The accused was a cadet in the Indian Air Force. He took out an aircraft that was not meant for training from Jodhpur Aerodrome without the authority of the commandant and flew it away to Pakistan…. Discuss the liability of the accused of the offence of theft?

Question: The accused was a cadet in the Indian Air Force and took out an aircraft not meant for training from Jodhpur Aerodrome without the authority and flew it away to Pakistan.

Later, at the instance of the accused himself, the Indian High Commissioner in Pakistan arranged for the return of the accused and the Air-Craft to India.

It was contended on behalf of the accused that the intention of the accused was to go to Pakistan and not to steal the Aircraft which he always meant to return; there was thus no dishonest intention on the part of the accused and he could not be convicted of theft.

Discuss the liability of the accused of the offence of theft? [UPCJ. 1999]

Find the answer to the mains question only on Legal Bites. [The accused was a cadet in the Indian Air Force. He took out an aircraft that was not meant for training from Jodhpur Aerodrome without the authority of the commandant and flew it away to Pakistan…. Discuss the liability of the accused of the offence of theft? ]

Answer

The present facts of the case are borrowed from the landmark judgment KN Mehra v State of Rajasthan [AIR 1957 SC 369] on commission of theft as defined under section 378, IPC.

In this case, the alleged theft was of an aircraft, which belonged to the Indian Air Force Academy. Two youngsters, Mehra and Phillips, were cadets on training in the Indian Air Force at Jodhpur. Phillips was discharged from the Academy on 13 May 1952 for misconduct and 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 authorized time to take off flight was between 6 am and 6.30 am on the morning of 14 May. Mehra and Phillips took off, not a Dakota but a Harvard T-22, before the prescribed time at 5 am without authorisation and without observing any of the formalities, which were pre-requisites for an aircraft flight.

They landed at a place in Pakistan about 100 miles away from the Indo-Pakistan border, met the Indian High Commissioner in Pakistan at Karachi, and informed him that they had lost their way and force-landed in a field and that they had left the plane there. They requested his help to go back to Delhi. The Indian High Commissioner arranged for both of them to be sent back to Delhi in another plane. While they were on their way to Delhi, the plane stopped at Jodhpur and they were arrested and prosecuted for the offence of theft.

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 later. But the prosecution succeeded in proving that this apparently innocent move did not necessarily negative their intention at the time of taking off. It may be that after reaching Pakistan only, the impracticability of their scheme to get employment in Pakistan dawned upon them and they gave it up. It was enough to constitute the offence that they had the dishonest intention at the commencement of their journey.

The fact that they took off Harvard T-22 plane rather than the allotted Dakota, and left India at 5 am instead of the scheduled time of 6 am, without waiting for Om Prakash, and that they also refused to respond to the wireless messages from the Indian aerodrome authorities at 11 am showed that they had the dishonest intention to take off a Harvard T-22 plane. The consent that had been given by the authorities was to take off Dakota at 6 am and not the costlier plane Harvard T-22 at 5 am.

The Supreme Court held that the taking off of the Harvard T-22 plane had nothing to do with their training course. Mehra had no authority to take Phillips with him. The flight was persisted on by Mehra in spite of signals to return back when the unauthorized nature of the flight was discovered. The court said that it was impossible to imply consent in such circumstances.

The court analysed the essential ingredients of the offence of theft under section 378 as:

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

The court also explained the true meaning of dishonest intention with reference to its definitions in sections 23 and 24 of the IPC along with ‘wrongful loss’ and ‘wrongful gain’.

Taking these two definitions together, a person can be said to have a 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 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 temporary retention of property by the person wrongfully gaining or a temporary ‘keeping out’ of property from the person legally entitled.

Hence, the accused were held guilty of the offence of theft in these circumstances under section 378, IPC.

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