Gain or loss need not be a total acquisition or a total deprivation

Ravikiran Shukre | Manikchand Pahade Law College, Aurangabad | 11th January 2020 

K. N. Mehra V. State of Rajasthan (1957 AIR 369)

Facts of the Case: 

1. K. N. Mehra and M. Z. Phillips were cadets on training to Indian Air Force Academy, Jodhpur, Rajasthan. Mehra was a cadet receiving training as a Navigator. A Navigator is a person who guides a pilot with help of maps and instruments. On 14^th May 1952 Phillips was supposed to leave jodhpur by train in view of his discharge because of the misconduct. Mehra was due for the flight in a Dakota as a part of his training with flying cadet, Om Prakash. The authorized time to take off for flight was between 6 am to 6:30 am. The cadets in training are allowed to fly in a flying area around 20 miles’ radius from aerodrome.  
2. On that morning, Mehra and Phillips took off, not a Dakota; but a Harvard H.T. 822. This happened before stipulated time, near 5 am without observing any formalities and without any authorization, which are prerequisites for an aircraft-fight. 
3. Then on same day, they landed in Pakistan on a place which is 100 miles away from Indo-Pakistan Border. Mehra and Phillips contacted J. C. Kapoor who was military advisor to the Indian High Commissioner in Pakistan at Karachi.  Mehra and Phillips contacted him that they had lost their way and force-landed in field, and 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.

Judgment:

Supreme Court in this appeal reconsidered the sec. 378 of Indian Penal Code, 1860 for the point of consideration whether the facts held to be proved constitute theft under sec. 378 of Indian Penal Code. 

Theft is defined under Sec.378 of the Indian Penal Code as: 

“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.”

1. Commission of theft, therefore, consist 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.
2. Therefore, (1) absence – of person’s consent while moving (2) presence of dishonest intention in so taking at the time, are essentials of offence of theft. In present case taking aircraft for the purpose of training; is implied consent but taking aircraft different from which was meant for training purpose without authority of flight commander and before prescribed time, in company of person Phillips who having been discharged, could not be allowed to fly in the aircraft. 
3. The flight was persisted in, in spite of signals to, return back when the unauthorized 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: “Wrongful gain is a 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.
4. In the present case there can be no reasonable doubt that the taking out of the Harvard aircraft by the appellant for the unauthorized 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 unauthorized and against all the regulations of aircraft-flying was clearly a gain or loss by unlawful means. 

Though the ultimate purpose of the flight was to go to Pakistan, the use of the aircraft for that purpose and the unauthorized 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.Appellant K. N. Mehra is an under-trial Prisoner and served sentence of imprisonment of 11 Months and 27 days Supreme Court has reduced the sentence of imprisonment against appellant to the period already undergone.