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146

MOOT COURT AND CLINICAL LEGAL EDUCATION, 2020

BEFORE,

THE TRIAL COURT

STATE

(PETITIONER)

v.

D K KAPOOR & ADARSH PRIYADARSHANI

(RESPONDENTS)

ON SUBMISSION TO THE TRIAL COURT

MEMORIAL FOR THE PETITIONER

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TABLE OF CONTENTS

INDEX OF AUTHORITIES........................................................................................................... 3

STATEMENT OF JURISDICTION............................................................................................... 4

STATEMENT OF FACTS ............................................................................................................. 5

ISSUES RAISED ............................................................................................................................ 8

SUMMARY OF ARGUMENTS .................................................................................................... 9

ARGUMENTS ADVANCED ...................................................................................................... 11

ISSUE I. RESPONDENTS ARE LIABLE TO BE PUNISHED UNDER SECTION 379 OF IPC

FOR THE OFFENCE OF THEFT: .............................................................................................. 11

ISSUE I.A: THE AIRCRAFT WAS A MOVABLE PROPERTY. .......................................... 11

ISSUE I.B. THE GOVERNMENT WAS IN POSESSION OF THE MOVABLE PROPERTY

BEFORE THE THEFT TOOK PLACE.................................................................................... 12

ISSUE I.C. THERE WAS AN INTENTION TO REMOVE THE AIRCRAFT FROM DUM
DUM.......................................................................................................................................... 13

ISSUE I .C (i) THERE WAS A DISHONEST INTENTION ON THE PART OF

RESPONDENTS....................................................................................................................... 14

ISSUE I.D THERE WAS NO IMPLIED CONSENT PRESENT AT THE TIME OF TAKING
OFF AND THE FLIGHT TO BEIJING WAS INTENTIONAL. ............................................. 15

PRAYER ....................................................................................................................................... 17

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INDEX OF AUTHORITIES

Cases

He Kaw Teh v. R (1985) 157 CLR 523 ........................................................................................ 15

Indian Penal Code, 1860, § 378. ................................................................................................... 13
Malhu Yadav v. State of Bihar, (2002) 5 SCC 724. ..................................................................... 13
Manager, Spicejet Ltd. v. Sunil Kumar Bhatotia, 2017 SCC OnLine NCDRC 1566. ................. 18
Manager, Spicejet Ltd. v. Sunil KumarBhatotia, 2017 SCC OnLine NCDRC 1566. .................. 18
Medichl Chemical & Pharma (P) Ltd. v. Biological E. Ltd. and ors, (2000) 3 SCC 269............. 16
Pyarelal Bhargava v. State, AIR 1963 SC 1094. .......................................................................... 16
Queen-Empress v. Nagappa, ILR (1890) 15 Bombay 344. .......................................................... 16
Queen-Empress v. Sri Churn Chungo, ILR (1895) 22 Calcutta 1017 .......................................... 16
Queen-Empress v. Sri Churn Chungo, ILR (1895) 22 Calcutta 1017 (FB) .................................. 16
Ram Narayan Popli v. CBI, (2003) 3 SCC 641. ........................................................................... 17
Southern Electricity Supply Co. of Orissa Ltd. v. Sri Seetaram Rice Mill, (2012) 2 SCC 108 ... 17
State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772...................................................................... 18

Statutes

Indian Penal Code, 1860, § 22. ..................................................................................................... 12

Indian Penal Code, 1860, § 23. ..................................................................................................... 15
Indian Penal Code, 1860, § 24. ..................................................................................................... 15
Indian Penal Code, 1860, § 379. ................................................................................................... 17
The Code of Criminal Procedure, 1973, § 181, cl. 3. ................................................................... 12

Other Authorities

"Definition of theft - Section 378 in India penal code". India code - a repository of state and
central acts. Ministry of law and justice. ................................................................................... 14
Bratman, M. (1987). Intention, Plans, and Practical Reason. Cambridge, Massachusetts: Harvard
University Press......................................................................................................................... 15
Criminal Law – Cases and Materials, 7th ed. 2012, Wolters Kluwer Law & Business; John
Kaplan, Robert Weisberg, Guyora Binder ................................................................................ 16

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STATEMENT OF JURISDICTION

The Hon’ble Court has jurisdiction by virtue of section 181(3) of The Code of Criminal
Procedure, 1973, to try instant matter under section 378 and 379 of Indian Penal Code, 1860. The
State and D K Kappor & Adarsh Priyadarshani, being parties to the case have recognised the
jurisdiction of the trial court and agree to accept the decision of the Court.

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STATEMENT OF FACTS

1. D.K. Kapoor and Adarsh Priyadarshanan were cadets on training in the Indian Air Force
Academy, Dum Dum. The prosecution is with reference to an incident which is rather
extraordinary being for alleged theft of an Aircraft, which, according to the evidence of
the Commanding 'Officer, has never so far occurred. The alleged theft was on May 14,
2020. Adarsh was discharged from the Academy just the previous day, i.e., May 13,
2020, on grounds of misconduct. DK was a cadet receiving training as a Navigator. The
duty of a Navigator is only to guide a pilot with the help of instruments and maps. It is
not clear from the evidence whether Adarsh also had been receiving training as a
Navigator. It is in evidence, however, that he knew flying.
2. On May 14, 2020, Adarsh was due to leave Kolkata by train in view of his discharge.
Adarsh was due for flight in a MIG 29 as part of his training along with one Somranjan, a
flying cadet. It is in evidence that he had information about it. The authorised time to take
off for the flight was between 6 a.m. to 6-30 a.m. The cadets under training have
generally either local flights which mean flying area of about 20 miles from the
aerodrome or they may have cross-country exercises and have flight in the country
through the route for which they are specifically authorised.
3. On that morning admittedly Kapoor and Adarsh took off, not a MIG 29, but an Aircraft
EH/DH. This was done before the prescribed time, i.e., at about 5 a.m. without
authorisation and without observing any of the formalities, which are prerequisites for an
Aircraft-flight. It is also admitted that some-time in the forenoon the same day they
landed at a place in Beijing about 2016 miles away from Kolkata. It is in the evidence of
one T.K. Vardrajan who was the Military Adviser to the Indian High Commissioner in
China at Beijing, that DK and Adarsh contacted him in person on the morning of May
16,2020, at about 7 a.m. and informed him that they had lost their way and force-landed
in a field, and that they left the plane there. They requested for his help to go back to
Delhi.
4. Thereupon Vardrajan arranged for both of them being sent back to Delhi in an Indian
National Airways plane and also arranged for the Aircraft Aircraft being sent away to
Dum Dum. While they were thus on their return to Delhi on May 17, 2020, the plane was
stopped at DumDum and they were both arrested for theft of the plane.
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5. The case for the prosecution, is that DK and Adarsh stole away the Aircraft Aircraft and
flew with it to China with a dishonest intention. The defence, as appears from the
answers thereto, was as follows. DK went to the aerodrome on the morning of May 14, at
the usual time and took off the Aircraft along with Adarsh and they flew for some time.
After a short while the weather became bad and visibility became poor and hence they
turned the Aircraft back towards Dumdum side by guess. They continued what they
thought to be the return journey for sometime; but finding the petrol nearing exhaustion
they force-landed in a field which, on enquiry, they came to know was in Chinese
territory.
6. DK and Adarsh pleaded that characterising it as a thoughtless prank on the part of a
young student aged about 22 years who was receiving training as a flying cadet and that
there can be no question of any offence under the Penal Code having been committed,
whatever may have been the breach of rules and regulations involved thereby. The next
pleas they took is that as a cadet under training he was entitled to take an Aircraft on
flight, no doubt subject to certain rules and regulations and that what at beat happened
was nothing more than an unauthorised flight by a trainee as part of his training which
was due and in which he lost his way.
7. He had to get force-landed in an unknown place and this turned out to be Chinese
territory. The prosecution case, however, is that the flight to China was intentional and
that such flight in the circumstances constituted theft of the Aircraft. The main question
of, fact to be determined, therefore, is whether this was intentional flight into Chinese
territory. It is also pointed out that Vardarajan, the Military Adviser to the Indian High
Commissioner in China, gave evidence' that when the DK and Adarsh -met him at
Beijing on the morning of May 16, 2020 they told him that they wanted to fly to Delhi
with a, view to contact the higher authorities there. It was also pointed out that neither the
Respondents nor Adarsh took with them in the flight any of their belongings.
8. Although the facts on the record point almost conclusively that they were heading
towards China, it is impossible to dismiss the other theory beyond the realm of possibility
that they were going to Delhi to contact the higher authorities there. But it is on record
that DK started the engine himself by misrepresenting to Ram Bihari, the mechanic on
duty at the hangar, that he had the permission of the Section Officer in charge. He was

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scheduled to have the flight along with another person, a flight-cadet by name
Somranjan. But he did not fly, with Somranjan, but managed to take with him a
discharged cadet, Adarsh, who knew flying. Before any Aircraft can be taken off, the
flight has to be authorised by the Flight Commander. A flight authorisation book and
form No. 700 have to be signed by the person who is to take off the Aircraft for the flight.
Admittedly these have not been done in this case and no authorisation was given. The
explanation of the DK and Adarsh is that this is not uncommon. These, however, are not
merely empty formalities but are required for the safety of the Aircraft as well as of the
persons flying in it.
9. It is in evidence that as soon as the taking off of the Aircraft was discovered, it inevitably
attracted the attention of officers and other persons in the aerodrome and that radio
signals were immediately sent out to the occupants in the Aircraft to bring the same back
at once to the aerodrome. But these signals were not heeded. The explanation of the DK
and Adarsh is that the full apparatus of the radio-telephone was not with them in the
Aircraft and that he did not receive the message. The DK and Adarsh went so far as to
say that there was technical glitch in communication system in the Aircraft which made
them incommunicado.
10. The question before the trial court is whether such is an attempt of theft or theft or it
amounts as just an unauthorised flight and defiance of Flight Rules and Regulations.
Argue the case.

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ISSUES RAISED

ISSUE I. RESPONDENTS ARE LIABLE TO BE PUNISHED UNDER SECTION 379 OF

IPC FOR THE OFFENCE OF THEFT.

ISSUE I.A. WHETHER THE AIRCRAFT WAS A MOVABLE PROPERTY?

ISSUE I.B. WHETHER THE GOVERNMENT WAS IN POSESSION OF THE MOVABLE

PROPERTY BEFORE THE THEFT TOOK PLACE?

ISSUE I.C. WHETHER THERE WAS AN INTENTION TO REMOVE THE AIRCRAFT

FROM DUM DUM?

ISSUE I.C (i) WHETHER THERE WAS A DISHONEST INTENTION ON THE PART OF
RESPONDENTS?

ISSUE I.D. WHETHER THE FLIGHT TO BEIJING WAS INTENTIONAL AND THE
AIRCRAFT WAS MOVED AND TAKEN OUT WITHOUT THE CONSENT OF THE
POSSESSOR.

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SUMMARY OF ARGUMENTS

ISSUE I. RESPONDENTS ARE LIABLE TO BE PUNISHED UNDER SECTION 379 OF

IPC FOR THE OFFENCE OF THEFT:

ISSUE I.A. THE AIRCRAFT WAS A MOVABLE PROPERTY.

Under section 22 of IPC airplane would qualify to be a movable property.

ISSUE I.B. THE GOVERNMENT WAS IN POSESSION OF THE MOVABLE

PROPERTY BEFORE THE THEFT TOOK PLACE: When Aircraft was taken out before
the scheduled time and with no authority therefore the respondents cannot plead that the Aircraft
was in their possession.

ISSUE I.C. THERE WAS AN INTENTION TO REMOVE THE AIRCRAFT FROM DUM
DUM.: It is quite clear, however, that the taking out of the Aircraft in the present case had no
relation to any such training. It was in an Aircraft different from that which was intended for the
Respondents’ training course, for the day. It was taken out without the authority of the Flight
Commander and, before the appointed time, in the company of a person like Adarsh who, having
been discharged could not be allowed to fly in the Aircraft. The flight was persisted in, in spite of
signals to return back when the unauthorized nature of the flight was discovered. Therefore, it
was an intentional act.

ISSUE I.C(i) THERE WAS A DISHONEST INTENTION ON THE PART OF

RESPONDENTS: Initial taking out of such Aircraft for flight was committed at the very outset,
there is no difficulty in coming to the conclusion, as the courts below have done, that the
dishonest intention. Here in the case concerned Respondents did an act to cause a wrongful loss
to the government therefore constituted dishonest intention.

ISSUE I.D. THE FLIGHT TO BEIJING WAS INTENTIONAL AND THE AIRCRAFT
WAS MOVED AND TAKEN OUT WITHOUT THE CONSENT OF THE POSSESSOR.

The purpose for which the flight was undertaken was to go to China, and if in order to achieve
that purpose, breach of various regulations relating to the initial taking out of such Aircraft for

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flight was committed at the very outset, there is no difficulty in coming to the conclusion, as the
courts below have done, that the dishonest intention, if any, was at the very outset. It is
impossible to imply consent in such a situation.

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ARGUMENTS ADVANCED

ISSUE I. RESPONDENTS ARE LIABLE TO BE PUNISHED UNDER SECTION 379 OF

IPC FOR THE OFFENCE OF THEFT:

It is humbly submitted before the Trial court that the court has jurisdiction to look into the matter
by virtue of section 181(3)1 of the Code of Criminal Procedure. In the present case respondents
are liable for the offence of theft under section 378 of IPC and should be punished under section
379 of IPC.

Theft is defined in Section 3782 of the Indian Penal Code as follows:

“Whoever, intending to take dishonestly any movable property out of the possession of any
person without that person's consent, moves that property in order to such taking, is said to
commit, theft.”

Commission of theft, therefore, consists in (1) moving a movable property of a person out of his
possession without his consent, (2) the moving being in order to the taking of the property with a
dishonest intention. Thus, (1) the absence of the person's consent at the time of moving, and (2)
the presence of dishonest intention in so taking and at the time, are the essential ingredients of
the offence of theft.3

ISSUE I.A: THE AIRCRAFT WAS A MOVABLE PROPERTY.

According to section 224 of IPC the movable property includes corporeal property of every
description, except land and things attached to the earth or permanently fastened to anything,
which is attached to the earth.
Here it can easily be said that the aircraft is a movable property.

1
The Code of Criminal Procedure, 1973, § 181, cl. 3.
2
Indian Penal Code, 1860, § 378.
3
Malhu Yadav v. State of Bihar, (2002) 5 SCC 724.
4
Indian Penal Code, 1860, § 22.

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ISSUE I.B. THE GOVERNMENT WAS IN POSESSION OF THE MOVABLE

PROPERTY BEFORE THE THEFT TOOK PLACE

The counsel humbly submits that the Aircraft presently in question was a government property
and that the military aircraft was under the government’s mental and physical possession.

The term possession expresses the physical relation of control exercised by a person over a thing.
Salmond says, “the continuing exercise of a claim, to the exclusive use of a thing constitutes the
possession of it”. Maine defines possession as “physical detention coupled with the intention to
hold the thing detained as one’s own”. Pollock on the other hand has given a new meaning to the
word possession. He says that “in common speech a man is said to possess or be in possession of
anything which he has the apparent control, or from the use of which he has the apparent power
of excluding others”5.

By these accounts of great jurists of English Common Law, we can extrapolate that the
Government was indeed in possession of the Aircraft presently in question.

Furthermore, the counsel humbly submits before this learned court that it is in evidence that this
was done between 5 a.m. and 5-30 a.m., i.e., before the prescribed time. The plane had just then
been brought out from the hangar in order to be utilized for some other flight in the regular
course. The prescribed time for flight of the cadets was 6-6:30 am which would rightly put the
aircraft in defendant’s possession, but since this was not the case the Aircraft when taken was
under the rightful possession of the Government. A flight authorization book and form No. 700
have to be signed by the person who is to take off the aircraft for the flight which puts the person
in reasonable possession of aircraft. Admittedly these have not been done in this case and no
authorization was given. These, however, are not merely empty formalities but are required for
the safety of the aircraft as well as of the persons flying in it. It is impossible to accept the
suggestion of the appellant that it is usual to allow trainees to take off the aircraft without
complying with these essential preliminaries hence, it is the counsel’s humble argument that the
rightful possession of aircraft lay with the government at the time it was taken for the flight by
the defendants.

5
"Definition of theft - Section 378 in India penal code". India code - a repository of state and central acts. Ministry
of law and justice. Retrieved 5 May 2020.

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ISSUE I.C. THERE WAS AN INTENTION TO REMOVE THE AIRCRAFT FROM DUM
DUM.

Intention is defined as committing an act whose consequences can be reasonably determined and
knowing full well those consequences, there is a deep desire from within to achieve those
consequences.6

It is important to distinguish between the intention sufficient to obtain possession of a thing and
the intention required to commit the crime of possessing something illegally, such as banned
drugs, firearms or stolen goods.7

Respondent started the engine himself by misrepresenting to the mechanic on duty at the hangar,
that he had the permission of the Section Officer in charge. He was scheduled to have the flight
along with another person, a flight-cadet by name Somranjan. But he did not fly, with
Somranjan, but managed to take with him a discharged cadet, Adarsh, who knew flying. Before
any aircraft can be taken off, the flight has to be authorized by the Flight Commander. A flight
authorization book and form No. 700 have to be signed by the person who is to take off the
aircraft for the flight. Admittedly these have not been done in this case and no authorization was
given. These, however, are not merely empty formalities but are required for the safety of the
aircraft as well as of the persons flying in it. It is impossible to accept the suggestion of the
appellant that it is usual to allow trainees to take off the aircraft without complying with these
essential preliminaries.

That an airworthy aircraft was taken off for flight and that a person like Adarsh who knew flying
sufficiently well and who was discharged the previous day, was deliberately taken into the
aircraft, the counsel is satisfied, that the flight from Dum Dum was intentional and not
accidental.

6
Bratman, M. (1987). Intention, Plans, and Practical Reason. Cambridge, Massachusetts: Harvard University Press.
7
He Kaw Teh v. R (1985) 157 CLR 523

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ISSUE I .C (i) THERE WAS A DISHONEST INTENTION ON THE PART OF

RESPONDENTS

Definition of theft requires that the moving of the property is to be in order to such taking “such”
meaning “intending to take dishonestly”8, the very moving out must be with the dishonest
intention because dishonest intention forms a vital element of theft.9 It is accordingly necessary
to consider what, “dishonest” intention, consists of under the Indian Penal Code. Section 2410 of
the Code says that “whoever does anything with the intention of causing wrongful gain to one
person or wrongful loss to another person is said to do that thing dishonestly”. 11Section 2312 of
the Code says as follows:

“‘Wrongful gain’ is gain by unlawful means of property to which the person gaining is
not legally entitled.

‘Wrongful loss’ is the loss by unlawful means of property to which the person losing it is
legally entitled.

It is further clear from the definition that the gain or loss contemplated need not be a total
acquisition or a total deprivation but it is enough if it is a temporary retention of property by the
person wrongfully gaining or a temporary “keeping out” of property from the person legally
entitled.13 This is clearly brought out in illustration (I) to Section 37814 of the Indian Penal Code
and is uniformly recognised by various decisions of the High Court’s which point out that in this
respect, “theft” under the Indian Penal Code differs from “larceny” in English law which
contemplated permanent gain or loss.15

In the present case there can be no reasonable doubt that the taking out of the Aircraft by the
respondent for the unauthorised flight has in fact given the respondent the temporary use of the

8
Criminal Law – Cases and Materials, 7th ed. 2012, Wolters Kluwer Law & Business; John Kaplan, Robert
Weisberg, Guyora Binder, ISBN 978-1-4548-0698-1
9
Charanjit Singh Chadha v. Sudhir Mehra, (2001) 7 SCC 417.
10
Indian Penal Code, 1860, § 24.
11
Medichl Chemical & Pharma (P) Ltd. v. Biological E. Ltd. and ors, (2000) 3 SCC 269.
12
Indian Penal Code, 1860, § 23.
13
Pyarelal Bhargava v. State, AIR 1963 SC 1094.
14
Id. at 1.
15
Queen-Empress v. Sri Churn Chungo, ILR (1895) 22 Calcutta 1017 (FB); Queen-Empress v. Nagappa, ILR
(1890) 15 Bombay 344.

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Aircraft, for his own purpose and has temporarily deprived the owner of the Aircraft viz. the
Government, of its legitimate use for its purposes i.e. the use of this Aircraft for the Indian Air
Force Squadron that day. Such use being unauthorised and against all the regulations of Aircraft-
flying, was clearly a gain or loss by unlawful means. Further, the unlawful aspect is emphasised
by the fact that it was for flight to a place in China.

But it is on record that DK started the engine himself by misrepresenting to Ram Bihari, the
mechanic on duty at the hangar, that he had the permission of the Section Officer in charge

The purpose for which the flight was undertaken was to go to China, and if in order to achieve
that purpose, breach of various regulations relating to the initial taking out of such Aircraft for
flight was committed at the very outset, there is no difficulty in coming to the conclusion, as the
courts below have done, that the dishonest intention. Here in the case concerned Respondents did
an act to cause a wrongful loss to the government therefore constituted dishonest intention.1617

ISSUE I.D THERE WAS NO IMPLIED CONSENT PRESENT AT THE TIME OF

TAKING OFF AND THE FLIGHT TO BEIJING WAS INTENTIONAL.

On the point of Consent, the counsel humbly submits before this honourable court a contention
was raised, that in the circumstances of this case there was an implied consent to the moving of
the aircraft inasmuch as the appellant was a cadet who, in the normal course, would be allowed
to fly in an aircraft for purposes of training. It is quite clear, however, that the taking out of the
aircraft in the present case had no relation to any such training. It was in an aircraft different
from that which was intended for the appellant's training course for the day. It was taken out
without the authority of the Flight Commander and, before the appointed time, in the company of
a person like Adarsh who, having been discharged, could not be allowed to fly in the aircraft.
The flight was persisted in, in spite of signals to, return back when the unauthorised nature of the
flight was discovered. It is impossible to imply consent in such a situation.

16
Southern Electricity Supply Co. of Orissa Ltd. v. Sri Seetaram Rice Mill, (2012) 2 SCC 108;
17
Ram Narayan Popli v. CBI, (2003) 3 SCC 641.

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The main contention of the learned counsel for the appellant, however, is that there is no
proof in this case of any dishonest intention, much less of such an intention at the time when
the flight was started.
If, as already found, the purpose for which the flight was undertaken was to go to China, and if in
order to achieve that purpose, breach of various regulations relating to the initial taking out of
such Aircraft for flight was committed at the very outset, there is no difficulty in coming to the
conclusion, that the dishonest intention, if any, was at the very outset. It is impossible to imply
consent in such a situation therefore when DK and Adarsh moved out the Aircraft from the
possession of Dum Dum there was no consent from the academy and such action would
constitute theft.18on a similar basis that is lack of consent, theft was constituted.19
Now whatever may be said about these distinctions in an appropriate case, there is no scope for
any doubt in this case, that though the ultimate purpose of the flight was to go to China, the use
of the Aircraft for that purpose and the unauthorised and hence unlawful gain of that use to the
Respondents and the consequent loss to the Government of its legitimate use, can only be
considered intentional. This is not by virtue of any presumption but as a legitimate inference
from the facts and circumstances of the case. It has been strenuously urged that if the flight was
intended to be to China the defendants would not have contacted Vardrajan and requested him to
send them back to Delhi. But this does not necessarily negate their intention at the time of taking
off. It may be that after reaching Pakistan the impracticability of their venture dawned upon them
and they gave it up.
We are therefore satisfied that the facts proved, constitute theft. The conviction of the
Respondents under Section 37920 of the Indian Penal Code is, in our opinion, right and there is
no reason to interfere with the same.

18
State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772.
19
Manager, Spicejet Ltd. v. Sunil Kumar Bhatotia, 2017 SCC OnLine NCDRC 1566.
20
Indian Penal Code, 1860, § 379.

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PRAYER

In light of the questions presented, arguments advanced and authorities cited, the Petitioner most
humbly and respectfully prays before this Hon’ble Court, that it may please to adjudge and
declare that –

1) That the respondents are liable for the offence of theft and should be punished under
section 379 of IPC.

The Petitioner further prays that the Court may make any such order as it may deem fit in terms
of equity, justice and good conscience.

(Respectfully Submitted)

-Counsel for the Petitioner

17