1. The present criminal proceedings have originated from a civil litigation between the applicant and one of his brothers on the one hand and his elder brother on the other in the Court of the First Class Subordinate Judge, Ahmednagar. The applicant and his brother obtained a decree in their favour on March 27, 1934, against their elder brother, who is the complainant, in the present proceedings. Following the decree there was an application in execution on April 12, 1934, and on April 24, 1934, the Court issued a warrant for the attachment of the moveables in the possession of the opponent-complainant. The bailiff attached a considerable amount of move-able property consisting of grain and live-stock from the possession of the complainant and this property was handed over to the applicant on April 29, 1934, on the applicant's passing what is called a jimmapatra, by which he admitted that the said property had been given in his possession by the bailiff, and undertook that if the goods were misappropriated he would abide by the orders of the Court and that he would produce the goods whenever called upon by the Court to do so. Thereafter there were two sales, on December 14, 1934, and on February 2, 1935, fetching Rs. 90 and Rs. 551 respectively. The total of these sums being less than the estimated value of the property that had been given into the applicant's possession it was discovered that the quantity of grain sold was less than the quantity delivered to the applicant and that the applicant had failed to produce thirty-five goats that had been handed over to him on April 29. Thereupon the opponent prayed for sanction to prosecute the applicant and three others under Sections 403, 406 and 109 of the Indian Penal Code, but the learned Subordinate Judge held that the offence in question was not covered by Section 195 of the Criminal Procedure Code and accordingly refused to pass an order under that section. Thereafter on August 13, 1935, the opponent filed a criminal complaint against the applicant and three others under Sections 403, 406 and 109, Indian Penal Code. In the Magistrate's Court the accused again raised an objection on the ground that the civil Court had not made a complaint in writing as required in Section 195 of the Criminal Procedure Code, but the Magistrate took the same view as the learned Subordinate Judge and held that no order under the said section was necessary. The applicant was convicted under Sections 406 and 109, Indian Penal Code.
2. The only legal point that has been urged by Mr. Rele for the applicant is that the facts alleged against the accused constitute an offence punishable under Section 206, Indian Penal Code, and that therefore it was necessary for the civil Court to make a complaint in writing in respect of such offence under Section 195, Criminal Procedure Code. In this connection the learned Advocate for the applicant has relied on Ravanappa Reddi, in re (1931) I.L.R. 55 Mad. 343, which was a case in which a complaint was lodged by a private person alleging the commission of an offence under Section 193 and other offences in respect of which a complaint under Section 476, Criminal Procedure Code, was not necessary, and the Court took cognizance of the offences alleged but actually convicted the accused under Sections 467, 109, Indian Penal Code. It was held that the Court could not evade the provisions of Section 195, Criminal Procedure Code, by dealing under Sections 467 and 109, Indian Penal Code, with what was in effect an offence under Section 193, Indian Penal Code, This decision followed an earlier decision in Perianna Muthirian v. Vengu Aiyar (1928) 56 M. L. J. 208. Our attention has also been drawn to Prajulla Kumar Ghose v. Harendra Nath Chatterjee (1916) I.L.R. 44 Cal. 970 in which on a complaint having been found to be false and the accused having applied for sanction under Section 195, Criminal Procedure Code, to prosecute the complainant under Section 211, the Court refused sanction under Section 195; there was, however, a complaint against the complainant under Section 500, Indian Penal Code, based on the same facts on which the complaint under Section 211 was based, and it was held that as the offence, though described as an offence under Section 500, Indian Penal Code, still remained an offence punishable under Section 211, process should not have issued under the former section when the Court had refused sanction under the latter section.
3. It becomes necessary, in order to see the applicability of these decisions, to examine whether, as alleged by the applicant, the facts in this case did actually constitute an offence punishable under Section 206, Indian Penal Code. That section runs as follows :-
Whoever fraudulently removes, conceals, transfers or delivers to any person any property or any interest therein, intending thereby to prevent that property or interest therein from being taken as a forfeiture or in satisfaction of a fine, under a sentence which has been pronounced, or which he knows to be likely to be pronounced, by a Court of Justice or other competent authority, or from being taken in execution of a decree or order which has been made, or which he knows to be S likely to be made by a Court of Justice in a civil suit, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
4. It is contended by Mr. Rele that this was a case of removal or concealment of property with the intention of preventing that property from being taken in execution of a decree. It must, however, be remembered that in this case the property in question had already been attached under a warrant and handed over to the applicant. That being so, it is difficult to see that it could again be taken in execution of a decree or prevented from being so taken. It seems to us that the word " taken " in this section has been used in the sense of " seized " or " taken possession of." This is indicated by the marginal note to the section " fraudulent removal or concealment of property to prevent its seizure as forfeited or in execution." There is no question that the applicant was holding the property not in his own right but on having been given possession of it by an order of the civil Court. It appears to us, therefore, that it is not possible to say that the applicant could do anything to prevent that property or any part thereof from being taken in execution of a decree or order in the sense in which these words are used in the section. That being so, the decisions referred to above obviously cannot apply to the offence for which the accused has been tried.
5. There seem to be one or two more other matters also in respect of which this case can be distinguished from the cases relied on by the learned advocate for the applicant. In the first place, it does not appear that the applicability of Section 206, Indian Penal Code, has at any time been sought to be made out or has been made out earlier in these proceedings, nor has sanction with regard to this section been refused by the civil Court. Secondly, the offence under which the accused has been convicted, viz., an offence punishable under Section 406, is substantially a different offence from the one punishable under Section 206. The criminal intention necessary for an offence punishable under Section 206 is that of fraudulent prevention of property or any interest therein from being forfeited or taken in execution of a decree or order. Such an intention is certainly materially different from the intention required in an offence punishable under Section 406. We, therefore, hold that the decisions relied on by Mr. Rele do not apply to the facts of this case and that the trial of the accused has not been vitiated by the non-observance of the requirements of Section 195. The rule is accordingly discharged.
6. I agree. The cases cited by Mr. Rele would apply only where there is an offence which is primarily and essentially one for which sanction is required under Section 195. In two of the cases sanction had actually been refused. Under such circumstances to prosecute on the same facts for an offence under another section of the Indian Penal Code would clearly be an evasion of the provisions of Section 195. That is not the case here. Even if the facts could be brought within the four corners of Section 206 of the Indian Penal Code, which is extremely doubtful as my learned brother has pointed out, the offences of breach of trust and of fraudulently removing or disposing of property to prevent its seizure in execution are essentially different offences. I may mention, although the case was not cited in the argument, that in Queen-Empress v. Anant Puranik (1900) I.L.R. 25 Bom. 90 Mr. Justice Ranade expressed a view which is apparently contrary to the view taken by the Madras High Court. He said (p. 95) :-
An offence under section 205 (i.e., of the Indian Penal Code) requires sanction before it can be inquired into by any Court. Supposing sanction is not granted under section 205 by the Court before which false personation for purposes of a suit was committed, it surely does not take away the authority of the Courts to proceed under sections 170 or 171 if the evidence warranted such a conviction. This, same remark would apply to sections 206 to 210, which relate to fraudulent claims made or prosecuted in Civil Courts. If, for want of sanction, these offences could not be inquired into, it does not follow that the fraud should remain if it could be proved under other sections of the Code,...