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SUPREME COURT OF INDIA
11th February 1957
JAGANNADHA DAS, IMAM AND GOVINDA MENON, JJ.
K.N. Mehra, Appellant
Versus
State of Rajasthan, Respondent.
Criminal Appeal No. 51 Of 1955.
Advocates appeared
Mr. Jai Gopal Sethi, Senior Advocate (Mr. R.S. Narula, Advocate, with him), for Appellant; Messrs R. Ganpathy Iyer, Porus A. Mehta and R.H. Dhebar Advocates, for Respondent.
Theft of aircraft-Unauthorized use of aircraft-Wrongful gain and loss--Intention.
"Theft" distinguished from "larceny".
The case for the prosecution as appeared from the questioning of the trial Magistrate under. section 342 of the Code of Criminal Procedure was that M along with his co-accused P stole away an aircraft, Harvard H.T. 822, and flew with it to Pakistan with a dishonest intention. The defence, as appeared from the answers thereto was as follows: M went to the aerodrome on the morning of 14th May 1952 at the usual time and took off the aircraft along-with P 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 for some time; but finding the petrol near exhaustion they force-landed in a field which, on enquiry, they came to know was the Pakistan territory. The defence was not accepted by the courts and the accused were convicted for theft under section 378, Indian Penal Code.
Held: (1) Commission of theft consists in (i) moving a movable property of a person out of his possession without his consent (ii) the moving being in order to the taking of the property with a dishonest intention. Thus, (i) the absence of persons consent at the time of moving, and (2) the presence of dishonest intention in so taking at the time, are the essential ingredients of the evidence of theft.
(2) Since the definition of theft in section 378 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.
(3) Taking the definitions of "dishonestly" in section 24 and "wrongful gain" and "wrongful loss" in section 23 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 clearly brought out in illustration (i) of section 378, Penal Code, and is uniformly recognized by various decisions of the High Courts which points out that in this respect theft under the Indian Penal Code differs from "larceny" in English law which contemplated permanent gain or loss.
(4) In the present case the taking out of the Harvard aircraft by the appellant on an unauthorised flight gave in fact the appellant a temporary use of the aircraft, for his own purpose and temporarily deprived the owner of the aircraft, viz. the Government, of its legitimate use for its purpose, 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. 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 had been a temporary gain or loss by the use of the aircraft. There was, therefore, both wrongful gain to the appellant and wrongful loss to the Government.
(5) Though in reality the purposes of the flight in this case 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, could only be considered intentional and this was not by virtue of any presumption but as• a legitimate inference from the facts and circumstances of the case.
Judgment
JAGANNADHADAS J. - The appellant, K.N. Mehra, and one M.Z. Phillips were both convicted under S. 379, 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.
2. 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 14th May 1952. Phillips was discharged from the Academy just the previous day, i. e., 13th May 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 a 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 14th May 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 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 night 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 specially 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 some 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 16th May 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 17th May 1952, the plane was stopped at Jodhpur and they wore both arrested.
3. 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 14th May 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 for some time; 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.
4. Learned counsel for the appellant, Shri Sethi, attempted to minimise the gravit
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