The decision which is in apparent conflict with this decision is that of Lakshmana Rao, J. in Ponnusami Padayachi v. Emperor (1941) M.W.N. 79. That was a very brief judgment, in which the learned Judge merely observed that the facts of that case involved an offence under Section 379, Indian Penal Code, and that' a complaint of Court was not necessary for a prosecution for the offence '. The learned Judge repelled the argument that the prosecution was incompetent without a complaint by a Civil Court under Section 195, Criminal Procedure Code.
7. The question, partly at least, depends upon the applicability of the quite different ingredients of Section 206, Indian Penal Code and Section 370, Indian Penal Code to the present facts, or to facts of this character. In Ramaswamy Ambalam v. Magasubramania Iyer (1936) M.W.N. 210, Burn, J. had occasion to consider the interpretation to be placed on the word ' fraudulently ' as occurring in Section 206, Indian Penal Code. The learned Judge referred to the definition in Section 25, Indian Penal Code and held that, on the facts before him, there was no question of concealment, secrecy, clandestine action, or deception. In that view, an offence under Section 206, Indian Penal Code was not involved, since ' fraudulently' as occuring in that section was not equivalent to ' dishonestly' as occurring in Section 379, Indian Penal Code. It is important to note that this decision was followed by King, J. himself in Kothandarama Reddi v. Balarama Reddi (1937) M.W.N. Crl. 194, where the learned Judge definitely revised his earlier view. The learned Judge extracted and set forth the observation of Sir James Stephen to this effect:
Whenever the words ' fraud ' or ' intent to defraud ' or 'fraudulently' occur in the definition of a crime, two elements at least are essential to the commission of the crime; namely first deceit or intention to deceive, or in some cases, mere secrecy.' (' and secondly either actual injury or an intention to expose some person either to actual injury or to a risk of possible injury, by means of that deceit or secrecy ').
The learned Judge then pointed out that, upon the facts before him, what was established was that the concerned accused went openly to the field in question and harvested the attached crops. Their action was dishonest, but was not fraudulent, and Section 379, Indian Penal Code alone applied, and not Section 206, Indian Penal Code. In that view, the learned Judge (King, J.) approved and followed the dicta of Burn, J. in Ramaswamy Ambalam v. Nagasubramania Iyer (1936) M.W.N. 210, cited above, and dismissed the Revision Petition.
8. This statement of law as appearing in the relevant decisions, is really sufficient for our present purpose. In the present case, it is not merely the judgment-debtor (first accused) but four others who all combined and removed the attached sheep. It is not even clear that those other persons committed this alleged offence with the knowledge that the sheep had been attached in proceedings in execution of a decree, and with any intention to frustrate those proceedings. In any event, the removal was open and without any element of secrecy or deception. It might be ' dishonest removal' and might even amount to ' robbery' and not ' theft'. But it was not ' fraudulent removal'; and upon the criteria that we have already referred to, Section 206, Indian Penal Code cannot be held involved. Hence the complaint was perfectly competent without the sanction or institution of complaint by the concerned Civil Court under Section 195 (1) (b), Criminal Procedure Code.
9. We might add, merely for the purpose of clarification that, in our view, there is really no conflict between the decision of King J. in Sidhayyan v. Chinnamathayyan (1936) M.W.N. 36, and the decision of Lakshmana Rao, J. in Ponnusami Padayachi v. Emperor (1941) M.W.N. 79. As we have earlier noticed, King J. himself revised his view with regard to the application of Section 195(1)(b), Criminal Procedure Code to facts of this character, where the removal is not' fraudulent' but' dishonest'. The judgment of Lakshmana Rao, J. was confined to the facts of that particular case. The learned Judge did not purport to lay down the law upon any aspect of this question. He explicitly stated that he was satisfied that the facts before him involved only an offence under Section 379, Indian Penal Code.
10. We need not add that where, in a particular case, the facts involve both an offence for which sanction is required and an offence for which such sanction is not required, the complainant cannot evade the requirements of the law, by prosecuting the concerned accused for the offence for which sanction was not required, whether that be the major among the two offences, or the minor one. This principle has been uniformly expounded and followed in the following decisions of the Supreme Court and of this Court : Dholliah v. S.I. Police, Wellington : (1931)61MLJ770 , (Judgment of Beasley C.J. and Sundaram Chetty, J.); Appadurai v. Emperor A.I.R. 1936 Mad. 89, (Judgment of Madhavan Nair and Burn, JJ.); Ravanappa Reddi In re (1931) 62 M.L.J. 735 (Judgment of Jackson and Curgenven, JJ.); Muni Reddi v. Emperor (1948) M.W.N. 68, (Judgment of Govinda Menon, J.) and Basivulttug v. State of West Bengal (1953) 1 M.L.J.775 : (1953) S.C.J. 405 .
11. The reference is answered accordingly to the effect that, on the facts of this particular case, no question of prior sanction under Section 195 (1) (b), Criminal Procedure Code, appears to arise, and that the decisions in Sidhayyan v. Chinnamathayyan (1936) M.W.N. (Cal.) 36 and Ponnusami Padayachi v. Emperor (1941) M.W.N. (Cal.) 79, are perfectly reconcilable in the manner we have set forth above.
12. Since this is the only point involved in the revision proceeding, it is dismissed. We desire to add that the facts have been referred to by us., as stated before us, and solely for the purpose of this reference : our observations are not intended to affect the merits of the pending criminal case, in any manner whatever.