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STATE OF RAJASTHAN: AIR 1963 SC 1094 (A CRITICAL ANALYSIS)
SUBJECT TITLE: CRIMINAL LAW-I (2.3) SUBMITTED TO: PROF. (MR.) MUKUL RAIZADA SUBMITTED BY: CHINMAY KANOJIA CLASS: B.A. LL.B. YEAR: 1ST YEAR SEMESTER: 2ND SEMESTER ROLL NO.: 22LLB10
2011 NATIONAL LAW UNIVERSITY, DELHI
18602. The courts in its judgment identified dishonest intention and an implied consent on the part of the accused. The accused was finally held guilty under section 378 of IPC. 1860.THE INDIAN PENAL CODE. 1 . of an aircraft which was used for training purposes. moves that property in order to such taking. Pyarelal Bhargava v. wherein an offence of theft was committed by the accused. and the punishment for which lies in the very subsequent section. 1872 and the IPC. Hereafter called the „IPC‟.Chapter 1 INTRODUCTION 1. So constraining our research to the legal provisions so invoked in the judgment regarding the IPC.1 O V E R V I E W (L E G A L P R OV I S I ON ) The preliminary study into the case. State of Rajasthan1. 4 AIR 1957 SC 369. Pyarelal Bhargava. Theft as defined under section 378of the IPC is: “Whoever.N. to the offence of theft. 3 Section 378. 379. and later in the course of laying down the judgment the court marked out the key ingredients of the offence of theft. the Indian Evidence Act. The facts of the case allege the appellant. intending to take dishonestly any movable property out of the possession of any person without that person‟s consent. Mehra v. is said to commit theft. The case basically deals with two different legislations. 1 2 AIR 1963 SC 1094. makes the scenario clear over the inclusion of the different sections of the Indian Penal Code. State of Rajasthan4. but only on a temporary basis. the researcher will move forward to give a critical analysis to the judgment of the case.”3 As can be seen from the section itself and also as laid down in the judgment of the landmark case of K. which shall be discussed in the sections to follow. which falls under section 378 of the IPC.
POSSESSION OF ANYONE 5 6 K. A. and the IPC tell us that the above signified ingredients of theft came out only in the judgment of the K. iii. PILLAI‟s CRIMINAL LAW.“The words moveable property are intended to include corporeal property to every description. The moving being in order to the taking of the property with a dishonest intention.). section 228. Mehra v. 7 Ibid. but if one gives a thorough read to the judgment so passed by Justice Jagannadhadas. we can get a more lucid picture of the section as a whole. that the property so involved should not be such that it is attached to the land. iv. v. 999. MOVEABLE PROPERTY The term moveable so specified in the provision has direct association with another article in the IPC. As also mentioned in the explanation to section 378. It should be a movable property.I. AIR 1957 SC 369.” 2 . Vibhute (ed. S. unless and until there is some severance made from the part of the guilty in order to the move the property. except land and things attached to the earth or fastened to anything which is attached to the earth. In the possession of anyone. A dishonest intention to take it out of that person‟s possession. P. Section 22.N.2 I N GR E D I E N T S O F T HE FT The ingredients of theft as can be explicitly demarcated from the definition under the section itself are:5 i. Without his consent. as discussed by various texts and the case law cited. 8 THE INDIAN PENAL CODE. elaborating a bit more on the above mentioned elements of theft. ii. i. Moving a movable property of a person out of his possession without his consent. Now.e. and A moving in order to such taking.1. ii. p. Even though all the text on Criminal Law. which are:7 i. B we get to know that there were only two basic ingredients of theft that were discussed. State of Rajasthan6.
The primary inquiry to be made is whether the taking was invito domino. RATANLAL & DHIRAJLAL‟s LAW OF CRIMES: A COMMENTARY ON THE IPC. of the section. A tree attached to earth cannot be declared to be stolen or taken only by the virtue of it being in the position for several years.9 Hence.K. The dishonest intention lies only when the act so done is to cause a wrongful harm to any person by another.11 A M OV I N G I N O R D E R T O S U C H T A KI N G As has been mentioned pretty much explicitly in the section itself and also later pointed out in the explanation(s) 1 and 2. AIR 1979 SC 1825. It usually assumes the possessor to be the owner of the property. moving the property plays a crucial role in determining the offence of theft. by depriving him of his property in this case. when it comes to define theft with a much broader aspect. This is again where the ingredient of movable property is evoked again. DISHONEST INTENTION The very gist of theft or any other offence for that matter is formed by the very intent of the doer of the offence. p.690. Thakker (rev. 9 Glanville Williams. TEXTBOOK OF CRIMINAL LAW.). Vishwanath Tukaram10. WITHOUT CONSENT The thing so stolen so as to constitute the act of theft must have been taken without the consent of the person in possession of it. as stated in the case of State v. 10 3 . any severance so caused to part the tree from the earth to make a moving in order to such taking may cause the act to amount to theft also after looking into the various other ingredients of the offence. the two terms being: Possession and Ownership. 11 Justice C.The law has always been uncertain over the use of two very crucial terms. or in other words without the will or approbation of the owner. 2165. p. Transfer of possession from one person to another. be the transfer be of a very transient nature. it still remains a very important ingredient of the offence of theft.
whether or not temporary deprivation of property amounts to the offence of theft.4 C HA PT E R I ZA T I O N (O U T L I NE ) The research project will be divided into 5 sections for the convenience of the reader. stand firm? Hypothesis: No. AIR 1963 SC 1094. was an offence by itself. 1. 4 . 1. Third section will 12 13 AIR 1957 SC 369. the accused should be convicted for the offence. giving more emphasis to a thorough study of the facts of the case. 2) Whether the three reasons given by the counsel to nullify the offence of theft so alleged upon the accused. Even when the property of the owner is temporarily away from him.N. hence the reasons so given weren‟t strong enough to put forward such an argument. Mehra v. the judgments became landmark also because of it mentioning about this grey area of the section in detail. which wasn‟t meant to made public to private parties.3 R E S E A R C H Q U E S T I O N S (G R E Y ARE A ) The case study requires it to be divided into the following research questions: 1) Whether the temporary disposition of property from the possessor falls under the very ambit of theft as defined under section 378 of the IPC? Hypothesis: Yes. and the previous judgments passed on the similar issue. we shall move forward into our research after mentioning one such area of the section which though not included in the above given ingredients. after clearly demarcating the various ingredients so given by different texts on the IPC and also through all the cases that have been faced by the courts in India.e. the very act of sneaking the file out of the Secretariat‟s office. which remains subject matter of this research paper. The First section will give an out and out introduction to the legal provision involved. as it was done with an intention to cause harm. State of Rajasthan13. this issue has been raised severally in front of the courts in India. which was further concretized in the case of Pyarelal Bhargava v. it does. By giving the research methodology as to what topic of law will be touched upon in the research project.Hence. but which surely forms a grey-area in the study of the section i.The second section will talk about the case in general. and also apart from mentioning two elements of theft in the case of K. As not been mentioned about the time-period of the taking so done in the section clearly. State of Rajasthan12.
this case study will be to an extent a more personal take on the case and its judgment after the research will been done previously. 5 . Hence. in the end a conclusion will end research encompassing whatever has gone into the paper. and facts of the case. The fourth section deals with the interpretation of the section by various case laws and legislations in other few countries. The last section would finally analyze the case taking into consideration all the legislations.take an insight into the various other case laws been discussed by the courts in India regarding to facts which revolve around the similar issues as in this case.
1860. which was also dealt by the lower courts before the case came to the apex court.e. THE INDIAN EVIDENCE ACT. the appellant was questioned by the Officiating Chief Secretary during a departmental enquiry. the office. But the Evidence Act not being our priority subject matter. (1) Indian Evidence Act14. Later with regards to the missing documents in the office. 1872.C H A PT E R 2 FACTS ANALYSIS 2.1 B R I E F H E A D -N O T E S The case so in front of us basically deals with two Indian Legislations. he sneaked out a file from the office of the superintendent The file so contained important documents which were needed by the friend so that he could replace them unlawfully. whether a confession should or should not be excluded as being involuntary. came out with the truth after 14 15 Hereafter referred to as “Evidence Act”. and (2) Indian Penal Code. i. hence we should keep our study confined to the four walls of the section 378 and 379 of the IPC which were so involved and the appellant was alleged with the offence falling under the sections. The appellant later kept the file back to the office from where he had initially taken it from. Section 3: Interpretation clause. 6 . 1872. Ram Kumar Ram. amounting to forgery in that case. On the instance of his friend the second accused of the case. Pyarelal. the appellant. The sections so involved of the Evidence Act are section 315 and section 2416. The court very rightly pointed out that section 24 of the Evidence Act waives the stringent rule of proof as laid down by section 3 of the same act and requires the court to form a prima facie opinion on the evidence and circumstances of the particular case. threat or promise”. 16 THE INDIAN EVIDENCE ACT. 1872. which deal with the fact about voluntary and forced confessions and their interpretation by the legislations and court. Section 24: “A confession made by an accused person is irrelevant in a criminal proceeding. worked as a Chief Engineer at the Superintendent‟s office. FACTS The appellant in the case. if the making of the confession appears to the Court to have been caused by any inducement. The second accused replaced the original documents with some other documents. Pyarelal Bhargava. On threat of handing over the matter to the police given the secretary.
2. or with fine. whereas. and no express provision is made by this code for punishment of such abetment.”. Still jittered by the ruling of the Court so far. Pyarelal Bhargava was prosecuted under section 379 and section 46517 read with section 10918 of the IPC.“Whoever abets any offence shall. or with both. he revised the punishment by waiving both the accused from the offence under section 465. hence needed a judicial point of view to resolve the problem. The case before coming to the Supreme Court was heard subsequently by the Sub-Divisional Magistrate at Alwar. which later removed all the convictions as against Ram Kumar and continued those on Pyarelal. Pyarelal bhargava. if the act abetted is committed in consequence of the abetment. be punished with the punishment provided for the offence. 18 THE INDIAN PENAL CODE.refusing. with offences of theft then chose Supreme Court for his final appeal. ARGUMENTS FROM APPELLANT COUNSEL 17 THE INDIAN PENAL CODE. Section 109.2 A R G U M E N T S T A B L E D (S U PRE M E C O U RT HE A RI N G ) There were healthy arguments which were tabled from the both the sides as the grey area so touched upon in this case was nowhere mentioned in the legislation. 7 . and convicted Pyarelal only under section 379. whereas his friend Ram Kumar Kumar Ram was held under the offence laid under section 465 and section 379 read with section 109. RULING OF THE PREVIOUS COURTS When heard by the Sub-Divisional Magistrate both the accused were convicted.”. Section 465-“Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years. a revision petition was filed against the High Court of the State. to know anything about the documents. the Sessions Judge then finally before the High Court of Rajasthan . On appeal against the charges so put forward on them to the Sessions Judge. hence Pyarelal was sentenced to pay a fine of Rs 200 and Ram Kumar had to pay a fine of Rs 500. severally before him. Ram Kumar Ram was read under section 379 read with section 109 for forgery too.
19 Pyarelal Bhargava v. State of Rajasthan. therefore he couldn‟t have taken the file from himself. He did not intend to take the file dishonestly. iii. AIR 1963 SC 1094. There was no intention to take it dishonestly as he had taken it only for the purpose of showing the documents to Ram Kumar and returned it the next day to the office and therefore he had not taken the file out of the possession of any person. as he did not receive any wrongful garn. to finally come out with its verdict. ii.The contentions so forwarded by the appellant counsel regarding the offence of theft so charged were three fold: i.19 All these arguments were very aptly countered by the court in its judgment to the case individually. and nor did he cause any wrongful harm to any person. 8 . The final ruling of the Supreme Court will be dealt along with a critical analysis to it in the last chapter. The superintendent was in possession of the file.
if a code is not so regarded.. The law is a sign of the changing trend of codification in the common law jurisdiction and is the law that is applicable strictly to this offence. p. 22 Theft Act 1968. Appropriation. This being said. and.1(1). These terms have been 20 21 David Ormerod. “Codification And Judge-Made Law”.8.). p. The actus reus consists in the appropriation of the property belonging to another and the mens rea lies in the dishonest intention to permanently deprive the owner of that property24. Ind. the offence has four elements23: i. 11 th ed.692. p.C H A PT E R 3 T E M P O R A R Y D E PRI V AT I O N A N D E N GL I S H L A W S 3. iv.”22 The offence was originally punishable with a maximum imprisonment of up to ten years.1 (1) of the Act is very clear and concise. 1966. LJ. but was later reduced to seven years. 4 th ed. Ben Fitzpatrick (eds.441. ii. DEFINITION The Theft Act 1968 defines the offence of 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. p. Scarman. Dishonesty. 23 Alan Reed.. iii.1 T HE FT A C T 1968 The law of theft of England is to be found in the Theft Act promulgated in 1968. 24 Id. Property belonging to another. Intention to permanently deprive the owner. it is a code of one of the most important criminal offences of dishonest dealing with property20.645.. 9 . This Act is not a restatement of common law. CRIMINAL LAW. The Act includes in it the two criminal elements of actus reus and mens rea. s. J. I begin my analytical overview of the Theft Act of England. and „thief‟ and „steal‟ shall be construed accordingly. it is a failure in the effort to reform or develop the law21. SMITH & HOGAN: CRIMINAL LAW. The definition of the offence under s.
25 26 AIR 1957 SC 369. 10 .2 A P P R OP R I A T I ON Section 3(1) of the Theft Act says that. as was not seen in the case of Indian Laws. but due to some fear or some unprecedented situation. This is where the ambiguity arises. AIR 1963 SC 1094. the Theft Act deals with the dishonest appropriation of the property belonging to another person. the House of Lords and the Court of Appeals. Gomez. 29  AC 442 HL. Mehra25. these rights include the fundamental rights of the owner of the property such as the right to own the property.27 Going into details of the provisions regarding permanent deprivation of property from the owner. the assumption of any right by any person apart from the owner of the property amounts to appropriation of that property. Pyarelal Bhargava26 and Nagappa. Nagappa.3 (1).subject to interpretation by the Judiciary of England including the Judicial Committee of the Privy Council. he assumes any or all the rights of that person over that particular property. The section says that when a person appropriates the property of another. The basic grey area of the discussion. It is here.29 In other words. Raising the issue of appropriation is valid when one is talking about the dishonest intent of permanently deriving one‟s property. lays it down as. is to throw light on whether the clause of permanent deprivation has been talked about specifically in the English laws or not. the person would no longer be charged for the offence of theft as against the Theft Act. and hence later it came out to be more of a burden on the judiciary to uphold such minor neglected ingredients of the legislation in cases like K. 3. if a person with a dishonest intent takes a property out of some one‟s keeping with a view of permanently depriving. s. 1890 ILR 15 Bom. we should first have a basic idea on what appropriation as per what the Theft Act.N. he makes his mind to replace it. 27 Queen Empress v. 28 Theft Act 1968. any assumption of a right of the owner by any person amounts to appropriation whether or not he came across that property innocently28. the right to use the property in any manner that the owner sees fit and the right to dispose of the property as been mentioned in the case of R v.
Clarkson.6 of the Act. This ordinarily presents no problems. 2007.30 The definition of an intention to permanently deprive the owner is given in s. “Without the prejudice to the generality of subsection (1) above. CRIMINAL LAW. p. the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. 6 th ed. Ben Fitzpatrick (eds. he may pawn the property lent to him realising he may be unable to redeem it.3 I NT E N T I ON T O P E R M A N E N T L Y DE P RI V E T HE OW NE R As been explicitly mentioned in the legislation and also been discussed above. this presents evidential problems relating to the intent to permanently deprive it becomes difficult for the prosecution to prove that there was intent to permanently deprive the person of 30 31 Alan Reed. p.6 (2) deals with the situation where a person takes unacceptable risks with the property of another – for e. it is clear that the first deals with the intention of treating the thing as one‟s own to dispose of regardless of the other‟s rights.457. on the contrary.” From the statements in the above subsections of s.. H. Keating et. this (if done for purposes of his own and without the other‟s authority) amounts to treating the property as his own to dispose of regardless of the other‟s rights. the prosecution must prove that at the time of the appropriation the accused intended to permanently deprive the owner of the property. as follows: 1. CRIMINAL LAW: TEXT AND MATERIALS. 2.M.V. because when A takes a book from B‟s shop. if A had found B‟s book on the street and honestly believed that the owner had abandoned the book. s.3. 4 th ed.857. and a borrowing or lending of it may amount to so treating it if. having possession or control (lawfully or not) of property belonging to another.g. where a person.6 of the Theft Act. but only if. it is not hard pressed to prove that A intended to permanently deprive. parts with the property under a condition as to its return which he may not be able to perform.).. then he cannot be said to have an intention to deprive the owner. 31 Clearly. C. “A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if it is his intention to treat the thing as his own to dispose of regardless of the other‟s rights. 11 .M.al.
the Court held him to be treating the property of another vis a vis the fat as his own to dispose of in any manner that he saw fit: here.the property on the part of the accused person. If one is able to prove the dishonesty in the action of the accused. with regards to the viability to such a clause in the Theft Act. Chapter 4 Critique and conclusion 32 (1848) 1 Den. and not theft. he was usurping the rights of the owner. 12 . 381. The intention to deprive a person of his property permanently. but is unable to establish that he had the intention of permanently taking the property. thereby dishonestly appropriating the property. In the case of R v. then the accused may at most be convicted of larceny. even though he tried to sell it back to candle maker – here. the defendant was deemed to have stolen fat from a candle maker. gives rise to an ambiguity in the legislation. The question is however. Hall32.
left a few areas untouched so as to be interpreted later by the judiciary as according to the facts of the case in front of it and also on the very principles of Justice. as the file was kept in the Secretariat of which the accused was just a mere officer.The Indian Penal Code. this has previously been seen in several cases. hence there was a taking out of the keeping. 35 (1893) ILR 16 Mad 461. wherein the point of wrongful gain or wrongful loss was touched upon. Therefore. And on the last contention so put forward. 13 . Equity and Good Conscience. one doesn‟t need to permanently derive another of its property to fall under the four walls of the section. like that of K. Secondly. when formulated the section. the court rightly favored the decision of the previous courts and dismissed the appeal by the accused. Hence. The Court here cited illustration (b) of section 378. iii. ii. the court said that even though the accused deprived the office of the file for a short period of time. Mehra34 and Nagappa35. and charged him under section 378 of the IPC. wherein the very non-inclusion of the terms „intention to permanently deprive‟ is done so that the judiciary can set precedents through case laws. the dishonest intention clause so taken up was completely rubbished by the Court saying that the act of theft so committed also includes in itself the very taking of one‟s property on a temporary basis as happened in this case. wherein the courts passed a judgment solely on the base of facts of the case. we can‟t really strike out the loss so caused during that period. That it doesn‟t agree with the argument that the file was in possession of Pyarelal Bhargava. the court stated the loss so being talked about here should not be of a permanent nature. Supreme Court’s Ruling The Supreme Court while delivering its judgment on the three folds contentions so made by the defense said: i. The same is the case when it comes to section 378. Hence. 33 34 AIR 1963 SC 1094. after giving suitable responses to all the issues so tabled by the counsel. AIR 1957 SC 369. and even the loss caused due to a temporary deprivation has to regarded as a wrongful loss enough to charge one under the section of theft.N. Before the case of Pyarelal Bhargava33.
14 . This so rightly has been carried out by the courts as we have already seen before this case. Whereas. 36 37 AIR 1957 SC 369. the researcher would like to conclude. Even the judiciary is left with no other option but to abide by the words of the legislation. Thus firming its stand to such defaulters of law the court took a bold step by reading outside the text of the section and laying down its judgment.N. in the cases of K. By including the terms like „intention to permanently deprive‟ the legislators of the Theft Act have created a more narrow and streamlined interpretation of the offence. as was also seen in the case of Pyarelal Bhargava. 38 AIR 1963 SC 1094. as written under the IPC and also as given under the Theft Act of the common law. on the other hand when talking about the Indian Legislation (the IPC) the legislation makers have left a certain degree of interpretation clause for the judiciary to think upon. 39 Id. (1893) ILR 16 Mad 461. it hasn‟t streamlined the whole offence. and Nagappa37. hence they accused claiming it not to be an offence of theft. which might not abide by the facts of all cases. but the grey area remained to be the same as in this case.Looking at the above facts and rulings by several courts on the issue and studying the concerning section with detail. The appropriation of the accused and his dishonest intention being two such factors which cannot be challenged has instilled a whole new air of ambiguity to the definition.38 Hence. and by the inclusion of certain terms. the Court in this case rightfully dismissed the appeal by accused and held him guilty of the offence. wherein the accused was charged with the offence of theft. we can say fulfilling the key notion of the law makers of the country so as to widen the scope of the offence in Indian laws and not including such elements of ambiguity and concern. that the very scope of interpretation as left by the IPC under section 378defining the offence of theft has given the whole section a more broader aspect as compared to what we have in case of the definition so given in the Theft Act of 1968. when taking into account the case of Pyarelal Bhargava39 exclusively. Mehra36. but the judiciary rightly interrupting and widening the scope by studying hard into the facts and declaring a righteous judgment. that the property so stolen was taken out of the possession of a person only for a short period of time.
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