Facts of the case
- Mehra and Phillips were cadets on training in the Indian Air Force Academy, Jodhpur. The prosecution was with reference to an incident which is rather extraordinary being for alleged theft of an aircraft.
- Phillips was discharged from the Academy, on grounds of misconduct. Mehra was a cadet receiving training as a Navigator. 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.
- The authorised time to take off for the flight was between 6 a.m. to 6-30 a.m.
- 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.
- Sometime in the forenoon the same day they landed at a place in Pakistan about 100 miles away from the Indo-Pakistan border. It was 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 question before the court was that 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.
Taking out the aircraft
In the Courts below a contention was raised, which has also been pressed before the court, 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.
But the court said, it was quite clear, 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 when the unauthorised nature of the flight was discovered. It is impossible to imply consent in such a situation.
The main contention of the counsel, was that there was no proof in this case of any dishonest intention, much less of such an intention at the time when the flight was started. 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.
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:
“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 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, and Queen-Empress v. Nagappa).
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 gain or loss by the use of the aircraft.
The court, therefore, satisfied that there had been both wrongful, gain to the appellant and wrongful loss to the Government.
The only further questions that remain for consideration, therefore, were 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 outset, there is no difficulty in coming to the conclusion, that the dishonest intention, if any, was at the very outset.
The question, however, is whether the wrongful gain and the wrongful loss were intentional. 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.
The court, therefore, satisfied that the facts proved constitute theft.
K.N.Mehra v. State of Rajhasthan, 1957 AIR 369
  I.L.R. 22 Cal. 1017. PI
  I.L.R. 15 Bom. 344