FACTS OF THE CASE:
The Appellant was a training cadet in the Indian Air Force Academy at Jodhpur. One day Mehra was due for flight in a Dakota as part of his training along with one Om Prakash, a flying cadet but Mehra and Phillips took off, not a Dakota, but a Harvard H.T. 822 at about 5a.m. (which was not the prescribed time). This was done without any authorisation or without observing any of the formalities, which are prerequisites for an aircraft-flight. It was found that they force landed in Pakistan. Days later, they contacted the authorities in the Indian High Commission and on their way back to India, they were arrested at Jodhpur and prosecuted for the theft of the aircraft.
Whether the appellant will be held liable for the theft of the aircraft under section 378 of the Indian Penal code?
ARGUMENTS FROM THE APPELLANT:
- He argued that as he is a training cadet, he is entitled to take an aircraft on flight and therefore as per Section 378 of the IPC, there was an implied consent to the moving of the aircraft.
- There was no dishonest Intention as the ultimate purpose of the flight was to go to Pakistan when the flight started.
As per Section 378 commission of theft involves moving of a movable property of a person out of his possession without his consent, the moving being in order to the taking of the property with a dishonest intention. Thus, the absence of the person’s consent at the time of moving, and the presence of dishonest intention in order to such taking and at the time, are the essential ingredients of the offence of theft.
The court held that in the present case it was impossible to imply consent because taking out of the aircraft in the present case had no relation to any such training. It was an aircraft different from that which was intended for the appellant’s training course for the day. It was taken out without the authority of the Flight Commander and, before the specified time, in the company of Phillips, who having been discharged, could not be allowed to fly in the aircraft. The flight was persisted in, in spite of signals to, return back when the unauthorised nature of the flight was discovered.
In the present case there can be no reasonable doubt that the taking out of the Harvard aircraft by the appellant for the unauthorised flight has in fact given the appellant the temporary use of the aircraft for his own purpose and has temporarily deprived the owner of the aircraft, viz., the Government, of its legitimate use for its purposes, i.e., the use of this Harvard aircraft for the Indian Air Force Squadron that day. Such use being unauthorised and against all the regulations of aircraft-flying was clearly a gain or loss by unlawful means. Further, the unlawful aspect is emphasised by the fact that it was for flight to a place in Pakistan. Therefore as all the ingredients of theft are fulfilled, the flight constitutes theft of the aircraft.