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CHAPTER-FIVE

MENS REA IN OFFENCES AGAINST PROPERTY

INTRODUCTION

The Chapter relating to the offences against property is the second

largest chapter in the Indian Panel Code and it ought to be so. Human nature

as it is, acquisition of property has been a relentless pursuit since the beginning

of civilization. In the absence of a central authority, private property was

sought to be protected by one’s own might. Later on, the State extended its

protection to private property by statutory provisions.

Recalling the days, when Indian Panel Code was enacted, it was

inevitable that property received minutest protection from State authorities.

All sorts of offences relating to property have been specifically defined and

included in this Chapter.

THEFT

In the criminal law, theft (also known as stealing) is the illegal taking of

someone else's property without that person's freely-given consent. As a term,

it is used as shorthand for all major crimes against property, encompassing

offences such as burglary, embezzlement, larceny, looting, robbery,

trespassing, shoplifting, intrusion, fraud (theft by deception) and sometimes

criminal conversion. In some jurisdictions, theft is considered to be

Mens Rea in Offences against Property 175

synonymous with larceny; in others, theft has replaced larceny. Someone who

carries out an act of or makes a career of theft is known as a "thief'.

Theft under English Law

Theft was codified into a statutory offence in the Theft Act 1968 which

defines it 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".

(a) Mens Rea

The actus reus of theft is usually defined as an unauthorised taking,

keeping or using of another's property which must be accompanied by a mens

rea of dishonesty and/or the intent to permanently deprive the owner or the

person with rightful possession of that property or its use.

Theft under American Law

Although many US states have retained larceny as the primary offense,

some have now adopted theft provisions.

For example, California consolidated a variety of common law crimes

into theft in 1927, and now distinguishes between two types of theft, grand

theft and petty theft.1 Grand theft generally consists of the theft of something

of value over $400 (it can be money, labor or property),2 while petty theft is the

1 California Penal Code Section 486.2 California Penal Code Section 487.


default category for all other thefts.3 Both are felonies, but grand theft is

punishable by a year in jail or prison,4 while petty theft is punishable by a fine

or six months in jail.5 As for the older crimes of larceny, embezzling, and

stealing, any references to them now mean theft instead.6

In many states, grand theft of a vehicle is charged as "grand theft auto".

This charge became the title of a popular series of video games about stealing cars.

Repeat offenders who continue to steal may become subject to life

imprisonment in certain states.7

Theft in Canada

Theft is dealt with by Part 9 of the Criminal Code of Canada which is

the part that covers property crime. Section 322 in Part 9 creates a general

definition of theft, while other sections such as section 326 (which deals with

the theft of gas, electricity and telecommunication services) define special

kinds of theft. According to the general definition in section 322 a person steals

a thing if he or she takes or converts it fraudulently, without colour of right and

with intent to deprive the owner of it, either permanently or temporarily. For

the purposes of punishment theft is divided into two separate offences by

section 334. If the thing stolen is worth more than $5000 or is a testamentary

3 California Penal Code Section 488.4 California Penal Code Section 489.5 California Penal Code Section 490.6 California Penal Code Section 490a.7 See Rum/nel v. Estelle, 445 U.S. 263 (1980) (upholding life sentence for fraudulent use of a credit

card to obtain $80 worth of goods or services, passing a forged check in the amount of $28.36, and obtaining $120.75 by false pretenses) and Lockyerv. Andrade, 538 U.S. 63 (2003) (upholding sentence of 50 years to life for stealing videotapes on two separate occasions).


instrument it has a maximum punishment of 10 years imprisonment, otherwise

the longest term of imprisonment possible is 2 years.

Theft under Indian Law

The offence of theft consists in the dishonest taking of any moveable

property out of the possession of another without his consent. Dishonest

intention exists when the person so taking the property intends to cause

wrongful gain to himself or wrongful loss to the other. This intention is known

as animus furandi and without it the offence of theft is not complete. Fish in

their free state are regarded as ferae naturae but they are said to be in the

possession of a person who has possession of any expanse of water such as a

tank, where they live but from where they cannot escape. Fishes are also

regarded as being in the possession of a person who owns an exclusive right to

catch them in a particular spot known as a fishery but only within that spot.

There can thus be theft if fish from a tank which belongs to another and is in

his possession, if the offender catches them without the consent of the owner

and without any bona fide claim of right.

“Whoever, intnding 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”.

Now the ordinary rule that mens rea may exist even with an honest

ignorance of law is sometimes not sufficient for theft. A claim of right in good


faith, if reasonable, saves the act of taking from being theft and where such a

plea is raised by the accused it is mainly a question of fact whether such belief

exists or not. This court in Criminal Appeal in Sanyasi Apparao v. Boddepalli

n

Laksminarayana , observed as follows:

It is settled law that where a bond fide claim of right exists, it can be a

good defence to a prosecution for theft. An act does not amount to theft, unless

there be not only no legal right but no appearance of colour of a legal right.

By the expression "colour of a legal right is meant not a false pretence

but a fair pretence, not a complete absence of claim but a bonafide claim,

however weak. This Court observed in the same case that the law was stated

in8 9:

“If there be in the prisoner any fair pretence of property or

right, or if it he brought into doubt at all, the court will

direct an acquittal and referred to 1 Hale PC 509 that "the

best evidence is that the goods were taken quite openly.

The law stated by East and Hale has always been the law

on the subject of theft in India and numerous cases

decided by Indian Courts are to be found in which these

principles have been applied”.

8 1962 (Supp) 1 SCR 8 : (AIR 1962 SC 586).9 2 East PC 659 to be.


(a) Intending to take Dishonestly

Intention is the gist of the offence. It is the intention of the taker which

must determine whether the taking or moving of a thing is theft. The intention

to take dishonestly exists when the taker intends to cause wrongful gain to one

person or wrongful loss to another person.10 Where an aircraft was taken out

of India to Pakistan without the permission of the Government to whom it

belong it was considered to cause loss to the Government and the act of the

accused was held to be a theft.11 Where, the accused, acting bona fide in the

interest of his employers, finding a party of fishermen poaching on his master’s

fisheries took charge of the nets, and retained possession of them, pending the

17orders of his employers, it was held that the accused was not guilty of theft.

The intention to take dishonestly must exist at the time of the moving of the

property. This is known as animus furandiP If the act done is not done animo

durandi, it will not amount of theft.14 Where the owner is kept out of

possession temporarily not with any such intention, but only with the object of

causing him trouble in the sense of mere mental anxiety, and with the ultimate

intention of restoring the thing to him without exacting or expecting any

recompense, the detention does not amount of causing wrongful loss in any

10 Ramratan AIR 1965 SC 926 : (1965) 2 Cri LJ 18 (SC): Madaree Chowkeedar( 1965) 3 WR (Cr) 2, 3 ; Lai Mohammadk\K 1931 Pat 337 : (1931) 32 Cri LJ 739 (Pat); Bburaswg AIR 1935 Sind 115 : (1935) 36 Cri LJ 1310 (Sind).

1' Mehra KNAIR 1957 SC 369 : 1957 Cri LJ 552 (SC) : (1957) SCR 623.12 Nobin ChunderHolder( \866) 6 WR (Cr) 79. See SheomeshurRai(im) 8 AWN 97.13 Chandi Kumars. Abanidhar Roy AIR 1965 SC 585, 588 : (1965) 1 Cri LJ 496 (SC).14 Bailey{\872) LR 1 CCR 347.


sense.15 The accused went to a police station to make a complaint and found

that the constables on duty were sleeping and were not willing to attend to him.

In order to support his grievance to the Police Superintendent the accused

picked up a handcuff from the police station and took it with him. The accused

had no intention of causing wrongful loss to the police hence he cannot be

convicted of the offence of theft.16 Otherwise, a person keeping concealed for a

time a valuable thing belonging to a friend, who is a careless man, in jest, for

the purpose of causing him a little anxiety or in earnest for the purpose of

teaching him the salutary lesson of being careful, will be guilty of theft, a result

which the Legislature could never have intended. Where the accused found the

complainant’s pony at large, not within the compound or the stable of the

complaint, it having broken from its tether to which it had been tied the

previous night, and mounted it, and took a ride on it, returning home on the

following day in the evening, it was held that the accused had not committed

theft.17 Where a respectable person pinched away the cycle of another person,

as his own cycle at the time was missing, and brought it back and there was no

criminal intention and he did not intend by his act to cause wrongful gain to

himself, it was held that his act did not amount to theft. The accused, the

owner of a barge, sold it to the complainant and received part of the sale price

of the purchase money, and threatened to put an end to the contract unless the

15 Nabi Baksh{W)l) 25 Cal 416.15 Vithal Yedu KJialse 1982 Cri LJ 1873 (Bom).17 RupLaJ Singhv. Durga PrasadDubey(\9\l) 18 Cri LJ 564 (Pat) : AIR 1917 Pat 459.18 Rameshwar Singh (1936) 37 Cri LJ 456 : (1936) 12 Luck 92.


money were paid to her within a specified time. On failure of payment the

accused took the barge into her possession of the barge was still in her in law,

she could not be convicted of theft as she had not shown any dishonest

intention in seizing possession of the barge.19 Where the accused with the

intention of taking levy from the complainant removed paddy from his field in

his absence and the amount of levy was paid to the complainant, the accused

could not be held guilty of theft.20

English Law and Indian Law

Having notices that definition and ingredients it is necessary to have a

comparative evaluation with the definition of ‘theft’, as set out in the Theft

Act, 1968 of U.K. Theft is defined as : “A person is guilty of theft if he

dishonestly appropriates property belonging to another with the intention of

permenently depriving the other of it; and ‘thief and ‘steal’ shall be construed

accordingly.” There is a marked difference in the ingredients constituting theft

under Indian Law and English law. Wrongful gain is not an ingredient under

the Code while dishonest misappropriation is an ingredient in English law. In

fact the definition in English law rolls up what was larceny, embezzlement and

fraduluent conversion under the old law. Again, under English law the thief at

the time of the appropriation must intend to deprive another permenantly of his

19 SitabaiPurshottam AIR 1930 Bom 488 : (1931) 32 Cri LJ 287 (Bom).20 Venkatanarayanan 1979 Cri LJ (NOC) 34 (AP).


property. Under the Code, if movable property is taken without consent, even

91if there was intention to return it at a later date, it would nontheless be theft.

EXTORTION

Extortion is a criminal offense, which occurs when a person either

obtains money or property from another through coercion or intimidation or

threatens one with physical' harm unless they are paid money or property.

Euphemistically, refraining from doing harm is sometimes called protection.

Extortion is commonly practiced by organized crime groups. The actual

obtainment of money or property is not required to commit the offense.

Making a threat of violence or a lawsuit which refers to a requirement of a

payment of money or property to halt future violence or lawsuit is sufficient to

commit the offense.

Definition

“Whoever intentionally puts any person in fear of any

injury to that person, or to any other, and thereby

dishonestly induces the person so put in rear to deliver to

any person any property or valuable security, or anything

signed or sealed which may be converted into a valuable

security, commit “extortion22”.

21 MehraKN, AIR 1957 SC 369, 372 : 1957 Cri LJ 552 (SC) : 1957 SCR 623 ; Pyare LaiBhargava, AIR 1963 SC 1094 ; (1963) 2 Cri LJ 178(SC).

22 Section 383, The Indian Penal Code, 1860.


Mens Rea

The element of dishonesty is the essence of this offence.23 The chief

element in the offence of extortion is that the inducement must be dishonest. It

is not sufficient that there should be wrongful loss caused to an individual but

the person putting that individual in fear of injury must have the intention that

wrongful loss hsould be caused. Where the accused honestly believed that the

complainant had taken the money belonging to him (the accused), an attempt

to get it back cannot be said to be with the intention of causing wrongful loss to

him.24

CRIMINAL BREACH OF TRUST

What amounts to criminal breach of trust is provided in Section 405

IPC. The basic requirement to bring home the accusations under Section 405

are the requirements to prove conjointly (1) entrustment and (2) whether the

accused was actuated by the dishonest intention or not misappropriated it or

converted it to his own use to the detriment of the persons who entrusted it. As

the question of intention is not a matter of direct proof, certain broad tests are

envisaged which would generally afford useful guidance in deciding whether

in a particular case the accused had mens rea for the crime.

Section 40526provides:

23 Padati Chenchu Reddi 1882 1 Weir 440.24 Mahadeo AIR 1950 Nag 214.23 Kailash Kumar Sanwat/a v. State of Bihar, AIR 2003 SC 3714 ; Anwar Chand

Sab Nanad/karv. State of Karnataka, (2003) 10 SC Cases 521.The Indian Panel Code, 1860.26


“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 had made touching

the discharge of such trust, or wilfully suffers any other

person so to do, commit “criminal breach of trust.”

Every breach of trust may not result in a penal offence of criminal

breach of trust. For a breach of trust to become punishable under criminal law

it must be proved that there was evidence of mental act of dishonest

misappropriation. An act of breach of trust involves a civil wrong in respect of

which the person wronged may seek his relief of damages in civil court but a

breach of trust accompanied with mens rea gives rise to criminal prosecution as

well.

Mens Rea

Criminal breach of trust and cheating, though generally involve

dishonest intention, both are mutually exclusive and different in the basic

concept. In the context of criminal breach of trust a person voluntarily parts

with the property while in cheating the person parts with the property on the

basis of an inducement which is made with a dishonest intention. The concept


of law for the respective offences are totally distinct, different in nature and

accordingly mutually exclusive with each other.

Before examining respective contentions on their relative merits, we

think it is appropriate to notice the legal position. Every breach of trust may

not result in a penal offence of criminal breach of trust unless there is evidence

of a mental act of fraudulent misappropriation. An act of breach of trust

involves a civil wrong in respect of which the person wronged may seek his

redress for damages in a Civil Court but a breach of trust with mens rea gives

rise to a criminal prosecution as well.

CHEATING

The CHEATING is defined in Section 415 of the Indian Penal Code

which provides as under :

"415 Cheating - Whoever, by deceiving any person,

fraudulently or dishonestly induces the person so deceived

to deliver any property to any person, or to consent that

any person shall retain any property, or intentionally

induces the person so deceived to do or omit to do

anything which he would not do or omit if he were not so

deceived, and which act or omission causes or is likely to

cause damage or harm to that person in body, mind,

reputation or property, is said to "cheat."

Mens Ream Offences against Property 186

Explanation.- A dishonest concealment of facts is a

deception within the meaning of this section."

The High Court quashed the proceedings principally on the ground that

Chapter XVII of the Indian Penal Code deals with the offences against

properties and, therefore, Section 415 must also necessarily relate to the

property which, in the instant case, is not involved and, consequently, the FIR

was liable to be quashed. The broad proposition on which the High Court

proceeded is not correct. While the first part of the definition relates to

property, the second part need not necessarily relate to property. The second

part is reproduced below :

"................ intentionally induces the person so deceived to

do or omit to do anything which he would not do or omit

if he were not so deceived and which act or omission

causes or is likely to cause damage or harm to that person

in body, mind, reputation or property, is said to "cheat."

Mens Rea

This part speaks of intentional deception which must be intended not

only to induce the person deceived to do or omit to do something but also to

cause damage or harm to that person in body, mind, reputation or property. The

intentional deception presupposes the existence of a dominant motive of the

person making the inducement. Such inducement should have led the person

deceived or induced to do or omit to do anything which he would not have


done or omitted to do if he were not deceived. The further requirement is that

such act or omission should have caused damage or harm to body, mind,

reputation or property.27

Section 420, IPC says that "Whoever cheats and thereby dishonestly

includes the person deceived^ to deliver any property to any person...................

shall be punished with imprisonment...................... " Cheating has been defined

in Section 415, IPC and it says that "Whoever, by deceiving any person,

fraudulently or dishonestly induces the person so deceived to deliver any

property to any person, or to consent that any person shall retain any property,

or intentionally induces the person so deceived to do or omit to do anything

which he would not do or omit if he were not so deceived, and which act or

omission causes or is likely to cause damage or harm to that person in body,

mind, reputation or property, is said to "cheat"."

A guilty intention is an essential ingredient of the offence of cheating. In

other words 'mens red on the part of the accused must be established before he

can be convicted of an offence of cheating . In Mahadeo Prasad v. State of

West Bengal9, it was held as follows:

"Where the charge against the accused is under Section

420 in that he induced the complainant to part with his

goods, on the understanding that the accused would pay

27 G. V Rao v. L.H. V. Prasad, AIR 2000 SC 2474.28 Jaswantrai Manila! Akhaneyv. The State of Bombay, AIR 1956 SC 575.29 AIR 1954 SC 724.


for the same on delivery but did not pay, if the accused

had at the time he promised to pay cash against delivery

an intention to do so, the fact that he did not pay would

not convert the transaction into one of cheating. But if on

the other hand he had no intention whatsoever to pay but

merely said that he would do so in order to induce the

complainant to part with the goods then a case of cheating

would be established."

In Hari Prasad Chamaria v. Bishun Kumar Surekha and others’°, it was

held that unless the complaint showed that the accused had dishonest or

fraudulent intention at the time the complainant parted with the money it would

not amount to an offence under Section 420, IPC and it may only amount to

breach of contract. In G. V Rao v. L.H. V Prasad and others’', it was reiterated

that guilty intention is an essential ingredient of the offence of cheating and,

therefore, to secure conviction 'mens red on the part of the accused must be

established. It has been further held that in order to constitute the offence of

cheating the intention to deceive should be in existence at the time when the

inducement was offered.32

For establishing the offence of cheating, the complainant is required to

show that the accused had fraudulent or dishonest intention at the time of

30 AIR 1974 SC 301.31 2000 (3) SCC 693.32 AIR 2000 SC 2474 : (2000 AIR SCW 2600 : 2000 Cri LJ 3487).


making promise or representation. From his making failure to keep up promise

subsequently, such a culpable intention right at the beginning that is at the time

when the promise was made cannot be presumed. It is seen from the records

that the exemption certificate contained necessary conditions which were

required to be complied with after importation of the machine. Since the

appellant-GCS could not comply with it, it rightly paid the necessary duties

without taking advantage of the exemption certificate. The conduct of the GCS

clearly indicates that there was no fraudulent or dishonest intention of either

the GCS or the appellants in their capacities as office-bearers right at the time

of making application for exemption. As there was absence of dishonest and

fraudulent intention, the question of committing offence under Section 420,

IPC does not arise. There is no allegation in the First Information Report or the

charge-sheet indicating expressly or impliedly any intentional deception or

fraudulent/dishonest intention on the part of the appellants right from the time

of making the promise or misrepresentation. Nothing has been said on what

those misrepresentations were and how the Ministry of Health was duped and

what where the roles played by the appellants in the alleged offence. The

appellants, could not be attributed any mens rea of evasion of customs duty or

cheating the Govt, of India as the Cancer Society is a non-profit organization

and, therefore, the allegations against the appellants levelled by the prosecution

are unsustainable.3^

33 Hira Lai Hari Lai Bhagwati v. New Delhi, AIR 2003 SC 2545.


The crucial word used in Section 405, IPC is "dishonestly" and,

therefore, it implies the existence of mens rea, that is to say a guilty mind. If

there is no evidence to show that the appellants had knowledge that the

vouchers were fabricated by third accused, it cannot be said that they acted

with a criminal intent. It may be, and as rightly observed by the courts below,

that they acted in a negligent manner and if they had taken due care they would

have detected the fraud, but they failed to do so. However, that by itself would

not constitute an offence under Section 409, IPC though it may expose the

appellants to disciplinary action under the relevant rules/4

MISCHIEF

A person commits mischief if he causes destruciton of property

knowing that he is likely to cause wrongful loss or damage to the public or any

preson even if an intention to cause that damage is not made out35.

Definition

“Whoever, with intent to cause, or knowing that he is

likely to cause, wrongful loss or damage to the public or

to any person, causes the destruction of any property, or

any such change in any property or in the situation thereof

as destroys or dimihses its value or utility, or affects it

injuriously, commits “mischief36”.

34 L. Chandraiah v. State ofA.P., AIR 2004 SC 252.35KasturCJiandAIR 1934 Pat221: (1934)35 Cri LJ 1304(Pat). 36 Section 425, The Indian Penal Code, 1860.


Mens rea

‘Wrongful loss or damage’ means loss or damage by unlewful means.

The Accused intailed an oil engine on his property. The complainant, who was

a neighbour of the accused, instituted criminal proceedings against the accused,

alleging that his property was damaged by reason of vibrations from the

engine. It was held that the accused was not liable to convicted of mischief,

for there was nothing unlawful in his installing an oil engine on his own

property and working it in any way he choose, and that if the damage

complained of was attributable to what was in its nature a lawful act of the

37accused, the matter could be dealt with in the civil court.

The Bombaly High Court in an old case said that the gist of this offence

lay in the intention/8 But in a subsequent case it has held that the terms of the

section are satisfied when ther is a distinct finding on the question of the

accused’s knowledge, and the question of intention is material only as regards

the sentence/9 This is the correct view. The offence of mischief imports an

act done wilfully and not merely negligently.40

This section does not necessarily contemplate damage of a destructive

character. It requires merely that there should be an invasion of a right, and

diminution of the value of one’s property, caused by that invasion of right,

37 PunjajiBapujiBagul AIR 1935 Bom 164 : (1935) 36 Cri LJ 940 (Bom).38 Shama (1874) Unrep Cr G 88.39 Revsingg{\%94) Cr RNo. 13 of 1894, Unrep Cr C 690.1,0 AkidiiUah{ 1911) 5 SLR 263 : (1912) 13 Cri LJ 536.


which must have been contemplated by the doer of it when he did it.41 The

damage need not, encessarily, consist in the infringement of an existing,

present, and complete right, but it may be caused by an act done now with the

intention of defeating and rendering infructuous a right about to come into

existence. Any person who contracts to purchase property, and pays in a

portion of the purchase-money, has such an interest in that property, although

his title may not be complete, or his right final and conclusive, that the

destruction of such property may cause to him wrongful loss or damage

within the meaning of this section.42 The probable consequential damage to

other property would not of itself constitute mischief.43

HANDLING (under English Law)

In English Criminal Law, handling takes place after the theft is

completed and is committed by a fence or other person who helps the thief to

realise the value of the stolen goods.

The Offence

Under Section 22 Theft Act 1968 :

“A person handles stolen goods if (otherwise than in the

course of stealing), knowing or believing them to be

stolen goods he dishonestly receives the goods, or

dishonestly undertakes or assists in their retention,

41 JuggeshwarDass v. Koylash Chunder Chatterjee(1885) 12 Cal 55.42 Dharma Das Ghose v. Nusseruddin (1886) 12 Cal 660.43 (1868) 4 MHC (Appx) 15 : 1 Weir 5 i 2.


removal, disposal or realisation by or for the benefit of

another person, or if he arranges to do so”.

Handling stolen goods is an hybrid offence with a maximum term on

conviction on indictment of 14 years imprisonment to represent the potential

seriousness of the offence. It also has a very wide range of wordings for

charging purposes with more than twenty possible permutations for the

offence, i.e. "undertakes the retention", "assists the retention', "arranges to

undertake the retention", etc.

Mens Rea

The mens rea (Latin for "guilty mind") test of dishonesty for

undertaking or assisting in the retention, removal, disposal or realisation of

stolen goods by or for the benefit of another person, or arranging to do so, is

the same as for theft44.

CRIMINAL DAMAGE

Under English law, the Criminal Damage Act 1971 is the main statute covering

damage to property. It repealed the common law and all the statutory offences

except some of those under the Malicious Damage Act 1861. It also repealed

the offence of arson but allowed the use of the term for charging purposes.

The Offences

Section 1(1) provides:

44 Rv. Ghosh 15 CrAppR154.


“A person who without lawful excuse destroys or

damages any property belonging to another intending to

destroy or damage any such property or being reckless

whether any such property would be destroyed or

damaged shall be guilty of an offence”.

Mens Rea

The mens rea of all the offences is direct or oblique intention, or

subjective recklessness as defined by the House of Lords in R v. (j5. Bingham

LJ. stated that a person acts 'recklessly' with respect to:

(i) a circumstance when he is aware of a risk that it exists or will exist;

(ii) a result when he is aware of a risk that it will occur; and it is, in the

circumstances known to him, unreasonable to take the risk.

In Booth v. Crown Prosecution Service46, the Divisional Court upheld

the defendant pedestrian's conviction on a charge under the Criminal Damage

Act 1971 that, by rashly dashing into the road, he recklessly damaged the

vehicle that hit him. This result must be correct if a pedestrian does actually

consider the possibility of damage any vehicle that might become involved in

an accident, but it seems more likely that, if the defendant stopped to consider

any risks at all, it would surely have been confined to the risk of his own

injury.

45 (2003) 4 AUER 765.46 (2006) All ER (D) 225 (Jan).


LARCENY

In the United States, larceny is a common law crime involving stealing.

Under the common law, larceny is the trespassory taking and asportation of the

(tangible) personal property of another with the intent to deprive him or her of

it permanently. In English law, the common law offense was codified into the

Larceny Act 1916. In turn, the terminology and substance was converted into

theft by the Theft Act 1968.

Larceny under the American Law

Trespass limits the crime to acts which involve a violation of the right of

possession that is, lawful possession prior to the act negates trespass (see

embezzlement). Even if the prior owner did not have possession (as in, lost or

misplaced), then he is deemed to still have constructive possession. Therefore,

if a finder knew or could determine who the owner was, and at the time he

found it intended to keep it, then the finder has committed trespass. Generally,

however, the law cannot convict a finder unless the property bore some

indication it belonged to somebody, and the finder intended to keep it at the

time of the finding .

Asportation and taking involve physical movement of the property. That

is, if the property is not moved, then there is no larceny. Furthermore, if a

person (T) tells the other (I) that the item is his (T's), then authorizes I to take

it, and I takes off with it, it is T whom the law deems to have asported—because

47 Section 223.5, The Model Penal Code.


I is protected by the fiction of innocent agency. Taking is typically defined as

exercising control and dominion over the property.

Larceny under the Common Law

Larceny under common law is never applied to real property, or

services. However, in the U.S., the Model Penal Code (MPC) states that

services can be the subject of theft. Wild animals {ferae naturae) are deemed to

not be the property of the owner of whatever land they are found on, so takings

of wild animals are also not subject to larceny.

One can only "steal" one's own property when another has a better right

to possession at the relevant time. Larceny is a crime of possession, not

ownership. Thus, if a vehicle is under the possession of a mechanic, and the

owner takes the vehicle, he could be guilty of larceny. (This is known as the

mechanic's lien.).

The intent required is that one intended to deprive the possessor of the

property "permanently". Courts have held that "permanence" is not simply

keeping forever; it can include the intent to deprive the possessor of economic

significance, even if there are plans to return the property later. Although the

mens rea of larceny is the intent to steal, the focus is on the loss to the

possessor, not the gain to the defendant. Thus, even if the thief did not gain in

the taking, it could still be classed as larceny if the possessor lost in the

process. Further, the mens rea and actus reus must coincide. If one rents a car


with intent to return, then decides to keep it, then there is no larceny (see

embezzlement).

In most of the United States the common law definitions of certain

crimes have been modified. Quite often the general crime of theft has replaced

larceny, and most related common law and statutory crimes such as

embezzlement, false pretenses, robbery, and receipt of stolen property.

ROBBERY

Robbery under English Law

Robbery is the crime of seizing property through violence or

intimidation. A perpetrator of a robbery is a robber. Violence is an ingredient

of most robberies, and its use sometimes results in the murder of the victim(s).

Robbery is generally an urban crime. In common with most legal terms, the

precise definition of robbery varies between jurisdictions.

(a) Definition

Under section 8 Theft Act 1968 of English law, robbery is an indictable

only offence which occurs if the defendant:

“steals, and immediately before or at the time of doing so,

and in order to do so, he uses force on any person or puts

or seeks to put any person in fear of being then and there

subjected to force.”


(b) Mens Rea

The threat or use of force must be used immediately before or at the

time of the stealing intentionally or recklessly to facilitate the stealing. Force

used after the actus reus of theft is complete will only be threatening

behaviour, assault, assault with intent to rob or a more serious offence against

the person.

Robbery under The Indian Panel Code

Section 390:- In all robberies there is either theft or extortion.

“When theft if robbery : Theft is “robbery” if, in order to

the committing of the theft, or in committing the theft, or

in carrying away or attempting to carry away property

obtained by the theft, the offender, for that end,

voluntarily causes or attempts to cause to any person death

or hurt or wrongful restraint, or fear of instant death or of

instant hurt, or of instant wrongful restraint.”

“When extortion is robbery : Extortion is “robbery” if

the offender, at the time of committing the extortion, is

in the presence of the person put in fear, and commits

the extortion by putting that person in fear of instant

death, of instant hury, or of instant wrongful restraint to

that person, or to some other person, and by so putting in


fear, induces the person so put in fear then and there to

deliver up the thing extorted.”

(a) Mens rea

The section contemplates that the accused should have, from the very

start, the intention to deprive the complainnat of the property, and should for

that purpose either hurt him or place him under wrongful restraint.48 The

definition of “robbery” requires that either death or hurt or wrongful

confinement is caused or it must be actually found that the victims wer eput in

fear of instant death, instant hurt or instant wrongful confinement. In the

absence of these findings and merely because the articles were removed from

the persons of the victims when the accused were armed with lathis, does not

be itself make out a case of robbery.49

Where no force or show of force is found to have been used in the

committing of theft, etc. the offence of robbery cannot be said to have been

committed.50 If theft is already committed and violence is used to help an

offender to escape, theft is not robbery. When two views are possible that

violence was used either to help in removal of stolen article or to enable an

offender to escape after commission of theft, the view of favourable to the

accused should be accepted.51

48 MirBaz AIR 1935 Pesh 49 : (1935) 36 Cri LJ 894 (Pesh).49 Basu Domb AIR 1959 Ori 171 : 1959 Cri LJ 1203 (Ori).50 SheoMurarMK 1955 All 128 : 1955 Cri LJ 336.51 TitirDusadh 1966 Cri LJ 1474 (Pat): AIR 1966 Pat 453.


BURGLARY

Burglary also called breaking and entering or house breaking - is a

crime related to theft. It typically involves someone breaking into a house with

an intent to commit a crime. To carry out a burglary is to burgle (British

English) or burglarize (US English).

Burglary under American Law

In most jurisdictions in the United States, burglary is a felony and

involves trespassing, or entering a building or remaining unlawfully with intent

to commit any crime, not necessarily a theft - for example, vandalism.

Many other US states treat burglary as a more serious crime when it

occurs at night; California formerly prosecuted night-time burglary as

"burglary in the first degree" and daytime burglary as "burglary in the second

degree", under most circumstances (this state now uses building type —

residential vs. commercial — in making the determination, with residential

burglaries carrying the more serious charge). In states that continue to punish

night-time burglary more severely than daytime burglary and the crime

occurred during twilight, a standard of 30 minutes after sunset or before

sunrise will often be observed as the boundary between night and day.

Burglary under English Law

In England and Wales, burglary is dealt with in section 9 Theft Act

1968 which provides :


(l)(a) any person who enters as a trespasser, any building or part of a

building, inhabited vehicle or vessel with the intent to steal, inflict grievous

bodily harm or commit criminal damage will be guilty of the offence of

burglary.

(l)(b) where any person, having entered any building, part of a building,

inhabited vehicle or vessel as a trespasser, commits or attempts to commit a

theft or inflicts or attempts to inflict grievous bodily harm.

Section 9(1 )(a) previously included entering with intent to commit rape, but

this is now charged as trespass with intent to commit a sexual offence under

section 63 Sexual Offences Act 2003.

(a) Entry as a trespasser

Trespass means that any presence, even partial, on the premises is

without the consent of the owner. This requires that the defendant knows the

entry to be unlawful. To avoid a conviction, the defendant must prove either

that he or she had the owner's consent to be on the premises for the particular

purposes, or that the owner would have consented had he or she been aware of

all the material circumstances.

(b) Mens rea

Although there may be clear evidence of an intention to steal if the

defendant is carrying housebreaking equipment, the specific intent required

under section 9(1 )(a) to inflict GBH, to rape, or to cause damage may be

difficult to prove if the accused makes no admission. If there are. evidential


problems, the accused will be charged with the substantive offence or its

attempt rather than burglary. One relevant option would be trespass with intent

to commit a sexual offence under section 63 Sexual Offences Act 2003. If the

defendant took a car from a garage and it was later found abandoned, the better

charge is TWOC. As a last resort if the accused is interrupted on the premises

before committing one of the embedded offences, the least serious offence

available to charge would be being found on enclosed premises under section 4

Vagrancy Act 1824.

FORGERY

Forgery is the process of making or adapting objects or documents (see

false document), with the intention to deceive. The similar crime of fraud is the

crime of deceiving another, including through the use of objects obtained

through forgery. Copies, studio replicas, and reproductions are not considered

forgeries, though they may later become forgeries through knowing and willful

mis-attributions.

In the 16th century imitators of Albrecht Diirer's style of printmaking

improved the market for their own prints by signing them "AD", making them

forgeries.

In the 20th century the art market made forgeries highly profitable.

There are widespread forgeries of especially valued artists, such as drawings

meant to be by Picasso, Klee, and Matisse.


This usage of 'forgery' does not derive from metalwork done at a 'forge',

but it has a parallel history. A sense of "to counterfeit" is already in the Anglo-

French verb forger "falsify."

Forgery is one of the techniques of fraud, including identity theft.

Forgery is one of the threats that have to be addressed by security engineering.

A forgery is essentially concerned with a produced or altered object.

Where the prime concern of a forgery is less focused on the object itself—

what it is worth or what it "proves"— than on a tacit statement of criticism that

is revealed by the reactions the object provokes in others, then the larger

process is a hoax. In a hoax, a rumor or a genuine object "planted" in a

concocted situation, may substitute for a forged physical object.

Forgery under English Law

Forgery is the process of making or adapting objects or documents (see

false document), with the intention to deceive. The similar crime of fraud is the

crime of deceiving another, including through the use of objects obtained

through forgery. Copies, studio replicas, and reproductions are not considered

forgeries, though they may later become forgeries through knowing and willful

mis-attributions.

(a) Mens Rea

The document cannot be said to be a forged one and when charges of

forgery were not established, there was no question of a forged document

being there. On hypothetical basis the High Court has proceeded to conclude


that the document was forged as it attributed knowledge of the forgery and

manipulation of the documents to the appellant. All non-genuine documents

are not forged. They must be covered by the conditions indicated in Sections

463 and 464. There is no mens rea involved.52

Forgery under Indian Panel Code

“Whoever makes any false documents or false electronic

record or part of a document or electronic record, with

intent to cause damage or injury, to the public or to any

person, or to support any claim or title, or to cause any

person to part with property, or to enter into any express

or implied contract, or with intent to commit fraud or that

fraud may be committed, commits forgery”.

Mens rea

When a false document is made, with “intent to cause damage or injury

to the public or to any person,” it is not sufficient to prove that in making the

document the accused knew that the document might injure, but it must be

provd that it was his intention that it should injure another.53 It is immaterial

whether damage, injury or fraud is actually caused or not. It is sufficient that

there should be the intention of cause it.54 The phrase “intent to cause damage

or injury” does not govern the other intents mentioned in the section. It is an

32 A. S. Krishnan v. State of Kerala, AIR 2004, SC 3229.53 Feda Hossein (1881) 10 CLR 184 ; Krishnarao AIR 1953 Nag 165 : 1953 Cri LJ 979 (Nag).34 Cliunku AIR 1931 All 258 : (1931) 32 Cri LJ 559 (All); Kalyanmal A\K 1937 Nag 89 (1937) 38

Cri LJ 233 (Nag) : ILR 1937 Nag 45.


intent complete in itself. The definition in section 463 is itself subject to the

definition in section 464 in which the two essential elements are that the act

should be done “dishonestly or fraudulently”. In other words, whichever of the

intents given in section 463 may be applicable, the act itself must be done

dishonestly or fraudulently to sustain a conviction for forgery. The use by the

Legislature of words “dishonestly or fraudulently” in the alternative obviously

means that they are not tautological but must be given different meansings.

The intention to defraud is something other than the intention to cause

wrongful gain or loss.55 Where there is reliance on causing of injury under

section 463 and on the element of ‘dishonestly’ under section 464 proof of

injury may be necessary. But where fraud is the element relied upon for

application of both the sections, it is sufficient to prove that the accused wanted

to secure advantage to himself but not also that he intended to cause injury to

another.56 If a person in order to make good a false defence and to cause

justice to miscarry, fabricates a document, by putting false dates and spurious

postmarks on an envelope, he does it with one of the intents referred to in

section 463.57

"The definition of "false document" is a part of the definition of

"forgery". Both must be read together. If so read, the ingredients of the offence

of forgery relevant to the present enquiry are as follows, (1) fraudulently

55 Emperors. Abdul Hamid AIR 1944 Lah 380 : (1945) 46 Cri LJ 341 (Lah).56 Chari RR AIR 1959 All 149 : 1959 Cri LJ 268 (All).37 Ahmad Khan AIR 1943 Sin 46 : (1942) 43 Cri LJ 905 (Sin).


signing a document or a part of a document with an intention of causing it to be

believed that such document or part of a document was signed by another or

under his authority; (2) making of such a document with an intention to

commit fraud or that fraud may be committed. In the two definitions, both

mens rea described in Section 464 i.e. "fraudulently" and the intention to

f Q

commit fraud in Section 463 have the same meaning.

FRAUD

In the broadest sense, a fraud is a deception made for personal gain,

although it has a more specific legal meaning, the exact details varying

between jurisdictions. Many hoaxes are fraudulent, although those not made

for personal gain are not best described in this way. Not all frauds are hoaxes -

electora fraud, for example. Fraud permeates many areas of life, including art,

archaeology and science. In the broad legal sense a fraud is any crime or civil

wrong for gain that utilises some deception practiced on the victim as its

principal method.

In criminal law, fraud is the crime or offense of deliberately deceiving

another in order to damage them — usually, to obtain property or services from

him or her unjustly. Fraud can be accomplished through the aid of forged

objects. In the criminal law of common law jurisdictions it may be called "theft

by deception," "larceny by trick," "larceny by fraud and deception" or

something similar.

38 Ram Narain Poplyv. Central Bureau of Investigation, AIR 2003 SC 2748.


REVIEW

To sum up, it can be rightly said that every offence relating to the

property can be punished on the proving by the prosecution the actus reus

constituting that particular offence accompanied by mens rea required for that

offence. The mens rea for every offence differs from crime to crime.

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