Authored By : William Comer Petheram, James Quain Pigot,Banerjee

William Comer Petheram, C.J.

1. I am of opinion that the accused was rightly convicted,and that there is no reason for the interference of the Court in this case.

2. A comparison of the judgment in the case of ProsonnaKumar Patra v. Udoy Sant (ante, p. 669) with the whole of the definitionscontained in Section 23 of the Penal Code, will shew that no effect has beengiven in that judgment to the last two paragraphs of the section.

3. The judgment proceeds on the assumption that when thewords in the definition are read into Section 378 of the Penal Code in place ofthe words "dishonestly," the section will read "whoever, withthe intention of gaining by unlawful means property to which he is not legallyentitled, moves that property, is said to commit theft." It is evidentthat in making such an assumption the last two paragraphs of Section 23 havebeen left out of consideration, and if they as well as the first paragraph areread into Section 378 it will read as follows: "Whoever in order to takewith the intention of gaining property by unlawful means moves that property,or whoever in order to take with the intention of retaining by unlawful meansproperty which he does not intend to acquire, moves that property, or whoevermoves property in order to take it with the intention of keeping the person entitledto the possession of it out of the possession of it by unlawful means, thoughhe does not intend to deprive him permanently of it, is said to committheft." When the section is read in this way it is evident that it was theintention of the Legislature that it should be theft under the Code to takegoods in order to keep the person entitled to the possession of them out of thepossession of them for a time, although the taker did not intend to himselfappropriate them, or to entirely deprive the owner of them. This is preciselywhat a creditor does, who by force or otherwise takes the goods of his debtorout of his possession against his will in order to put pressure on him tocompel him to discharge his debt; and it must follow that a person who does sois guilty of theft within the provisions of the Indian Penal Code. For thesereasons I think that the case of Prosonno Kumar Patra v. Udoy Sant (ante, p.669) was wrongly decided.

James Quain Pigot, J.

4. (Prinsep and Macpherson, JJ., concurring).-We agree inthe opinion that the case of Prosonno Kumar Patra v. Udoy Sant (ante, p. 669)was wrongly decided. We think that upon the facts of that case the accused hadbeen rightly convicted of theft.

5. We think that it is not necessary to constitute the offenceof theft that there should be shown on the part of the accused an intention (touse the words at page 676 ante) "to gain the thing moved for the use ofthe gainer"; but that it is enough to show an intention to gain possessionof it for a time for a temporary purpose We think the proposition stated inMaynes Penal Code (14th Ed.) at page 340 is correct. It is as follows:"It is sufficient to show an intention to take dishonestly the propertyout of any persons possession without his consent, and that it was moved forthat purpose. If the dishonest intention, the absence of consent, and themoving are established, the offence will be complete, however temporary mayhave been the proposed retention.

6. We think that this proposition is in accordance with thedefinition of theft in Section 378 of the Code; and that it was laid down inthe cases of Quean v. Madaree 3 W.R. 2, Queen v. Preo Nath Banerjee 5 W.R. 68and In the matter of the petition of Tarinee Prosaud Banerjee (18 W.R. 8), andin the case reported in Weir, page 233 (3rd ed.), cited in the case of ProsonnoKumar Patra. v. Udoy Sant and also in the cases in Weir (3rd cd.) at pp. 235,244 and 245. We think that the decisions of this Court above referred to arenot intended to be limited to cases coming within illustration (1) of Section378 but were intended to affirm and did affirm and lay down the widerconstruction of the section stated in the passages, from Mayne above citedwhich, as we have said, we hold-to be correct.

7. We do not propose to consider the history of the PenalCode from its original draft by Lord Macaulay in 1840 to its becoming law in1860. Their Lordships of the Privy Council, in the recent case of TheAdministrator-General of Bengal v. Prem Lall Mullick ante, p. 788 : IL.R. IndAp107 have held that it is not competent to refer to proceedings of theLegislature as legitimate aids to the construction of a law.

8. We think that an intention on the part of the accused touse the possession of the property when taken for the purpose of obtainingsatisfaction of a debt due to him, and only for that purpose, has no bearing onthe question of dishonest intention under the Penal Code. To hold that such apurpose could render innocent what would be otherwise a wrongful gain within themeaning of Section 23 would amount to the recognition of a right on the part ofevery individual to recover an alleged debt by the seizure of property of hisalleged debtor, and would tend to a state of things in which every man might,if strong enough, take the law into his own hands.

9. It is necessary, we think, to point this out and perhapsthe more necessary, having regard to the views expressed by the OfficiatingSessions Judge in the letter in which, under the provisions of Section 438, hesubmits this case to the Court.

10. Mr. Justice Prinsep and Mr. Justice Macpherson agree inthis judgment.

Banerjee, J.

11. The question that arises for determination in this caseis, whether a creditor, by taking any moveable property of his debtor from thedebtors possession without his consent with the intention of coercing him topay his debt, commits the offence of theft as defined in Section 378 of theIndian Penal Code.

12. To constitute theft as denied in the section referredto-

(1) There must be an intention to take some moveableproperty,

(2) The taking intended must be dishonest,

(3) It must be from the possession of another person withouthis consent, and

(4) There must be a moving of the property in order to suchtaking,

13. Now, if there was an intention to take here within themeaning of the section, the third and fourth requirements are evidentlysatisfied; for the buffalo and the bullock were taken from the possession ofthe debtor without his consent and were carried away. The points forconsideration, therefore, are, first, whether there was an intention to takewithin the moaning of the section, and, second, whether the taking intended wasdishonest.

14. That there was a taking of the animals is not denied;but it may be said that the taking contemplated by the section is a permanenttaking and not a mere temporary taking, such as there has been in this case, inorder to force the debtor to pay his debt. I do not think that such a view iscorrect. Illustration (1) of the section clearly shows that taking a thing withthe intention of keeping it only for a time is taking within the meaning of thesection.

15. It remains now to consider whether the taking in thiscase was a dishonest taking according to the definition of"dishonestly" in Section 24, that is to say, whether the taking was"with the intention of causing wrongful gain to one person or wrongfulloss to another." I think the question must be answered in theaffirmative, as the creditor in taking and detaining the animals intended tocause both wrongful gain to himself and wrongful loss to the debtor within themeaning of Section 23; for he retained, by unlawful means, property to which hewas not legally entitled, and he unlawfully kept his debtor, who was legallyentitled to the property, out of possession and enjoyment of the same."Wrongful gain" according to the definition in Section 23 isconstituted not only by wrongful acquisition of property (which is inaccordance with the ordinary meaning of the words) but also by wrongfulretention of the same, even though such retention does not result in any profitto the person retaining it: so "wrongful loss" is constituted notonly by wrongful deprivation of property, but also by the being wrongfully keptout of the same.

16. And a thing is said to be done "dishonestly"according to the definition in Section 24, not only when it is done with theintention of causing wrongful gain to one person in the first mentioned senseof the words "wrongful gain" (and this is in accordance with theordinary popular signification of the term), but also when it is done with theintention of causing wrongful gain in the other sense, or done only with theintention of causing wrongful loss to some one, though such loss to one personmay not be accompanied by any wrongful gain to another.

17. It is this comprehensive nature of the definition of"dishonesty" in the Indian Penal Code which brings within thedefinition of "theft" cases which may cot come under the ordinarypopular signification of the term, and which has led to the use of suchexpressions as "technical theft."

18. By graduating the scale of punishment for theft fromrigorous imprisonment for three years and fine limited only by the power of theCourt holding the trial to a nominal fine, the Penal Code has no doubt provideda safeguard against its comprehensive definition of theft leading to anyhardship. But there is one anomaly which the criminal law on this point has notbeen able to avoid. The offence of theft is made a non-bailable offence (seeSchedule II of the Code of Criminal Procedure); so that, though a personaccused of theft may after conviction be let off with a fine only, if hisoffence be a light one, yet before conviction and pending trial he must, unlessthe case comes under Section 497 of the Criminal Procedure Code, or unless asuperior Court interferes under Section 498, remain in custody.

19. In making the foregoing observations, I must guardmyself against being supposed to under-estimate the gravity of an offence likethe one which has been committed in this case.

20. The view I bake, namely, that the act of the accused inthis case comes within the definition of theft in Section 378 of the IndianPenal Code, is in accordance with the general consensus of opinion in thisCourt and in the High Courts of Bombay and Madras. I need only refer to Queanv. Madarec 3 W.R. 2, Queen v. Preo Nath Barterjee 5 W.R. 68, In the matter ofthe petition of Tarinee Prosaud Banerjee (18 W.R. 8), Queen-Empress v. NagappaI.L.R. 15 Bom. 344 and the Madras case reported in Weirs Law of Offences andCriminal Procedure, 3rd edition, p. 233. Against these authorities there is thecase of Prosonno Kumar Patra v. Udoy Sant (ante, p. 669) which no doubt takesthe opposite view. Being the latest case on the point and the one that has ledto this Full Bench Reference, it requires examination.

21. The grounds of the decision in Prosowno Kumar Patra v.Udoy Sant (ante p. 669) are, shortly stated, these three:

(1) The taking contemplated by Section 378 of the IndianPenal Code is either a permanent taking or a temporary taking with intent toappropriate the thing taken to the takers use.

(2) The definition of "dishonestly" read withSection 378 shows that the wrongful gain of the thing moved must mean gain ofthe thing "for the use of the gainer" and not mere "gaining possessionof it for a temporary purpose."

(3) The omission from the Code as enacted of certainprovisions which were inserted in the draft Code supports the view embodied inthe first ground.

22. I have already shown that the first mentioned ground isnot sound, as it is opposed to illustration (I) of Section 378.

23. The second ground deals with only one part of thedefinition of "dishonestly," namely, that which speaks of wrongfulgain in one of the two senses in which that expression is used, and it takes nonotice of the other part which refers to wrongful loss, nor of the othermeaning of wrongful gain. But as I have shown above dishonesty is constitutedby either of these two elements in either of the two senses being present; andthere can be no doubt that both wrongful gain and wrongful loss were intendedto be caused in this case.

24. As to the third, ground, it is enough to say that if thedefinition in the Code as enacted clearly includes, as I think it does, a caselike the present, the omission from it of certain provisions that found a placein the draft Code can warrant no safe inference to the contrary.

25. For all these reasons I agree generally in the opinionexpressed by Mr. Justice Pigot. I must respectfully dissent from the decisionin Prosonno Kumar Patra v. Udoy Sant (ante, p. 669), and answer the questionreferred to us in the affirmative.

26. That being my opinion, I must hold that the accused inthis case has been rightly convicted of theft: and there being no reason tothink that the punishment is too severe, I would affirm both the conviction andthe sentence.

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Queen-Empress vs.Churn Chungo (20.12.1895 - CALHC)