# K.N. Mthra v. Tht Statt of Rajasthan

- **Citation:** [1957] 1 S.C.R. 623
- **Court:** Supreme Court of India
- **Decided:** 1957
- **Case number:** Criminal Revision No. 88 of 1953
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-n-mthra-v-tht-statt-of-rajasthan-1361
- **Pages:** 12

## Headnote

S.C.R.
SUPREME COURT REPORTS
K. N. MEHRA
fl.
THE STATE OF RAJASTHAN
fJ AGAN N ADHADAS,
JAl'ER
IMAM and
MENON JJ.l
{;ovINDA
623
Aircraft, Theft
of-Used
for
training-Implied
consentDishonest intention-Temporary retention-Theft
and
Larceny,
Di,·tinctivn-lndian Penal Code (Act XLTI of 1860), ss. 23, 24, 378.
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,
1m0\·es that property in
order to such taking, is said to commit theft".
P and the appel!ant were cadets
on training in the
Indian
Air Force Academy, Jodhpur. but P had been discharged on the
gr·ound 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 flving, he took off
another type of aircraft, Harvard H. T. 822. without authorisation.
and on the same day thev force-landed at a place in
Pakistan.
Some days later they contacted the authorities in the Indian High
Corntnission and on
their
\vay to
India they \Vere arrested
at
Jodhpur and prosecuted
for
the theft of the aircraft.
It was
contended for the appdlant 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 CoJe, 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 appeilant obtained a temporary use of the
aircraft for his ()\Vil purposes and deprived the
c;m·ernment 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, ;1uy 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) l.L.R.
15 Rom. 344 and
Queen-Empress v. Sri
Ch1mi
Clmngu ( 189~) l.L.R. 22 Cal.
1017, ·
referred to.
1957
Fehrua;y I I.
1957
K.N. Mthra
v.
Tht Statt of
Rajasthan
624
SUPREME COURT REPORTS
[1957]
CRnnNAT.
APPELLATJ:
!L'Rrsn1cnoN :
Criminal
Appeal No. 51 nf J955.
Appeal by
special leave
from the judgment and
orJcr c!ared 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
jurlge at Jodhpur
in
Criminal Appeal No. 31 of 1953.
Jai Gopiil Sethi and W. S. Nantla, for the appellani.
R. Ganpat!ty Iyer, Porns A. Mehta and R. H. Dhebar,
for the respondent.
~7. February 11. The
)uJgment of the Court was
delivered by
jAGANNADHADAS ).-The
appellant,
K. N. Mehra,
anJ 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 anrl 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.
1 ~.c appeal before
us is by special leave obtained on behalf of the appellant
Meh ra alone.
Both Mehra and Phillips were cadets on training in
the Indian Air Force Academy, fodhpur.
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. l, has never so far occurred

## Text

S.C.R.
SUPREME COURT REPORTS
K. N. MEHRA
fl.
THE STATE OF RAJASTHAN
fJ AGAN N ADHADAS,
JAl'ER
IMAM and
MENON JJ.l
{;ovINDA
623
Aircraft, Theft
of-Used
for
training-Implied
consentDishonest intention-Temporary retention-Theft
and
Larceny,
Di,·tinctivn-lndian Penal Code (Act XLTI of 1860), ss. 23, 24, 378.
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,
1m0\·es that property in
order to such taking, is said to commit theft".
P and the appel!ant were cadets
on training in the
Indian
Air Force Academy, Jodhpur. but P had been discharged on the
gr·ound 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 flving, he took off
another type of aircraft, Harvard H. T. 822. without authorisation.
and on the same day thev force-landed at a place in
Pakistan.
Some days later they contacted the authorities in the Indian High
Corntnission and on
their
\vay to
India they \Vere arrested
at
Jodhpur and prosecuted
for
the theft of the aircraft.
It was
contended for the appdlant 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 CoJe, 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 appeilant obtained a temporary use of the
aircraft for his ()\Vil purposes and deprived the
c;m·ernment 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, ;1uy 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) l.L.R.
15 Rom. 344 and
Queen-Empress v. Sri
Ch1mi
Clmngu ( 189~) l.L.R. 22 Cal.
1017, ·
referred to.
1957
Fehrua;y I I.
1957
K.N. Mthra
v.
Tht Statt of
Rajasthan
624
SUPREME COURT REPORTS
[1957]
CRnnNAT.
APPELLATJ:
!L'Rrsn1cnoN :
Criminal
Appeal No. 51 nf J955.
Appeal by
special leave
from the judgment and
orJcr c!ared 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
jurlge at Jodhpur
in
Criminal Appeal No. 31 of 1953.
Jai Gopiil Sethi and W. S. Nantla, for the appellani.
R. Ganpat!ty Iyer, Porns A. Mehta and R. H. Dhebar,
for the respondent.
~7. February 11. The
)uJgment of the Court was
delivered by
jAGANNADHADAS ).-The
appellant,
K. N. Mehra,
anJ 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 anrl 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.
1 ~.c appeal before
us is by special leave obtained on behalf of the appellant
Meh ra alone.
Both Mehra and Phillips were cadets on training in
the Indian Air Force Academy, fodhpur.
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. l, has never so far occurred.
The alleged
theft was on May 14, 1952.
Phillips
was discharged
from the Academy just the
pre1'ious Jay, 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 Philli!'' also had been recei. ing training as a
Navigator.
lt is in evidence, however, that
he knew
!lying.
On May 14 .• 1952,
Phillips
was
due
to leave
Jodhpur by train in v.iew of his discharge.
Mehra was
due for lligh1 in " Dakota as part of his training alon!!
•
S.C.R.
' SUPREME COURT REPORTS
625
with one Om Prakash; a flying cadet.· It is in evidence
that he ha<l information about it.
The authorised time
to take off for, the flight was between 6 a.m. to 6-30 a.m.
The cadets tinder .training have generally either local
flights which mean flying area of about 20 miles
from
the aerodrnme or they may have cross-country exercises
and have Bigbt in the country through the
route
for
which they ::n<" sp.esifically authorised.. On .that morning
admittedly Mehra and
Phillips took off, not a Dakota,
but a Harvard H.T. 822.
This was
done before the
prescrib('.d time, i.e., at about 5 a.m. without authorisation and without
observing any
of the
formalities,
which are l""e~·equisites for an aircraft-Bight.
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
IndcrPakistan
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 Ddhi on 1'.fay 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 ccraccused Phillips stole away
the aircraft Harvard
H.T. 822 and flew with it to Pakistan with a dishonest
intention. The defence,
a~ appears from the
ans~'lrers
thereto, was as follows.
Mehra ·went to the aerodromt
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 visibilitv bec:ime poor and hence they turned
the aircraft back towards Jodhpur-side by guess. They
continued what they thought to i
the return journey
3-7~ S. C. Ind;a/59
1957
K.N •• Hehra
, ..
The Stal• of
Rajasthan
Jagannadhadcu ].
1957
K.N. Mehra
v.
The State of
Rajasthan
Jagannadhadas J.
•
626
SUPREME COURT REPORTS
[1957]
for some time ; but finding the petrol nearing exhaustion they force-landed ·in a field which, ou 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 best 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 (erritory.
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
S.C.R.
SUPREME COURT REPORTS
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 ju~tification. . 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
1957
K.N. Mehra
v.
The State ef
Rajasthan
Jagannadhadas J.
1957
N. Meltra
v.
T k Stai. of
Rajasthan
gmotatlhadas J,
628
SUPREME COURT REPORTS
[1957}
'
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
fiight 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 (he
aircraft to bring the same back at once to the aerndrome.
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
if) 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
S.C.R.
SUPREME COURT REPORTS
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 aircraft got force-landed after
going
beyond
the
InrloPakistan 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 Kapoo:- 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
1957
/(. N. Mehra
v.
The State of
Rajas than
Jagannadhadas ].
1957
K . .N. ¥ehra
v~
The State of
Rajasthan
Jagannadhadas J.
630
SUPREME COURT REPORTS
[1957]
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 s. 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
/I
I•
S.C.R.
SUPREME COURT REPORTS
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
\s right! y 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 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
1957
K. N. Mehra
v;
The StaU of
Rajasthan
Jaga"nadhadas J.
1957
K.N. Mehrt!
v.
The State of
Rajasthnn
JagrmnadhaJas J.
632
SUPREME COURT REPORTS
[1957]
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 Chum C!umr;;o (1 ), and Queen-Empress v.
Nagqppa (' ), In the pre;ent case
thee 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 J ndian
Air Force
Squadron that day.
Such use being unauthorised and
against all the regulations of aircraft-flying was clearly
a gain or loss by u_nlawful 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 helow have treated
absence of consent as making out dishonesty
and h:ive
not clearly appreciated that the two
are
distinct and
essential constituents of the
offence of theft.
The true
position, however, is that all
the
circum~tances of the
unamhorised 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
fihe
aircraft.
\Ve are, therefore,
sati,fied that there has been both wrongful gain to the
appel\ant and wrongtul loss to the
Government.
The only f1trther questions that remain for consideration,
therefore,
ar~
vvhethcr
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 nf such aircraft for flight was committed at
the very outset, there is no difficulty in coming to the
(<) [1895] I.L.R. 22 Cal. 1017.
(2) [1890] l.L.R. 15 Born.
...
S.C.R.
SUPREME COURT REPORTS
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 <lishonest
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 1hd. 136(2) F.B.
1957
K.N. Mehta
v.
The State of
Rajasthan
J agannadhadas J.
1957
K.N.Mehra
v.
The State of
Rajasthan
Jagannadhadas J.
1957
February 12,
634
SUPREME COURT REPORTS
[1957]
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
appeanng
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.
HANSRAJ MOOLJI
ti.
THE STATE OF BOMBAY
[BHAGWATJ, JAGANNADHADAS, )AFER IMAM,
· GovINDA MENON and j. L. KAPUR, JJ.J
Ordinance,
duration
of-Promulgaiion
under the Emergency
ProvisionJ-Declaration
of ter1nination
of emergency-Scope and
effect-Operation of Ordinance after end of emergency-Government
of India Act, 1935 (25 & 26 Geo. 5 Ch. 42). Sch. 9 s. 72-India
and Burma (Emergency Provisions) Act, 1940 (3 & 4 Geo. 6 Ch. 33),
ss. 1 (3), J-High Denomination
Bank Not('s
(Demonetisation)
Ordinance, 1946 (Ordinance No. III of 1946), ss. 4. 7.
Under s. 72 of the 9th Sch. of the Government of India Act,
1935 : "The Governor-General may, in cases of en1ergency, make
and promulgate ordinances ... and any ordinance so 1nadc shall, for
the space of not more than six months from its pron1ulgation,
have the like force of la\.V as an Act passed by the Indian Legislature . .. "; s. I ( ~) of the
India
and
Burma
( E1nergency
Provisions) Act, 1940, provided that s. 72 of the Government of India
Act, 1935, shall as respects
Ordinances made during the period
beginning with Tune 27, 1940, the <late of the passing of that Act,
and ending \.Vith such date as
His Majesty may by
Order in
Council declare to be the end of the emergency, have effect as if
...