PROJECT SUBMISSION Law of Crimes ON
R v (Adrian) Small [1987] Crim LR 778: Case analysis with reference to IPC 1860 Submitted by
Varun bhandari Division c Roll no 40 Class B.B.A LL.B, Semester IV
Of Symbiosis Law School, NOIDA Symbiosis International University, PUNE In MARCH, 2013 Under the guidance of
Prof. Girjesh Shukla & Prof. Vikram Singh Symbiosis Law School, Noida
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CERTIFICATE
The project titled R v (Adrian) Small [1987] Crim LR 778: Case analysis with reference to IPC 1860 submitted to the Symbiosis Law School, NOIDA for Law of Crimes as part of internal assessment is based on my original work carried out under the guidance of Prof. Girjesh Shukla and Prof. Vikram Singh. The research work has not been submitted elsewhere for award of any degree. The material borrowed from other sources and incorporated in the project has been duly acknowledged. I understand that I myself would be held responsible and accountable for plagiarism.
Signature of the candidate Date: 14 March, 2013
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ACKNOWLEDGEMENTS
I would like to express my special thanks of gratitude to my teacher Prof. Girjesh Shukla, Prof. Vikram Singh and to as well as our Director Dr CJ Rawandale who gave me the golden opportunity to do this wonderful project on the topic Attorney-General's Reference (No 2 of 1983) [1984] 2 WLR 465, which also helped me in doing a lot of Research and i came to know about so many new things.
I am really thankful to them.
Secondly i would also like to thank my parents and friends who helped me a lot in finishing this project within the limited time.
I am making this project not only for marks but to also increase my knowledge.
THANKS AGAIN TO ALL WHO HELPED ME.
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LIST OF SIMILAR CASES
R. v Ghosh (Deb Baran) [1982] Q.B. 1053
WILLIAM v PHILLIPS (1957) 41 Cr App R 5
Parker v British Airways board [1982]
R v WOODMAN [1974]
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PARTICULARS
S.NO
TOPICS
PAGE NO.
01
BRIEF FACTS OF THE CASE
06
02
ISSUES
06
03
RULES APPLICABLE
06
04
MY ANALYSIS
07-09
05
APPLICATION
10-11
06
Conclusion/Judgment
12
07
BIBLIOGRAPHY AND WEBLIOGRAPHY
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BRIEF FACTS OF THE CASE D was charged with stealing a car. He claimed that he thought that it was abandoned, because it had been parked for some days unmoved, with a flat tyre and batter y, and no petrol.
ISSUES :Is the defendent liable for stealing the car. :Is it a crime to steal an abandoned object :How to decide whether an object has been abandoned by the owner or not?
RULES APPLICABLE
Section 24 of I.P.C defines dishonesty as f ollows:“Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss or another person is said to do that thing “dishonestly”
section 23 says about wrongful gain and wrongful loss. This section “Wrongful gain is gain by unlawful means if property to which the person losing it is legally entitled.” And “wrongful loss is the loss by unlawful means of property to which the person losing is legally entitled
Section 378 of ipc states that: 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.
Section 403 of I.P.C states that:Whoever dishonestly mis-appropriates or converts t o his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 405 of I.P.C states that-Whoever dishonestly mis-appropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
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MY ANALYSIS There are certain important concepts related to the case such as the concept of Possession,Difference between theft,robbery,extortion and dacoity,Criminal breach of trust and Criminal misappropriation of property. CONCEPT OF POSESSION Possession of tangible things is a concept that antedates conscious thought about law. It has been a rule of protection of property over centurie s. Possession also helps to connect persons to material things that a re essential to human existence such as food and clothing and other things.The concept of possession has thereby come to occupy such a vital status that it had to come within the province of legal control. Life in todays society would be impossible without psession laws which decide to whom does a property belong. Salmond says- “the continuing exercise of a claim, to the exclusive use of a thing, constitutes
the possession of it”. Bentham says defining the concept of possession is like defining the geometric conception of roundness. Absolute roundness cannot be defined and so with this concept. Maine defines possession as physical detention coupled with the intention to hold the thing detained as one‟s own. Pollock has given a different view on the meaning of possession. He said: “in common speech, a man is said to possess or to be in possession of anything which he has the apparent control, or from the use of which he has the apparent power of excluding others. Section 378 of ipc states that: Whoever, intending to take dishonestly any moveable property out of the possession of any person without that per son‟s consent, moves that property in order to such taking, is said to commit theft. Difference between theft,robbery,extortion and dacoity Extortion is committed by wrongful obtaining of consent but in theft the offender takes away the property without the owner‟s consent. The property obtained by extortion is not limited, Immovable property may be the subject of extortion.Whereas in theft only movable property are the subject to theft. In extortion the property is obtained by intentional putting a person in fear of injury to that person or to any other, and thereby dishonestly inducing him to part with the property. For an offence of dacoity, minimum number of the miscreants required is five. The term dacoity is defined in section 391 IPC which clearly postulates that when five or more person conjointly commit
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or attempt to commit a robbery or where the whole number of person conjointly committing or attempting to commit a robbery and person present and aiding such commission or attempt amount to five or more every person so committing attempting or aiding Is said to commit dacoity. The offence of robbery is defined in section 390 IPC and as is cleat from a perusal of the said section even a theft is robbery If during its commission the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restrain or fear of instant death or of instant hurt or of instant wrongful restrain. Whereas robbery is punishable under section 392 IPC dacoity is punishable under 395 of IPC. Whereas In theft the element of force does not arise.
Criminal breach of trust Section 405. of IPC defines Criminal breach of trust in the following words“Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits „criminal breach of trust.” The following ingredients are necessary to attract the operation of section 405. (a) The accused must be entrusted with property or dominion over the property; and (b) The person so entrusted (i.e., the accused) must(i)
dishonestly misappropriate, or convert to his own use, that property, or
(ii) dishonestly use or dispose of that property or wilfilly suffer any other person to do so in violation of: (1) any direction of law, prescribing the mode, in which such trust is to be discharged, or (2) any legal contract made touching the discharge of such trust. Dishonest misappropriation of property: Whoever dishonestly mis-appropriates or converts to his own use any movable property, shall
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be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
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APPLICATION:
First Isuue – Section 378 of I.P.C defines theft as follows- 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. Section 403 of I.P.C states that:Whoever dishonestly mis-appropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or wi th both. Section 24 of I.P.C defines dishonesty as follows:“Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss or another person is said to do that thing “dishonestly”. Section 23 says that “Wrongful gain is gain by unlawful means if property to which the person losing it is legally entitled.” And “wrongful loss is the loss by unlawful means of property to which the person losing is legally entitled. As can be inferred from the above sections the mens rea required for these crimes is dishonesty and will to cause wrongful gain. The accused will not be held liable as he took the car in an honest belief that it had been abandoned and thus dishonesty was not involved.
Second issueA person cannot steal property that is not owned by another at the time of the appropriation. Property which has at one time been owned may become ownerless by abandonment. So the the accused cannot be held liable of stealing the car. Third issueA property can be said to be abandoned only when the owner is indifferent to any future appropriation of the property by others; property is not abandoned because the owner has lost it and has given up the search. Consider the following situations:
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(a) Where a person deliberately leaves his newspaper on a train and it is picked up by another person who occupies the seat after them. The newspaper would not be regarded as property belonging to another and a person who took the newspaper could not be guilty of theft. (b) A woman loses her ring and long since given up the search but s he will not have abandoned it. The vital distinction between the two situations is that in example (a), the owner intends to relinquish his rights of ownership, and if property is ownerless i t cannot be stolen. One should be careful before assuming that a person has a bandoned property.
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CONCLUSION It was held that it is a misdirection for a jury to be told on a charge of theft that an unreasonable belief that the property is abandoned cannot be an honest belief. D was charged with stealing a car. He claimed that he thought that it was abandoned, because it had been parked for some days unmoved, with a flat tyre and battery, and no petrol. The judge gave the jury a number of directions on dishonesty and abandonment which may have amounted to saying that a belief in abandonment which was unreasonably held could not be an honest belief. Held, allowing the appeal, that that was a misdirection. A proper direction would have been in accordance with R. v Ghosh, that the jury should first consider whether according to the standard of reasonable and honest people was the act dishonest? If so, must D have realised that what he was doing was by those standards dishonest? (R. v Ghosh (Deb Baran) [1982] Q.B. 1053 applied). The court of appeal ruled that he could not be charged for theft if he had an honest belief to that effect,as if the car had been abandoned,though the owner would be given back the car. I would say that jury was right abd the accused should be aquitted as he took away the property with an honest belief that it had been abandoned and so Mens Rea required for the theft was not there.
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BIBLIOGRAPHY
PSA Pillai, Criminal Law168 (Lexis Nexis, 11 th Edition2012)
WEBLIOGRAPHY
http://experiencesanddreams.blogspot.in/2010/03/offences-againstpropertytheftextortion.html
http://www.legalindia.in/criminal-breach-of-trust-under-ipc-a-critical-analysis
http://www.vakilno1.com/bareacts/IndianPenalCode/S403.htm
http://en.wikipedia.org
WESTLAW.COM
MANUPATRA.COM
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