PYARELAL BHARGAVA V. STATE OF RAJASTHAN: AIR 1963 SC 1094

(A CRITICAL ANALYSIS)

SUBJECT TITLE: CRIMINAL LAW-I (2.3)

SUBMITTED TO: PROF. (MR.) MUKUL RAIZADA

SUBMITTED BY: CHINMAY KANOJIA

CLASS: B.A. LL.B.

YEAR: 1ST YEAR

SEMESTER: 2ND SEMESTER

ROLL NO.: 22LLB10

2011

NATIONAL LAW UNIVERSITY, DELHI

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Chapter 1

INTRODUCTION

1.1 OVERVIEW (LEGAL PROVISION)

The preliminary study into the case, Pyarelal Bhargava v. State of Rajasthan1, 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 Rajasthan4, 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.

1 AIR 1963 SC 1094.2 Hereafter called the ‘IPC’.3 Section 378,THE INDIAN PENAL CODE, 1860.4 AIR 1957 SC 369.

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1.2 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;

ii. In the possession of anyone;

iii. A dishonest intention to take it out of that person’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 Rajasthan6, 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

5 K.I. Vibhute (ed.), P. S. A. PILLAI’s CRIMINAL LAW, p. 999.6 AIR 1957 SC 369.7 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 attached to the earth.”

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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 Tukaram10, Transfer of possession from one person to another, be the

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.

9 Glanville Williams, TEXTBOOK OF CRIMINAL LAW, p.690.10 AIR 1979 SC 1825.11 Justice C.K. Thakker (rev.), RATANLAL & DHIRAJLAL’s LAW OF CRIMES: A COMMENTARY ON THE IPC, p. 2165.

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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

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 Rajasthan12, 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.

1.3 RESEARCH QUESTIONS (GREY AREA)The case study requires it to be divided into the following research questions:

1) Whether the temporary disposition of property from the possessor falls under the very ambit

of theft as defined under section 378 of the IPC?

Hypothesis: Yes, it does. Even when the property of the owner is temporarily away from him,

the accused should be convicted for the offence, as it was done with an intention to cause harm.

2) Whether the three reasons given by the counsel to nullify the offence of theft so alleged upon

the accused, stand firm?

Hypothesis: No, the very act of sneaking the file out of the Secretariat’s office, which wasn’t

meant to made public to private parties, was an offence by itself, hence the reasons so given

weren’t strong enough to put forward such an argument.

1.4 CHAPTERIZATION (OUTLINE)The research project will be divided into 5 sections for the convenience of the reader. The First

section will give an out and out introduction to the legal provision involved. By giving the

research methodology as to what topic of law will be touched upon in the research project.The

second section will talk about the case in general, giving more emphasis to a thorough study of

the facts of the case, and the previous judgments passed on the similar issue. Third section will

12 AIR 1957 SC 369.13 AIR 1963 SC 1094.

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take an insight into the various other case laws been discussed by the courts in India regarding to

facts which revolve around the similar issues as in this case. The fourth section deals with the

interpretation of the section by various case laws and legislations in other few countries. The last

section would finally analyze the case taking into consideration all the legislations, and facts of

the case, this case study will be to an extent a more personal take on the case and its judgment

after the research will been done previously. Hence, in the end a conclusion will end research

encompassing whatever has gone into the paper.

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CHAPTER 2

FACTS ANALYSIS

2.1 BRIEF HEAD-NOTES

The case so in front of us basically deals with two Indian Legislations, (1) Indian Evidence Act14,

1872; and (2) Indian Penal Code, 1860. The sections so involved of the Evidence Act are section

315 and section 2416, which deal with the fact about voluntary and forced confessions and their

interpretation by the legislations and court. The court very rightly pointed out that section 24 of

the Evidence Act waives the stringent rule of proof as laid down by section 3 of the same act and

requires the court to form a prima facie opinion on the evidence and circumstances of the

particular case, whether a confession should or should not be excluded as being involuntary.

But the Evidence Act not being our priority subject matter, hence we should keep our study

confined to the four walls of the section 378 and 379 of the IPC which were so involved and the

appellant was alleged with the offence falling under the sections.

FACTS

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 documents in the office, the appellant was questioned by

the Officiating Chief Secretary during a departmental enquiry. On threat of handing over the 14 Hereafter referred to as “Evidence Act”.15 THE INDIAN EVIDENCE ACT, 1872, Section 3: Interpretation clause.16 THE INDIAN EVIDENCE ACT, 1872, Section 24: “A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise”.

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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 .

RULING 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 46517 read with section 10918 of the IPC,

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.

2.2 ARGUMENTS TABLED (SUPREME COURT HEARING)There were healthy arguments which were tabled from the both the sides as the grey area so

touched upon in this case was nowhere mentioned in the legislation, hence needed a judicial

point of view to resolve the problem.

ARGUMENTS FROM APPELLANT COUNSEL

17 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.”.18 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.”.

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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.19

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.

19 Pyarelal Bhargava v. State of Rajasthan, AIR 1963 SC 1094.

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CHAPTER 3

TEMPORARY DEPRIVATION AND ENGLISH LAWS

3.1 THEFT ACT 1968The 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 property20. 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 law21. 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.”22 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 elements23:

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

20 David Ormerod, SMITH & HOGAN: CRIMINAL LAW, 11th ed., p.645.21 J. Scarman, “Codification And Judge-Made Law”, Ind. LJ, 1966, p.8.22 Theft Act 1968, s.1(1).23 Alan Reed, Ben Fitzpatrick (eds.), CRIMINAL LAW, 4th ed., p.441.

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dishonest intention to permanently deprive the owner of that property24. 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. Mehra25, Pyarelal

Bhargava26 and Nagappa.27

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.

3.2 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 innocently28; 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.29 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

24 Id., p.692.25 AIR 1957 SC 369.26 AIR 1963 SC 1094.27Queen Empress v. Nagappa, 1890 ILR 15 Bom.28 Theft Act 1968, s.3 (1).29 [1993] AC 442 HL.

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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 ambiguity arises.

3.3 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.30

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

(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.31

30 Alan Reed, Ben Fitzpatrick (eds.), CRIMINAL LAW, 4th ed., p.457.31 C.M.V. Clarkson, H.M. Keating et.al, CRIMINAL LAW: TEXT AND MATERIALS, 6th ed. 2007, p.857.

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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. Hall32, 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.

Chapter 4

32 (1848) 1 Den. 381.

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Critique and 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

Bhargava33, this has previously been seen in several cases, like that of K.N. Mehra34 and

Nagappa35, 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.

33 AIR 1963 SC 1094.34 AIR 1957 SC 369.35 (1893) ILR 16 Mad 461.

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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. Mehra36,

and Nagappa37, 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.38

Hence, when taking into account the case of Pyarelal Bhargava39 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

36 AIR 1957 SC 369.37 (1893) ILR 16 Mad 461.38 AIR 1963 SC 1094.39 Id.

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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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