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PETITIONER: K. N. MEHRA

       Vs.

RESPONDENT: THE STATE OF RAJASTHAN

DATE OF JUDGMENT: 11/02/1957

BENCH: JAGANNADHADAS, B. BENCH: 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

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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. 624

JUDGMENT: 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

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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

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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

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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.

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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

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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 QueenEmpress 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

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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 appel. lant 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.