Dr.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY

ACADEMIC SESSION:2022-2023

INDIAN PENAL CODE-II

K.N. MEHRA V. STATE OF RAJASTHAN-

CASE ANALYSIS

Submitted to: Submitted by:

Dr. Malay Pandey Saddhvi Nayak

Associate Professor (Law) 200101114

RMLNLU 5 th semester (Section B)

B.A.LLB. (Hons.)
 CONTENTS

S.NO. Topic Pg.NO.

1. Declaration 3

2. Acknowledgement 4

3. Introduction 5-7

4. Facts of the case 7-8

5. Issues 8

6. Arguments and Analysis 8-11

7. Judgement 11-13

10. Conclusion 13

11. Bibliography 14
 DECLARATION

I hereby declare that the project work entitled “K.N. Mehra v.

State of Rajasthan- case analysis” submitted to the Dr. Ram
Manohar Lohiya National Law University, Lucknow is a record
of an original work done by me under the guidance of Dr.
Malay Pandey, faculty of law, the Dr. Ram Manohar Lohiya
National Law University and this project is submitted in the
partial fulfillment of the requirements for the award of the
degree of B.A.L.L.B (Hons.). The results embodied in this have
not been submitted to any other University or Institute for the
award of any degree or diploma.
 ACKNOWLEDGEMENT

This research paper would not have been accomplished without the
generous contributions of individuals. First of all, I express my gratitude
to the Almighty, who aided me with his strength, wisdom and patience to
complete this project as a term paper.

Additionally, I express my gratitude and deep regards to my teacher Dr.

Malay Pandey for giving me the freedom to work on “K.N. Mehra v.
State of Rajasthan” and also for his exemplary guidance, monitoring
and constant encouragement throughout the course of this research
paper.

I would also like to thank the authorities of Dr. Madhu Limaye Library
who provided the remote access of the library to provide the research
material.

Moreover, I also thank all my batchmates and seniors who aided me

along the way, and my family and friends for their constant
encouragement without which this assignment would not have been
possible.

I know that despite my best effort some discrepancies might have crept
in which I believe my humble professor would forgive.

THANKING YOU ALL.

Saddhvi Nayak.
 INTRODUCTION

“Human being is reasoning being. Theories and conceptualizations of morality are

interlinked to a conception of what is essential to a human being. In common
usage, theft is the taking of another person's property without that person's
permission or consent with the intent to deprive the rightful owner of it. The word
is also used as an informal shorthand term for some crimes against property, such
as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud. In
some jurisdictions, theft is considered to be synonymous with larceny; in others,
theft has replaced larceny.

For the offence of theft there is punishment of imprisonment of either description

which may extend to 3 years, with fine, or both according to the Indian Penal
Code. The offence of theft is even though cognizable and non-bailable, it is
compoundable. So according to the criminal justice jurisprudence when the offence
is compoundable then generally it cannot be term as serious category of an offence.
Otherwise also the seriousness and gravity of an offence can be assessed by the
fact and circumstances involve in any incidence of crime. Every citizen in a free
country is having right to do fair, law based analysis of any judgment given by any
courts in India without challenging the integrity of the person working as judge.

According to Section 378 of Indian Penal Code, “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”. Theft literally means taking away someone’s property without his or her
consent. The main objective of this project is to analyze the legal approaches to
criminalize theft. It analyses the existing criminal law provisions to evaluate how
far these provisions are effective.
EXPLANATION 1

A thing so long as it is attached to the earth, not being movable property, is not the
subject of theft; but it becomes capable of being the subject of theft as soon as it is
severed from the earth.

EXPLANATION 2

A moving effected by the same act which affects the severance may be a theft.

EXPLANATION 3

A person is said to cause a thing to move by removing an obstacle which prevented

it from moving or by separating it from any other thing, as well as by actually
moving it.

EXPLANATION 4

A person, who by any means causes an animal to move, is said to move that
animal, and to move everything which, in consequence of the motion so caused, is
moved by that animal.

EXPLANATION 5

The consent mentioned in the definition may be expressed or implied, and may be
given either by the person in possession, or by any person having for that purpose
authority either express or implied.

The essential ingredients of the offence of theft as embodied in Section 378, IPC,
is well-explained by the Supreme Court in a leading decision in KN Mehra v. State
of Rajasthan1.

1
1957 AIR 369
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.”

FACTS OF THE CASE

The alleged theft was of an aircraft, which belonged to the government (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. On 14 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 authorized time to take off flight was between
6 am and 6.30 am on the morning of 14th May. Mehra and Phillips took off, not a
Dakota but a Harvard T-22, before the prescribed time at 5 am without
authorization and without observing any of the formalities, which were pre-
requisites 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 16 May
1952 at 7 am, both of them met the Indian 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. It was contended
for the appellant 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 Section 378 of the Indian Penal Code, 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. A temporary retention of property by a person
wrongfully gaining thereby or a temporary keeping out of property from the
person legally entitled thereto, may amount to theft under Section 378 of the
Indian Penal Code, and in this respect the offence differs from "larceny" in
English Law which contemplates permanent gain or less.

ISSUES

1. Whether the facts held to be proved constitute theft under Section 378 of the
Indian Penal Code.
2. Whether 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.

ARGUEMENT AND ANALYSIS

The appellant, K. N. Mehra, and one M. Z. Phillips were both convicted under
Section 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. Both
Mehra and Phillips were cadets on training in the Indian Air Force Academy,
Jodhpur. The prosecution is with reference to an incident which is rather
extraordinary being for alleged theft of an aircraft. The alleged theft was on May
14, 1952. Phillips was discharged from the Academy just the previous day, 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 Phillips also had
been receiving training as a Navigator. It is in evidence, however, that he knew
flying. On May 14, 1952, Phillips was due to leave Jodhpur by train in view of his
discharge. Mehra was due for flight in a Dakota as part of his training along with
one Om Prakash, a flying cadet. It is in evidence that he had information about it.
The authorized time to take off for the flight was between 6 a.m. to 6-30 a.m. The
cadets under training have generally either local flights which mean flying area of
about 20 miles from the aerodrome or they may have cross-country exercises and
have flight in the country through the route for which they are specifically
authorized. This was done before the prescribed time, i.e., at about 5 a.m. without
authorization and without observing any of the formalities, which are prerequisites
for an aircraft-flight. 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 Indo-
Pakistan 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 and informed him that
they had lost their way and forcelanded 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 on
their return to Delhi, 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 Section 342 of the Code of Criminal Procedure, was that Mehra
along with his co- accused Phillips stole away the aircraft Harvard H.T. 822 and
flew with it to Pakistan with a dishonest intention. The defence, as appears from
the answers thereto, was as follows. Mehra went to the aerodrome on the morning
of May 14, at the usual time and took off the aircraft along with Phillips and they
flew for some time. 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 beat happened was nothing more than an unauthorized
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 territory. 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." 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 justification. Appellant started the engine
himself by misrepresenting to 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 flight has to be authorized by
the Flight Commander. A flight authorization 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 authorization was given. It is difficult to
believe that the flight would have been undertaken without all the 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.

JUDGEMENT

It is, therefore, not possible to treat the facts of this case as being a mere prank or
as an unauthorized 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 Kapoor 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 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 Section
378 of the Indian Penal Code.

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 is rightly 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.

“Taking into view section 24 and section 23 of Indian penal code, 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”.

The answer to the second question is 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 of such aircraft for
flight was committed at the very outset, there is no difficulty in coming to
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 authorized flight and exploited it for a dishonest purpose in
the course thereof. In such a case, inference of initial dishonest intention may be
difficult. The conviction of the appellant under Section 379 of the Indian Penal
Code in my opinion.”

CONCLUSION

The actus reus of theft is usually defined as an unauthorized taking, keeping or

using of another's property which must be accompanied by a mens rea of
dishonesty and/or the intent to permanently deprive the owner or the person with
rightful possession of that property or its use. These ingredients are necessary to
commit the offence of theft under section 378 of IPC. If any of these ingredients is
not found, then it would not come under the purview of sec 378 of IPC and the
accused cannot be punished under sec 379 of IPC. In olden days, the gravity of
offence of theft depended upon the value of article stolen and was classified into
three categories. 1. Penalty should be proportional. 2. First offender should be
considered leniently. 3. Habitual offenders should be severely. Theft is defined in
Section 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.”
 BIBLIOGRAPHY

 https://indiankanoon.org/doc/684379/
 http://lawwprojects.blogspot.in/2013/11/project-on-theft-section-378-of-
ipc.html
 https://articlesonlaw.wordpress.com/2015/03/29/the-theory-oftheft/
 http://hanumant.com/TheftRobberyDacoity.html