DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW
Indian Penal Code-II
Case Comment on:
P yar yar elal lal B har har g ava v. State of R aj astha sthan: n: A I R 19 1963 63 SC 10 1094 94..
SUBMITTED TO:
SUBITTED BY:
Mr. Malay Pandey
Rishi Sehgal
Assistant Professor Law
Enroll. No. 150101112
Dr. Ram Manohar Lohiya
Section B
National Law University
B.A. LLB (Hons.) Semester V
ACKNOWLEDGEMENT
I, Rishi Sehgal, would like to humbly present this project to Mr. Malay Pandey. I would first of all like to express my most sincere gratitude to Mr. Malay Pandey for his encouragement and guidance regarding several aspects of this project. I am thankful to the library staff as well as the IT lab staff for all the conveniences they have provided me with, which have played a major role in the completion of this paper. I would like to thank God for keeping me in good health and senses to complete this project. Last but definitely not the least, I am thankful to my seniors for all their support, tips and valuable advice whenever needed. I present this project with a humble heart.
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TABLE OF CONTENTS
CHAPTER 1: INTRODUCTION ................................................ ................................................... 3 Ingredients of Theft ................................................ ..................................................................... 3 Moveable Property .................................................................................................................. 4 Possession of Anyone ................................................... ........................................................... 4 Dishonest Intention ............................................. ..................................................................... 5 Without Consent ...................................................................................................................... 5 A Moving in order to such Taking .............................................................................................. 5 CHAPTER 2: FACTS OF THE CASE .................................................. .......................................... 6 Ruling of the Previous Courts ................................................................................................. 6 Arguments Tabled (Supreme Court hearing) .............................................................................. 7 Arguments from appellant counsel ................................................ .......................................... 7 CHAPTER 3: TEMPORARY DEPRIVIATION AND THE ENGLISH LAW .............................. 8 Theft Act 1968 ............................................................................................................................ 8 Definition ................................................... .............................................................................. 8 Appropriation .............................................................................................................................. 9 Intention to permanently deprive the owner ............................................................................. 10 CHAPTER 4: CONCLUSION ..................................................................................................... 12
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CHAPTER 1: INTRODUCTION
The preliminary study into the case, Pyarelal Bhargava v. State of Rajasthan 1, makes the scenario clear over the inclusion of the different sections of the Indian Penal Code, 18602. The case basically deals with two different legislations, the Indian Evidence Act, 1872 and the IPC. So constraining our research to the legal provisions so invoked in the judgment regarding the IPC, the researcher will move forward to give a critical analysis to the judgment of the case. The facts of the case allege the appellant, Pyarelal Bhargava, to the offence of theft, which falls under section 378 of the IPC, and the punishment for which lies in the very subsequent section, 379. Theft as defined under section 378of the IPC is:
“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 .”3
As can be seen from the section itself and also as laid down in the judgment of the landmark case of K.N. Mehra v. State of Rajasthan 4, wherein an offence of theft was committed by the accused, of an aircraft which was used for training purposes, but only on a temporary basis. 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, and later in the course of laying down the judgment the court marked out the key ingredients of the offence of theft, which shall be discussed in the sections to follow. INGREDIENTS
OF
THEFT
The ingredients of theft as can be explicitly demarcated from the definition under the section itself are:5 i.
It should be a movable property;
1
AIR
1963 SC 1094. Hereafter called the ‘IPC’. 3 Section 378,THE INDIAN PENAL CODE, 1860. 4 AIR 1957 SC 369. 5 K.I. Vibhute (ed.), P. S. A. PILLAI’s CRIMINAL LAW, p. 999. 2
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ii.
In the possession of anyone;
iii.
A dishonest intention to take it out of that p erson’s possession;
iv.
Without his consent; and
v.
A moving in order to such taking.
Even though all the text on Criminal Law, and the IPC tell us that the above signified ingredients of theft came out only in the judgment of the K.N. Mehra v. State of Rajasthan 6, but if one gives a thorough read to the judgment so passed by Justice Jagannadhadas, B we get to know that there were only two basic ingredients of theft that were discussed, which are:7 i.
Moving a movable property of a person out of his possession without his consent.
ii.
The moving being in order to the taking of the property with a dishonest intention.
Now, elaborating a bit more on the above mentioned elements of theft, as discussed by various texts and the case law cited, we can get a more lucid picture of the section as a whole.
MOVEABLE PROPERTY
The term moveable so specified in the provision has direct association with another article in the IPC, i.e. section 228. As also mentioned in the explanation to section 378, that the property so involved should not be such that it is attached to the land, unless and until there is some severance made from the part of the guilty in order to the move the property.
POSSESSION OF ANYONE
The law has always been uncertain over the use of two very crucial terms, when it comes to define theft with a much broader aspect, the two terms being: Possession and Ownership. It usually assumes the possessor to be the owner of the property.9 Hence, as stated in the case of State v. Vishwanath Tukaram 10, Transfer of possession from one person to another, be the
6
AIR 1957 SC 369. Ibid. 8 THE INDIAN PENAL CODE, Section 22- “The words moveable property are intended to include corporeal property to every description, except land and things attached to the earth or fastened to anything which is attache d to the earth.” 9 Glanville Williams, TEXTBOOK OF CRIMINAL LAW, p.690. 10 AIR 1979 SC 1825. 7
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transfer be of a very transient nature, it still remains a very important ingredient of the offence of theft.
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. The dishonest intention lies only when the act so done is to cause a wrongful harm to any person by another, by depriving him of his property in this case.
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. The primary inquiry to be made is whether the taking was invito domino, or in other words without the will or approbation of the owner. 11
A MOVING
IN ORDER TO SUCH
TAKING
As has been mentioned pretty much explicitly in the section itself and also later pointed out in the explanation(s) 1 and 2, of the section, moving the property plays a crucial role in determining the offence of theft. This is again where the ingredient of movable property is evoked again. 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, 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.
Hence, 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, we shall move forward into our research after mentioning one such area of the section which though not included in the above given ingredients, but which surely forms a grey-area in the study of the section i.e.
whether or not temporary deprivation of property amounts to the offence of theft. As not been 11
Justice C.K. Thakk er (rev.), RATANLAL & DHIRAJLAL’s LAW OF CRIMES: A COMMENTARY ON THE IPC, p. 2165. 5
mentioned about the time-period of the taking so done in the section clearly, this issue has been raised severally in front of the courts in India, and also apart from mentioning two elements of theft in the case of K.N. Mehra v. State of Rajasthan 12, the judgments became landmark also because of it mentioning about this grey area of the section in detail, which was further concretized in the case of Pyarelal Bhargava v. State of Rajasthan13, which remains subject matter of this research paper.
CHAPTER 2: FACTS OF THE CASE The appellant in the case, Pyarelal Bhargava, worked as a Chief Engineer at the Superintendent’s office. On the instance of his friend the second accused of the case, Ram Kumar Ram, 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, amounting to forgery in that case, which was also dealt by the lower courts before the case came to the apex court. The second accused replaced the original documents with some other documents. The appellant later kept the file back to the office from where he had initially taken it from, i.e. the office. Later with regards to the missing document s in the office, the appellant was questioned by the Officiating Chief Secretary during a departmental enquiry. On threat of handing over the matter to the police given the secretary, the appellant, Pyarelal, came out with the truth after refusing, to know anything about the documents, severally before him. The case before coming to the Supreme Court was heard subsequently by the Sub-Divisional Magistrate at Alwar, the Sessions Judge then finally before the High Court of Rajasthan.
R ULING OF THE PREVIOUS COURTS
When heard by the Sub-Divisional Magistrate both the accused were convicted, Pyarelal Bhargava was prosecuted under section 379 and section 46514 read with section 10915 of the IPC,
12
AIR 1957 SC 369. AIR 1963 SC 1094. 14 THE INDIAN PENAL CODE, Section 465-“Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”. 13
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whereas his friend Ram Kumar Kumar Ram was held under the offence laid under section 465 and section 379 read with section 109. On appeal against the charges so put forward on them to the Sessions Judge, he revised the punishment by waiving both the accused from the offence under section 465, and convicted Pyarelal only under section 379, whereas, Ram Kumar Ram was read under section 379 read with section 109 for forgery too, hence Pyarelal was sentenced to pay a fine of Rs 200 and Ram Kumar had to pay a fine of Rs 500. Still jittered by the ruling of the Court so far, a revision petition was filed against the High Court of the State, which later removed all the convictions as against Ram Kumar and continued those on Pyarelal. Pyarelal bhargava, with offences of theft then chose Supreme Court for his final appeal. A R G U M E N T S T A B L E D (S U P R E M E C O U R T
HEARING)
ARGUMENTS FROM APPELLANT COUNSEL
The contentions so forwarded by the appellant counsel regarding the offence of theft so charged were three fold: i.
The superintendent was in possession of the file, therefore he couldn’t have taken the file from himself.
ii.
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.
iii.
He did not intend to take the file dishonestly, as he did not receive any wrongful garn, and nor did he cause any wrongful harm to any person.16
All these arguments were very aptly countered by the court in its judgment to the case individually, to finally come out with its verdict. The final ruling of the Supreme Court will be dealt along with a critical analysis to it in the last chapter.
15
THE INDIAN PENAL CODE, Section 109- “Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this code for punishment of such abetment, be punished with the punishment provided for the offence.”. 16 Pyarelal Bhargava v. State of Rajasthan, AIR 1963 SC 1094. 7
CHAPTER 3: TEMPORARY DEPRIVIATION AND THE ENGLISH LAW T HEFT ACT 1 9 6 8
The law of theft of England is to be found in the Theft Act promulgated in 1968. This Act is not a restatement of common law; it is a code of one of the most important criminal offences of dishonest dealing with property17. 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; if a code is not so regarded, it is a failure in the effort to reform or develop the law18. This being said, I begin my analytical overview of the Theft Act of England. 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; and ‘thief’ and ‘steal’ shall be construed accordingly.” 19 The offence was originally punishable with a maximum imprisonment of up to ten years, but was later reduced to seven years. The definition of the offence under s.1 (1) of the Act is very clear and concise; the offence has four elements20: i.
Dishonesty;
ii.
Appropriation;
iii.
Property belonging to another; and,
iv.
Intention to permanently deprive the owner.
The Act includes in it the two criminal elements of actus reus and mens rea. The actus reus consists in the appropriation of the property belonging to another and the mens rea lies in the
17
David Ormerod, SMITH & HOGAN: CRIMINAL LAW, 11th ed., p.645. 18 J. Scarman, “Codification And Judge-Made Law”, Ind. LJ, 1966, p.8. 19 Theft Act 1968, s.1(1). 20 Alan Reed, Ben Fitzpatrick (eds.), CRIMINAL LAW, 4 th ed., p.441. 8
dishonest intention to permanently deprive the owner of that property21. These terms have been subject to interpretation by the Judiciary of England including the Judicial Committee of the Privy Council, the House of Lords and the Court of Appeals. The basic grey area of the discussion, is to throw light on whether the clause of permanent deprivation has been talked about specifically in the English laws or not, as was not seen in the case of Indian Laws, 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.N. Mehra22, Pyarelal Bhargava23 and Nagappa.24 Going into details of the provisions regarding permanent deprivation of property from the owner, we should first have a basic idea on what appropriation as per what the Theft Act, lays it down as. APPROPRIATION
Section 3(1) of the Theft Act says that, any assumption of a right of the owner by any person amounts to appropriation whether or not he came across that property innocently25; the Theft Act deals with the dishonest appropriation of the property belonging to another person. The section says that when a person appropriates the property of another, he assumes any or all the rights of that person over that particular property; these rights include the fundamental rights of the owner of the property such as the right to own the property, 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. Gomez.26 In other words, the assumption of any right by any person apart from the owner of the property amounts to appropriation of that property. Raising the issue of appropriation is valid when one is talking about the dishonest intent of permanently deriving one’s property. It is here, if a person with a dishonest intent takes a property out of some one’s keeping with a view of permanently depriving, but due to some fear 21
Id., p.692. AIR 1957 SC 369. 23 AIR 1963 SC 1094. 24 Queen Empress v. Nagappa, 1890 ILR 15 Bom. 25 Theft Act 1968, s.3 (1). 26 [1993] AC 442 HL. 22
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or some unprecedented situation, he makes his mind to replace it, the person would no longer be charged for the offence of theft as against the Theft Act. This is where the a mbiguity arises. INTENTION
TO PERMANENTLY DEPRIVE THE OWNER
As been explicitly mentioned in the legislation and also been discussed above, the prosecution must prove that at the time of the appropriation the accused intended to permanently deprive the owner of the property. This ordinarily presents no problems, because when A takes a book from B’s shop, it is not hard pressed to prove that A intended to permanently deprive; on the contrary, if A had found B’s book on the street and honestly believed that the owner had abandoned the book, then he cannot be said to have an intention to deprive the owner.27 The definition of an intention to permanently deprive the owner is given in s.6 of the Theft Act, as follows: 1. “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; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. 2. “Without the prejudice to the generality of subsection (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, 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.” From the statements in the above subsections of s.6 of the Act, 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; s.6
27
Alan Reed, Ben Fitzpatrick (eds.), CRIMINAL LAW, 4 th ed., p.457. 10
(2) deals with the situation where a person takes unacceptable risks with the property of another – for e.g., he may pawn the property lent to him realising he may be unable to redeem it.28 Clearly, 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 the
property
on
the
part
of
the
accused
person.
In the case of R v. Hall 29, the defendant was deemed to have stolen fat from a candle maker, even though he tried to sell it back to candle maker – here, 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, he was usurping the rights of the owner, thereby dishonestly appropriating the property. The question is however, with regards to the viability to such a clause in the Theft Act. The intention to deprive a person of his property permanently, gives rise to an ambiguity in the legislation. If one is able to prove the dishonesty in the action of the accused, but is unable to establish that he had the intention of permanently taking the property, then the accused may at most be convicted of larceny, and not theft.
28
C.M.V. Clarkson, H.M. Keating et.al, CRIMINAL LAW: TEXT AND MATERIALS, 6th ed. 2007, p.857. 29 (1848) 1 Den. 381. 11
CHAPTER 4: CONCLUSION The Indian Penal Code, when formulated the section, 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, Equity and Good Conscience. The same is the case when it comes to section 378, wherein the very non-inclusion of the terms ‘intention to permanently deprive’ is done so that the judiciary can set precedents through case laws. Before the case of Pyarelal Bhargava30, this has previously been seen in several cases, like that of K.N. Mehra 31 and Nagappa32, wherein the courts passed a judgment solely on the base of facts of the case.
Supreme Court’s Ruling The Supreme Court while delivering its judgment on the three folds contentions so made by the defense said: i.
That it doesn’t agree with the argument that the file was in possession of Pyarelal Bhargava, as the file was kept in the Secretariat of which the accused was just a mere officer, hence there was a taking out of the keeping.
ii.
Secondly, 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. Hence, one doesn’t need to permanently derive another of its property to fall under the four walls of the section.
iii.
And on the last contention so put forward, wherein the point of wrongful gain or wrongful loss was touched upon, the court said that even though the accused deprived the office of the file for a short period of time, we can’t really strike out the loss so caused during that period. Hence, the court stated the loss so being talked about here should not be of a permanent nature, 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. The Court here cited illustration (b) of section 378.
30
AIR 1963 SC 1094. AIR 1957 SC 369. 32 (1893) ILR 16 Mad 461. 31
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Therefore, after giving suitable responses to all the issues so tabled by the counsel, the court rightly favored the decision of the previous courts and dismissed the appeal by the accused, and charged him under section 378 of the IPC. Looking at the above facts and rulings by several courts on the issue and studying the concerning section with detail, as written under the IPC and also as given under the Theft Act of the common law, the researcher would like to conclude, 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. 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. 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. Even the judiciary is left with no other option but to abide by the words of the legislation. Whereas, 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, and by the inclusion of certain terms, it hasn’t streamlined the whole offence. This so rightly has been carried out by the courts as we have already seen before this case, in the cases of K.N. Mehra 33, and Nagappa34, wherein the accused was charged with the offence of theft, but the grey area remained to be the same as in this case, that the property so stolen was taken out of the possession of a person only for a short period of time, hence they accused claiming it not to be an offence of theft, but the judiciary rightly interrupting and widening the scope by studying hard into the facts and declaring a righteous judgment, as was also seen in the case of Pyarelal Bhargava.35 Hence, when taking into account the case of Pyarelal Bhargava36 exclusively, 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, which might not abide by the facts of all cases, the Court in this case rightfully dismissed the appeal by accused and 33
AIR 1957 SC 369. (1893) ILR 16 Mad 461. 35 AIR 1963 SC 1094. 36 Id. 34
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held him guilty of the offence. 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.
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