Dr.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

CRIMINAL LAW-II : FINAL DRAFT

“CASE ANALYSIS: K. N. Mehra v. State of Rajasthan AIR 1957 SC 369”

SUBMITTE BY: SUBMITTED TO:

KAUMUDI UMRAO MR MALAY PANDEY

BA LLB(H) ASSISTANT PROF(LAW)

V SEMESTER DR RML NLU

ENROLLMENT NO- 150101098

1
ACKNOWLEDGEMENT

It feels great pleasure in submitting this research project to Mr Malay Pandey, without
whose guidance this project would not have been completed successfully. Next, I would
like to sincerely thank my seniors, whose suggestions and guidance assisted me
throughout the entire tenure of making the project.

Last but not the least, I would like to express my heartfelt gratitude towards my parents
and friends who guided me and helped me at every possible step.

- Kaumudi Umrao

2
 TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 4
STATEMENT OF FACTS ............................................................................................................. 4
ISSUES INVOLVED...................................................................................................................... 5
LAW ON THE POINT ................................................................................................................... 5
DECISION OF THE COURT ........................................................................................................ 5
CASE ANALYSIS.......................................................................................................................... 6
CONSENT: ..................................................................................................................................... 6
DISHONEST INTENTION: ........................................................................................................... 6
LATER DEVELOPMENTS ........................................................................................................... 8
CONCLUSION ............................................................................................................................... 9
BIBLIOGRAPHY............................................................................................................................9

3
INTRODUCTION
Human being is reasoning being. Theories and conceptualizations of morality are interlinked to a
conception of what is essential to a human being. Theft is considered to be a wrong right from
the very beginning of the society. According to Smritis, if you took away any article belonging to
another by whatever methods, you are said to have committed theft. Illegal gains made by
persons adopting deceptive methods are also said to be theft.

The present case deals with the offence of theft and is viewed as one of the leading decision on
theft. In the present case the trial court and the High Court convicted accused for theft. The
accused went on appeal to the Supreme Court which affirmed the decision of lower courts. In
this case Supreme Court also differentiated between the English law and the Indian law, Court
also analysed the question that whether temporary deprivation of the property would amount to
theft or not?

This project will analyse the decision delivered by the SC and will look into the aspects of
temporary deprivation of property further it will also try to understand the distinction made by
SC between English law and Indian law on theft.

STATEMENT OF FACTS
K. N. Mehra and M. Z. Philips were cadets on training in Indian Air Force Academy, Jodhpur.
Philips was discharged from the academy on 13th May 1952 for misconduct. On 14th May 1952
he was due to leave Jodhpur by train. His friend 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 the morning of 14th May. 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. On the forenoon of the same day they landed at a place in Pakistan about
100 miles away from the Indo-Pakistan border. On the morning of 16th May1952, at about 7 a.m.
they contacted Indian High Commissioner in Pakistan 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

4
go back to Delhi. Thereupon the Indian High Commissioner 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.

One of the main contentions of the accused was that if they had the inclination to take the aircraft
to Pakistan, they would not have contacted the Indian High Commissioner at Karachi.

Both were 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. They appealed in Supreme Court against the conviction

ISSUES INVOLVED
1) Whether the appellant have dishonest intention or not to take away the aircraft?
2) Whether temporary loss of property would amount to theft?

LAW ON THE POINT

1. Section 378 and 379 of IPC relating to theft.

Section 378 says- “Whoever, intending to take dishonestly any moveable 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.”

Section 379 says- “Whoever commits theft shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with both.”

DECISION OF THE COURT

It was 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

5
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.
The sentence given by the trial court was maintained.

CASE ANALYSIS
Theft is defined in Section 378 of the Indian Penal Code as-
“Whoever, intending to take dishonestly any moveable 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”
In the present case court laid down two important ingredients of theft from the definition which
are- Consent and dishonest intention.

CONSENT:
The first question which was raised was that whether there was consent on the part of the
respondents or not, for the taking of aircraft? On this question the appellant raised the contention
that there was implied consent in moving of the aircraft as appellant was cadet in the academy,
who in the normal course would be allowed to fly in an aircraft for the purpose of training.

But court rejected this contention on the basis of evidence which made it clear that the taking of
aircraft in the present case has no relation with any such training. The aircraft was different to
what is intended for appellant training course. The flight was taken before the time and without
the permission of authorities and with the person (Philips) who having been discharged, could
not be allowed to take the aircraft.

DISHONEST INTENTION:
The appellant raised the contention that there is no proof of dishonest intention in the present
case. On this point court looked into Section 24 of IPC, which 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".”

6
Wrongful gain and wrongful loss has been defined in the Section 23 of the IPC which on
combine reading says that- a person can be said to have dishonest intention if in taking the
property to which the person so gaining is not legally entitled or to cause loss, by wrongful
means, of the property to which the person so losing is legally entitled.

Now question was whether there was wrongful gain to the appellant or wrongful loss to the
respondent? On this point the appellant raised the contention that they have not intended to cause
wrongful gain or wrongful loss because as soon as they got to know that they were in Pakistani
territory they contacted the Indian High Commissioner to Pakistan and asked him to arrange a
flight for Delhi so that they can contact higher authorities further they didn’t carry any of their
belongings which shows that they had intention to return back. But court very rightly pointed out
that the gain or loss contemplated need not be a total acquisition or total deprivation of the
property but it is enough if it is a temporary retention or temporary deprivation of the property.
Court differentiated between the “larceny” in English law and Indian law. Under English law
Section 1(1) of the Theft Act 1968 defines theft as-

“A person is guilty of theft if he dishonestly appropriates property belonging to another with the
intention of permanently depriving the other of it.”

The English law clearly talks about the permanent deprivation while SC in the present case
maintained that even temporary deprivation would suffice.

Court also cited the case of Queen-Empress v. Sri Churn Chungo,1 in support of its contention,
where the court held that-

"It is sufficient to show an intention to take dishonestly the property out of any person's
possession without his consent, and that it was moved for that purpose. If the dishonest intention,
the absence of consent, and the moving are established, the offence will be complete, however
temporary may have been the proposed retention.”(Para 5)

In the case of Emperor v. Naushe Ali Khan2the applicant snatched some books from a boy as he
was coming out of school and told the boy that he would return the books if he came to his

1
Queen-Empress v. Sri Churn Chungo(1895) ILR 22 Cal 1017.

7
house. The question was whether the applicant committed theft. In this case again the court
differentiated between the English offence of “larceny” and the Indian offence of theft and said
that under Indian law theft may be committed even where there is no intention to deprive the
owner of the property permanently.

In the present case the court said that taking out the aircraft by the appellant for the unauthorised
flight gave the appellant the temporary use of the aircraft for his own purpose and deprived the
owner of the aircraft viz. the government, of its legitimate use of its purpose. This clearly shows
the unlawful gain or loss by unlawful means.

The last question which the court analysed is that whether causing such wrongful gain or loss
was intentional or not on this point court relied on the facts of the case and said that the use of
aircraft and causing loss to government of the legitimate use is intentional which is clearly
shown by the facts that the aircraft was different to what is intended for appellant training course.
The flight was taken before the time and without the permission of authorities and with the
person (Philips) who having been discharged, could not be allowed to take the aircraft. Further
appellant misrepresented the mechanic on duty that he had the permission to fly the aircraft.

These all fact shows the intention of the appellant to cause wrongful gain or wrongful loss. In the
present court rightly found the appellant guilty under Section 378 and Section 379 of the IPC.

LATER DEVELOPMENTS
In the case of Pyre LalBhargave v. State of Rajasthan3again the question was whether the
temporary deprivation of property or taking property not with the intent to retain it permanently
would amount wrongful gain or loss or not? The SC right pointed out that the offence of theft is
committed even by a temporary removal from the possession of another even though offender
intended to return it later on.

2
Emperor v. Naushe Ali Khan(1911) 34 All 89.
3
Pyre LalBhargave v. State of RajasthanAIR 1963 SC 1094.

8
CONCLUSION
This case was rightly decided by the SC. In this case SC has rightly pointed out that the gain or
loss contemplated need not be a total acquisition or total deprivation, but it is enough if it is
temporary retention of property by the person wrongfully gaining or temporary keeping out of
property from the person legally entitled.

BIBLIOGRAPHY
 www.scconline.com
 Indian Penal Code, Prof. S N Mishra, 20th Edition(2016), Central Law Publications