K. N. Mehra Vs. The State of Rajasthan
[1957] INSC 12 (11 February 1957)
JAGANNADHADAS, B.
IMAM, SYED JAFFER MENON, P. GOVINDA
CITATION: 1957 AIR 369 1957 SCR 623
ACT:
Aircraft, Theft of-Used for training-Implied
consent- Dishonest intention-Temporary retention-Theft and Larceny, Distinction
-Indian Penal Code (Act XLV of 1860), SS. 23, 24, 378.
HEADNOTE:
By s. 378 of the Indian Penal Code: "
Whoever, intending to take dishonestly any movable property out of the
possession of any person without that person's consent, moves that property in
order to such taking, is said to commit theft ".
P and the appellant were cadets on training
in the Indian Air Force Academy, jodhpur, but P had been discharged on the
ground of misconduct, and on the day of the incident the appellant was due for
a local flight in a Dakota as part of his training as a Navigator. With the
help of P, who knew flying, he took off another type of aircraft, Harvard H.T.
822, without authorisation, and on the same
day they force- landed at a place in Pakistan. Some days later they contacted
the authorities in the Indian High Commission and on their way to India they were arrested at jodhpur and prosecuted for the theft of the aircraft. It was
contended for the appellant that as a cadet under training he was entitled to
take an aircraft on flight and therefore there was an implied consent to the
"moving" of the aircraft within the meaning of s. 378 of the Indian
Penal Code, and consequently there could be no dishonest intention, much less
such an intention at the time when the flight was started, so as to constitute
theft. It was found that the purpose for which the flight was undertaken was to
go to Pakistan with a view to seeking employment there.
Held, that as the flight was unauthorised
there could be no consent, and as it was unlawful at the outset, in the
circumstances of the case, and the appellant obtained a temporary use of the
aircraft for his own purposes and deprived the Government of its use, there was
a dishonest intention, and consequently the flight constituted a theft of the
aircraft.
A temporary retention of property by a person
wrongfully gaining thereby or a temporary keeping out of property from the
person legally entitled thereto, may amount to theft under S. 378 of the-Indian
Penal Code, and in this respect the offence differs from "larceny" in
English Law which contemplates permanent gain or less.
Queen-Empress v. Nagappa, (1890) I.L.R. 15
Bom. 344 and Queen-Empress v. Sri Churn Chungo, (1895) I.L.R. 22 Cal. 1017,
referred to.
CRIMINAL APPELLATE JURISDICTION Criminal
Appeal No. 51 of 1955.
Appeal by special leave from the judgment and
order dated October 22, 1953, of the Rajasthan High Court at Jodhpur in
Criminal Revision No. 88 of 1953 arising out of the judgment and order dated
May 18, 1953, of the Court of Sessions Judge at Jodhpur in Criminal Appeal No.
31 of 1953.
Jai Gopal Sethi and B. S. Narula, for the
appellant.
R. Ganpathy Iyer, Porus A. Mehta and B. H.
Dhebar, for the respondent.
1957. February ll. The Judgment of the Court
was delivered by JAGANNADHADAS J.-The appellant, K. N. Mehra, and one M. Z.
Phillips were both convicted under s. 379 of
the Indian Penal Code and sentenced to simple imprisonment by the trial Magistrate
for eighteen months and a fine of Rs. 750 with simple imprisonment in default
of payment of fine for a further term of four months. The conviction and
sentence against them have been confirmed on appeal by the Sessions Judge and
on revision by the High Court. The appeal before us is by special leave
obtained on behalf of the appellant Mehra alone.
Both Mehra and Phillips were cadets on
training in the Indian Air Force Academy, Jodhpur. The prosecution is with
reference to an incident which is rather extraordinary being for alleged theft
of an aircraft, which, according to the evidence of the Commanding 'Officer,
P.W. 1, has never so far occurred. The alleged theft was on May 14, 1952.
Phillips was discharged from the Academy just
the previous day, i.e., May 13, 1952, on grounds of misconduct. Mehra was a
cadet receiving training as a Navigator. The duty of a Navigator is only to
guide a pilot with the help of instruments and maps. It is not clear from the
evidence whether Phillips also had been receiving training as a Navigator. It
is in evidence, however, that he knew flying.
On May 14, 1952, Phillips was due to leave
Jodhpur by train in view of his discharge. Mehra was due for flight in a Dakota
as part of his training along 625 with one Om Prakash, a flying cadet. It is in
evidence that he had information about it. The authorised time to take off for
the flight was between 6 a.m. to 6-30 a.m. The cadets under training have
generally either local flights which mean flying area of about 20 miles from the
aerodrome or they may have cross-country exercises and have flight in the
country through the route for which they are specifically authorised. On that
morning admittedly Mehra and Phillips took off, not a Dakota, but a Harvard
H.T. 822.
This was done before the prescribed time,
i.e., at about 5 a.m. without authorisation and without observing any of the
formalities, which are prerequisites for an aircraft-flight.
It is also admitted that some time in the
forenoon the same day they landed at a place in Pakistan about 100 miles away
from the Indo-Pakistan border. It is in the evidence of one J. C. Kapoor who
was the Military Adviser to the Indian High Commissioner in Pakistan at
Karachi, that Mehra and Phillips contacted him in person on the morning of May
16,1952, at about 7 a.m. and informed him that they had lost their way and
force-landed in a field, and that they left the plane there. They requested for
his help to go back to Delhi.
Thereupon Kapoor arranged for both of them
being sent back to Delhi in an Indian National Airways plane and also arranged
for the Harvard aircraft being sent away to Jodhpur. While they were thus on
their return to Delhi on May 17, 1952, the plane was stopped at Jodhpur and
they were both arrested.
The case for the prosecution, as appears from
the questioning of the trial Magistrate under s. 342 of the Code of Criminal
Procedure, was that Mehra along with his co- accused Phillips stole away the
aircraft Harvard H.T. 822 and flew with it to Pakistan with a dishonest intention.
The defence, as appears from the answers
thereto, was as follows. Mehra went to the aerodrome on the morning of May 14,
at the usual time and took off the aircraft along with Phillips and they flew
for some time. After a short while the weather became bad and visibility became
poor and hence they turned the aircraft back towards Jodhpur-side by guess.
They continued what they thought to be the
return journey 626 for sometime; but finding the petrol nearing exhaustion they
force-landed in a field which, on enquiry, they came to know was in Pakistan
territory. This defence has not been accepted and the Courts below have held
the prosecution case to have been proved.
Learned counsel for the appellant, Shri
Sethi, attempted, to minimise the gravity of the incident by characterising it
as a thoughtless prank on the part of a young student aged about 22 years who
was receiving training as a flying cadet and that there can be no question of
any offence under the Penal Code having been committed, whatever may have been
the breach of rules and regulations involved thereby. None of the three courts
below who have dealt with this case were prepared to accept any such
suggestion. Indeed in view of the fact that the appellant himself has not put
forward any such defence it is impossible to accede to it. The next contention
of the learned counsel for the appellant-and that appears also to be the
defence of the appellant-is that as a cadet under training he was entitled to
take an aircraft on flight, no doubt subject to certain rules and regulations
and that what at beat happened was nothing more than an unauthorised flight by
a trainee as part of his training which was due and in which he lost his way.
He had to get force-landed in an unknown place and this turned out to be
Pakistan territory. The prosecution case, however, is that the flight to
Pakistan was intentional and that such flight in the circumstances constituted
theft of the aircraft. The main question of, fact to be determined, therefore,
is whether this was intentional flight into Pakistan territory.
It has been strenuously pressed upon us that
the trial court was not prepared to accept the story that the flight was an
intentional one to Pakistan and hence there was no justification for the
appellate court and the High Court to find the contrary. It is also pointed out
that Kapoor, the Military Adviser to the Indian High Commissioner in Pakistan,
gave evidence' that when the appellant and Phillips -met him at Karachi on the
morning of May 16, 1952, they told him that they wanted to fly to Delhi with a,
view to contact the higher authorities 627 there. It was also pointed out that
neither the appellant nor Phillips took with them in the flight any of their
belongings. Now it is clear from the judgments of the courts below that both
the High Court on revision, as well as the Sessions Judge on appeal, came to a
clear finding on this matter against the appellant. It is true that the -trial
court said that the suggestion that the appellant and Phillips wanted to go to
Delhi was not beyond the realm of possibility. But it gave effect to this
possibility only for determining the sentence. The trial Court also seems to
have been of the view that the flight was intended for Pakistan as appears from
the following passage in its judgment.
" Although the facts on the record point
almost conclusively that they were heading towards Pakistan, it is impossible
to dismiss the other theory beyond the realm of possibility that they were
going to Delhi to contact the higher authorities there." In contemplating
this possibility the trial Court seems to have lost sight of the fact that the
Delhi theory was not the defence of the appellant in his answers to the
questioning under s. 342 of the Code of Criminal Procedure.
It was obviously an excuse given to Kapoor in
order to impress him that their flight was innocent and to persuade him to send
them back to Delhi instead of to Jodhpur. The significance of this plea,
however, is that the suggestion that the flight was by way of a prank or as
part of the flying lessons though unauthorised in the particular instance, is
clearly untenable.
In view however of the somewhat halting
finding of the trial Court on this matter, we have been taken through the
evidence. It would be enough to mention broadly the facts from which, in our
opinion, the conclusion arrived at by the Courts below that the flight was
intended for Pakistan is not without sufficient reason and justification. As
already stated, the aircraft in which the appellant was scheduled to fly on the
morning of May 14, was a Dakota but he took off in a Harvard plane. It is in
evidence that this was done between 5 a.m. and 5-30 a.m., i.e., before the
prescribed time. The plane had just then been 628 brought out from the hangar
in order to be utilised for some other flight in the regular course. Appellant
started the engine himself by misrepresenting to P. W. 12, the mechanic on duty
at the hangar, that he had the permission of the Section Officer in charge. He
was scheduled to have the flight along with another person, a flight-cadet by
name Om Prakash. But he did not fly, with Om Prakash, but managed to take with
him a discharged cadet, Phillips, who knew flying. Before any aircraft can be
taken off, the flight has to be authorised by the Flight Commander. A flight
authorisation book and form No. 700 have to be signed by the person who is to
take off the aircraft for the flight.
Admittedly these have not been done in this
case and no authorisation was given. The explanation of the appellant is that
this is not uncommon. These, however, are not merely empty formalities but are
required for the safety of the aircraft as well as of the persons flying in it.
It is impossible to accept the suggestion of the appellant that it is usual to
allow trainees to take off the aircraft without complying with these essential
preliminaries. No such suggestion has been made in cross-examination to any of
the officers, and witnesses, who have been examined for the prosecution. It is
in evidence that as soon as the taking off of the aircraft was discovered, it
inevitably attracted the attention of officers and other persons in the
aerodrome and that radio signals were immediately sent out to the occupants in
the aircraft to bring the same back at once to the aerodrome. But these signals
were. not heeded. The explanation of the appellant is that the full apparatus
of the radio-telephone was not with them in the aircraft and that he did not
receive the message. The appellant goes so far as to say that there were also
no maps or compass or watch in the aircraft. It is proved, however, on the
evidence of the responsible officers connected with the aerodrome and by
production of Ex. P-6, that this particular aircraft, before it was brought out
from the hangar, had been tested and was airworthy. It is difficult to believe
that the flight would have been undertaken without all the 629 equipment being
in order. Even according to the evidence of Kapoor, the Military Adviser to the
Indian High Commissioner in Pakistan, the appellant and Phillips had told him
that the plane was airworthy. The suggestion of the appellant, therefore, in
this behalf cannot obviously be accepted. It has been pointed out to us that
there is some support in the evidence for the suggestion of force-landing on
account of the weather being bad and the visibility being poor. This may be so,
but would not explain why the air. craft got force-landed after going beyond
the Indo-Pakistan border.
There is evidence to show that the appellant
Mehra was feeling some kind of dissatisfaction with his course and was
contemplating a change. Seeking employment in Pakistan was, according to the
evidence, one of the ideas in his mind, though in a very indefinite sort of
way. Having regard to all these circumstances and the fact that -must be
assumed against the appellant that an airworthy aircraft was taken off for
flight and that a person like Phillips who knew flying sufficiently well and
who was discharged the previous day, was deliberately taken into the aircraft,
we are satisfied that the finding of the Courts below, viz., that the flight to
Pakistan was intentional and not accidental, was justified. It is, therefore,
not possible to treat the facts. of this case as being a mere prank or as an
unauthorised cross-country flight in the course of which the border was
accidentally crossed and force-landing became inevitable.
It has been strenuously urged that if the
flight was intended to be to Pakistan the appellant and Phillips would not have
contacted Kapoor and requested him to send them back to Delhi. But this does
not necessarily negative their intention at the time of taking off. It may be
that after reaching Pakistan the impracticability of their venture dawned upon
them and they gave it up. It may be noticed that they were in fact in Pakistan
territory for three days and we have nothing but their own word as to how they
spent the time on the 14th and 15th. However this may be, if the circumstances
are such from which a Court of fact is in a position to infer the purpose 630
and intention and the story of having lost the way cannot be accepted having
regard to the aircraft being airworthy, with the necessary equipment, the
finding that it was a deliberate flight to Pakistan cannot be said to be
unreasonable. It may be true that they did not take with them any of their
belongings but this was probably part of the plan in order to take off by
surprise and does not exclude the idea of an exploratory flight to Pakistan. We
must, therefore, accept the findings of the Courts below.
In that view, the only point for
consideration is whether the facts held to be proved constitute theft under s.
378 of the Indian Penal Code.
Theft is defined in a. 378 of the Indian
Penal Code as follows:
" Whoever, intending to take dishonestly
any movable property out of the possession of any' person without that person's
consent, moves that property in order to such taking, is said to commit theft.
" Commission of theft, therefore, consists in (1) moving a movable
property of a person out of his possession without his consent, (2) the moving
being in order to the taking of the property with a dishonest intention. Thus,
(1) the absence - of the person's consent at the time of moving, and (2) the
presence of dishonest intention in so taking and at the time, are the essential
ingredients of the offence of theft. In the Courts below a contention was
raised, which has also been pressed here, that in the circumstances of this
case there was implied consent to the moving of the aircraft inasmuch as the
appellant was a cadet who, in the normal course, would be allowed to fly in an
aircraft for purposes of training. It is quite clear, however, that the taking
out of the aircraft in the present case had no relation to any such training.
It was in an aircraft different from that which was intended for the
appellant's training course for the day. It was taken out without the authority
of the Flight Commander and, before the appointed time, in the company of a
person like Phillips who, having been discharged, could not be allowed to fly
in the aircraft. The flight was persisted in, in spite of signals to, return
back 631 when the unauthorised nature of the flight was discovered.
It is impossible to imply consent in such a
situation.
The main contention of the learned counsel
for the appellant, however, is that there is no proof in this case of any
dishonest intention, much less of such an intention at the time when the flight
was started. It is rightly pointed out that since the definition of theft requires
that the moving of the property is to be in order to such taking, " such
" meaning " intending to take dishonestly ", the very moving out
must be with the dishonest intention. It is accordingly necessary to consider
what " dishonest " intention consists of under the Indian Penal Code.
Section 24 of the Code says that " whoever does anything with the
intention of causing wrongful gain to one person or wrongful loss to another
person is said to do that thing dishonestly". Section 23 of the Code says
as follows:
"I Wrongful gain' is gain by unlawful
means of property to which the person gaining is not legally entitled.
'Wrongful loss' is the loss by unlawful means
of property to which the person losing it is legally entitled.
A person is said to gain wrongfully when such
person retains wrongfully, as well as when such person acquires wrongfully.
A person is said to lose wrongfully when such
person is wrongfully kept out of any property, as well as when such person is
wrongfully deprived of property. " Taking these two definitions together,
a person can be said to have dishonest intention if in taking the property it
is his intention to cause gain, by unlawful means, of the property to which the
person so gaining is not legally entitled or to cause loss, by wrongful means,
of property to which the person so losing is legally entitled. It is further
clear from the definition that the gain or loss contemplated need not be a
total acquisition or a total deprivation but it is enough if it is a temporary
retention of property by the person wrongfully gaining or a temporary "
keeping out " of property from the person legally entitled. This is 632
clearly brought out in illustration (1) to s. 378 of the Indian Penal Code and
is uniformly recognised by various decisions of the High Courts which point out
that in this respect " theft " under the Indian Penal Code differs
from " larceny " in English law which contemplated permanent gain or
loss. (See Queen Empress V. Sri Churn Chungo (1), and Queen-Empress v. Nagappa
(2)). In the present case there can be no reasonable doubt that the taking out
of the Harvard aircraft by the appellant for the unauthorised flight has in
fact given the appellant the temporary use of the aircraft for his own purpose
and has temporarily deprived the owner of the aircraft, viz., the Government,
of its legitimate use for its purposes, i.e., the use of this Harvard aircraft
for the Indian Air Force Squadron that day.
Such use being unauthorised and against all
the regulations of aircraft-flying was clearly a gain or loss by unlawful
means. Further, the unlawful aspect is emphasised by the fact that it was for
flight to a place in Pakistan. Learned counsel for the appellant has urged that
the courts below have treated absence of consent as making out dishonesty and
have not clearly appreciated that the two are distinct and essential
constituents of the offence of theft. The true position, however, is that all
the circumstances of the unauthorised flight justify the conclusion both as to
the absence of consent and as to the unlawfulness of the means by which there
has been a temporary gainor loss by the use of the aircraft. We are, therefore,
satisfied that there has been both wrongful, gain to the appellant and wrongful
loss to the Government.
The only further questions that remain for
consideration, therefore, are whether the causing of such wrongful gain or
loss, was intentional and if so whether such intention was entertained at the
time when the aircraft was taken. If, as already found, the purpose for which
the flight was undertaken was to go to Pakistan, and if in order to achieve
that purpose, breach of various regulations relating to the initial taking out
of such aircraft for flight was committed at the very out set, there is no
difficulty in coming to the (1) [1895] I.L.R. 22 Cal. 1017.
PI (2) [1890] I.L.R. 15 Bom. 344.
633 conclusion, as the courts below have
done, that the dishonest intention, if any, was at the very outset. This is not
a case where a person -in the position of the appellant started on an
authorised flight and exploited it for a dishonest purpose in the course
thereof. In such a case, inference of initial dishonest intention may be
difficult. The question, however, is whether the wrongful gain and the wrongful
loss were intentional. It is urged that the well-known distinction which the
Penal Code -makes, in various places, between intention to cause a particular
result and the knowledge of likelihood of causing a particular result has not
been appreciated. It is also suggested that the decided cases have pointed out
that the maxim -that every person must be taken to intend the natural
consequence of his acts, is a legal fiction which is not recognised for penal
consequences in the Indian Penal Code.
(See Vullappa v. Bheema Row (1)). Now
whatever may be said about these distinctions in an appropriate case, there is
no scope for any doubt in this case, that though the ultimate purpose of the
flight was to go to Pakistan, the use of the aircraft for that purpose and the
unauthorised and hence unlawful gain of that use to the appellant and the
consequent loss to the Government of its legitimate use, can only be considered
intentional. This is not by virtue of any presumption but as a legitimate
inference from the facts and circumstances of the case. We are, therefore,
satisfied that the facts proved constitute theft. The conviction of the appellant
under s. 379 of the Indian Penal Code is, in our opinion, right and there is no
reason to interfere with the same.
Learned counsel for the appellant has very
strenuously urged that the circumstances of the case do not warrant the
imposition of a substantial sentence of (simple) imprisonment for eighteen
months. He also' urges that the appellant, who is now on bail, has undergone his
sentence for nearly an year and presses upon us that the interests of the
justice in the case, do not require that, after the lapse of over four years
from the date of the commission of the offence, a young man (1) A.I.R. 1918
Mad. 136 (2) F.B. 634 in the appellant's situation should be sent back to jail
to serve out the rest of the sentence. We have ascertained from the Advocate
appearing for the Government that the appellant has already. served a sentence
of 11 months and 27 days. Learned counsel for the appellant has also informed
us that the appellant was in judicial custody for about eleven months as an
under-trial prisoner. In view of all the circumstances of the case, we agree
that the interests of justice do not call for his being sent back to jail.
While, therefore, maintaining the conviction
of the appellant, K. N. Mehra, we reduce the sentence of imprisonment against
him to the period already undergone.
The sentence of fine and the sentence of
imprisonment in default thereof shall stand. With this modification, in
sentence, the appeal is dismissed.
Appeal dismissed, and sentence modified.
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