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.
Mens Rea in Offences against Property 176
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).
Mens Rea in Offences against Property 177
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
Mens Rea in Offences against Property 178
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.
Mens Rea in Offences against Property 179
(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.
Mens Rea in Offences against Property 180
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.
Mens Rea in Offences against Property 181
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).
Mens Rea in Offences against Property 182
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 in Offences against Property 183
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
Mens Rea in Offences against Property 184
“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
Mens Rea in Offences against Property 185
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
Mens Rea in Offences against Property 187
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.
Mens Rea in Offences against Property 188
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).
Mens Rea in Offences against Property 189
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.
Mens Rea in Offences against Property 190
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 in Offences against Property 191
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.
Mens Rea in Offences against Property 192
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.
Mens Rea in Offences against Property 193
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.
Mens Rea in Offences against Property 194
“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).
Mens Rea in Offences against Property 195
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.
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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
Mens Rea in Offences against Property 197
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.”
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(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
Mens Rea in Offences against Property 199
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.
Mens Rea in Offences against Property 200
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 :
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(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
Mens Rea in Offences against Property 202
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.
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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
Mens Rea in Offences against Property 204
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.
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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).
Mens Rea in Offences against Property 206
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.
Mens Rea in Offences against Property 207
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.