Bench:
- Jagannadhadas,
- B.Imam,
- Syed JafferMenon,
- PP. Govinda
Issue:
Whether there was a presence of dishonest intention to constitute theft?
Facts:
- The appellant was a cadet on training to Indian Air Force Academy, Jodhpur.
- On 14th May 1956, he wasdue for the flight in a Dakota as a part of his training. The authorized time to take off for flight was between 6 am to 6:30 am.
- However, he took off before the stipulated time, without any formalities and authorization, in another type of aircraft Harvard H.T. 822.
- Then on the same day, he force landed in Pakistan. Some days later, they contacted the Indian High Commissioner in Pakistan who arranged for both of them to be sent back to Delhi with aircraft.
- However, they were arrested at Jodhpur and prosecuted for the theft of the aircraft.
Appellant’s Contentions:
- As a cadet under training, he wasentitled to take an aircraft on flight and therefore therewas implied consent to the "moving" of the aircraftwithinthe meaning of s. 378 of the Indian Penal Code
- There was no dishonest intention, much less an intention to constitute theft, as the ultimate intention was to go to Pakistan to seek employment.
Judgment:
The court observed that the commission of theft requires:
- the absence of the person's consent at the time of moving the property
- the presence of dishonest intention at that time
These were fulfilled in the present case.
- Even though as a cadet under training he was allowed to take an aircraft on a flight but he was not allowed to take a different aircraft without theauthority of the Flight Commander and, before the appointed time, in the company of a person who been discharged. So, the first essential is proved.
- Under Sec. 23 of IPC for dishonest intention, there must be a wrongful gain or wrongful loss of a property. The court clarified that 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. In this respect " theft " under the Indian Penal Code differs from " larceny " in English law which contemplated permanent gain or loss.
- In the present case, when the appellant took off Harvard aircraft without authorization, it has given the appellant thetemporary use of the aircraft for his own purpose and has temporarily deprived the owner of the aircraft. Such unauthorized use was clearly a gain or loss by unlawful means.
- The flight to Pakistan was intentional and not accidental. From facts and circumstances, it was inferred that the story of having lost the way cannot be accepted having regard to the aircraft being airworthy, with the necessary equipment so the finding that it was a deliberate flight to Pakistan cannot be said to be unreasonable.
- Thus the court held that the flight constituted theft of the aircraft.
