Jaganmohan Reddy, J.
1. The facts of this case are somewhat interesting in that the accused one Dr. P. Ramachandra Reddy of Nellore took part in some food prices agitation and was rounded up along with, others on 31-12-1958 and was taken away in a Police lorry to Gudur. At about 3 p.m., when the Police lorry reached the Police Station at Gudur which is situated in Taluk Office compound, the accused, it is alleged, jumped out of the lorry, took a cycle which was near by and went away. The cycle belonged to a Police Constable, Ghouse Moinuddin of Gudur town, and it is said, that his wife lent it to another person Shiek Mastan Saheb for changing some yellow coins at the Treasury. The cycle was later found by P.W. 8 at the house of Dr. Jai Ram to which place the accused had gone.
2. The learned Magistrate perused the documents under Section 173 Cr. P. C. as required under the amended Section 251-A and came to the conclusion that 'the intention of the accused at the time of taking the cycle was not dishonest' and, therefore, he discharged the accused under Section 251-A(2). Against that order the State filed a revision beforethe Sessions Judge, who directed the Judicial Dist. Magistrate, Nellore to hold further enquiry either by himself or by any magistrate subordinate to him. The reasons for arriving at that conclusion appear to be that, the lower Court should not have held that the charge was groundless because the respondent having stated the peculiar circumstances under which he took away the cycle, it was for him to prove the circumstances, and that without recording the evidence the lower Court should not have considered that the statement given by the respondent was absolute truth.
He however observed that the ruling of the Chief Court, Oudh in Rameswar Singh v. Emperor, 37 Cri. LJ 456 cited by the learned Magistrate,was not applicable to the case on hand, because, in that case it was proved to the satisfaction of the Court that the accused had no intention to cause wrongful gain to himself and the owner of the property had not complained that any wrongful loss was caused to him.
3. It was contended by the learned Advocatefor the revision petitioner that the essential ingredient to constitute an offence under Section 379 I. P. C. viz., 'dishonest intention' has not been established and that the Sessions Judge was wrong in directing an enquiry merely on the ground that no evidence was recorded. He further contends that under Section 251-A before a charge is framed, there is no necessity to record any evidence. Under Sub-Section (2) of Section 251-A
'if upon consideration of all the documents referred to in Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him.'
But, under Sub-section (3)
'if, upon such documents being considered, such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which in his opinion, could be adequately punished by him, he should frame in writing a charge against the accused.'
It is only if the charge is framed and the accused refuses to plead or claims to be tried that the Magistrate has to fix a date for the examination of witnesses under Sub-section (6). The contention of the learned Advocate that the stage of recording evidence had not yet been reached is, in my view, warranted by the provisions of Section 251-A.
This is also borne out by a decision of the Bench of this Court in P. Veeraraghavulu v. State, AIR 1958 Andh Pra 301 where Basi Reddy, J. heldthat
'Under Section 251-A Cr.P.C. the classification is between warrant cases instituted on police reports on the one hand and warrant cases instituted on complaints on the other. In the one category of cases there is a preliminary investigation by a responsible police officer and for the limited purpose of framing the charge, the Magistrate is authorised to act on the documents furnished by the investigating police, and the examination of witnesses at that stage is done away with. In the other class of cases, there is no such previous investigation. The Magistrate does not have before him the statements of witnesses or the documents on which the prosecution may rely.'
4. The learned Sessions Judge, therefore, was not right in saving that the Magistrate could 'not discharge the accused without recording evidence. The Magistrate examined the documents and also examined the accused and heard the parties, viz., the prosecution and the defence; and while he was of the view that the examination of the documents had amply showed that the accused, had taken away the cycle as alleged, which fact was not denied by the accused, the prosecution by merely proving that fact had not proved the dishonest intention which is a necessary ingredient for the offence of theft. The statement of the accused that he merely took the cycle to have a glass of water could be taken into consideration, and, in the circumstances, there was nothing to show from the record that the accused had any other intention.
Dr. Jairam to whose house the accused had gone to take water evidently was not examined by the prosecution and if examined his statement under Section 162 was not before the Court. The prosecution could have examined that witness and filed his statement if it was intending to show that the statement of the accused was wrong and that he had a dishonest intention, for, at no time could the onus of proving all the ingredients of the offence be shifted on to the accused.
5. The offence of theft in Section 378 is defined as 'whoever, intending to take dishonestly any movable property out of the possession of any person without the person's consent, moves that property in order to such taking, is said to commit theft.' Sections 24 and 23 I.P.C. define 'dishonestly' and 'wrongful gain and wrongful loss.' They are as follows :
24. 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'.
23. '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.
A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to loss wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.
6. Reading these definitions into Section 379 I.P.C. it appears that while the accused took the cycle in question without die consent of the owner and has deprived him of the use of it, that by itself will not he sufficient to convict him of theft. The question is whether he has intended to take it dishonestly, which involves the twin ingredients of 'intention' and 'dishonesty'. 'Dishonesty', as may be seen from the definition, again involves 'intention', that is, the doing of a thing with an intention to cause wrongful gain or wrongful loss. The mete fact that a person may have caused wrongful gain or wrongful loss within the meaning of Section 23, such as in this case, the mere taking of bicycle to which the accused had no right, may be wrongful loss, it has still to he established that the accused had done the thing with the intention to cause wrongful gain or wrongful loss.
Does the mere fact that a person takes a thing out of the possession of another, in circumstances which raise a presumption that he is depriving the owner of it and causing him wrongful loss, impute to him an intention to dishonestly cause wrongful loss? In other words, are intention and knowledge of likelihood synonymous? A man while doing a thing might not intend to do anything wrong, but knowledge may be imputed to him because in the circumstances he ought to have known, that the doing of the thing was wrong; in other words, by imputing to him the fiction that a man must be deemed to intend the consequence of his act, his action becomes blameworthy. Such knowledge of the likelihood, based as it is on a fiction, does notin all cases establish an intention to do a particular act in that way, for, it is the act and not the presumed intention that is the determining factor in criminal law, where intention is made one of the ingredients of an offence. A Full Bench decision of the Madras High Court in Vullappa v. Bheema Row, ILR 41 Mad 156: (AIR 1918 Mad 136 (2)) while considering the question of intention made a difference between 'intention' and 'knowledge of likelihood'.
There, a man, who forced his way into a HeadMaster's house against his will in order to find outwhether some stolen property which his son hadsaid he had given to the Head Master was hidden inthat house, was held not to have had the intentionto cause annoyance. In that case, a Bench consisting of Abdur Rahim and Oldfield JJ. differed.Abdur Rahim J. held that
'the accused when insisting on searching the house had a known intent and that was to recover the jewels. It may be that at the same time they did not mind or care that their act would annoy the complainant; but they certainly did not enter into the complainant's house or remain there with the object of annoying the complainant. If it was found or could fairly be inferred that the accusedhad in addition to their intention to recover the jewels, a further intent, namely, to insult or annoy the complainant, Section 441 Indian Penal Code, would apply.'
Oldfield, J. on the other hand thought that it is only necessary to compare Sections 299 and 304(3) and (4) in order to see that knowledge of a probability is treated as equivalent to intention, when the probability is of more than a particular strength, that is, when the consequence, on which the chara-cter of the act in question depends, is known to be that, which will follow in the natural course. In view of the conflict of decisions in this behalf, the matter was referred to a Full Bench where Wallis C.J. observed that
'a person who enters into property in possession of another with an intent other than to intimidate, insult or annoy him or to commit any offence, but with the knowledge that his act is likely or certain to cause annoyance or insult to the person in possession, is not guilty of an offence under Section 448. The word 'intent' in Section 441 is distinct from the 'knowledge of likelihood' and the legislature intended that a trespass with a specified intent alone should be made punishable and not with a knowledge of its consequences.'
Kumaraswamy Sastry, J. also expressed a similar view when he observed that
'the rule of law that a man must be taken to intend natural consequences of his act is really a rule of evidence. The Penal Code takes notice of actual and not presumed intention in determining criminality, though, in determining what a man's actual intention was, Courts can raise all fair inferences that can he drawn from his act, and in order to arrive at a conclusion may hold that when a man uses means which at the time he used them he knew or had reason to believe to be likely to cause a result, his intention was to cause that result'.
Ayling, J. differed from these views. He held that
'the mere knowledge that the trespass is likely to cause insult or annoyance to the owner of the property does not amount to an intent to insult or annoy within the meaning of Section 441. But where the trespasser knows that his trespass is practically certain, in the natural course of events, to cause insult or annoyance to the owner of the property, it is open to the Court to infer an intent to insult or annoy. It is a question of fact whether this presumption of intent is displaced by proof of any independent object of the trespass'.
7. Having regard to the majority decision of the Full Bench, where specifically a section makes 'intention' one of the ingredients of the offence, that ingredient would not be satisfied by the application of the maxim that everyone must be taken to intend the natural consequences of his act. The trainers of the Penal Code when they wanted to make that maxim one of the ingredients of an offence did so by incorporating it in the definition of the word 'Voluntarily' in Section 39. The maxim is thus made applicable in several sections wherever the word is used.
8. In the instant case, the Magistrate below relied on a decision of Oudh Chief Court in 37 Cri. LJ 456. There also the facts were similar, viz., that the accused had taken away the cycle of a Vakil, Mahabir Prasad which had been left in the portico of the District Judge's Court. The cycle was subsequently found to have been left in some place by the applicant in the 'gari khana' of the Rana of Thangaon. When the applicant was prosecuted, he was convicted; but, since the Special Magistrate thought that it was a technical one, he merely fined him Rs. 350/-. In appeal the learned Additional Sessions Judge held that the offence was technical one and that the accused 'had no criminal intent or ulterior motive in taking away the cycle' and he therefore reduced the fine from Rs. 350/- to one of Rs. 100/-. In revision, the Oudh Court held
'the important element of criminal intention was found by the lower appellate Court as a fact to be completely absent. If the appellant, Rameshwar Singh, had no criminal intent in taking away the cycle of Mahabir Prasad and if he did not take it dishonestly within the meaning of the term as defined in the Indian Penal Code, then his taking away of the cycle does not fall within the definition of theft'.
There it was held to have been proved to the satisfaction of the lower appellate Court that the applicant did not intend to cause wrongful gain to himself, and the temporary loss of the use of the cycle of Mahabir Prasad was such a loss about which even Mababir Prasad himself had not complained. The learned judge observed that in the circumstances, it seemed to him that the stigma of theft could not be imputed to a respectable person of the position of the applicant.
9. In this case also the Magistrate took the statement of the accused into consideration, which he was bound to do under the provisions of Section 251-A, and having regard to the examination of the documents which proved nothing more than that the cycle was taken away, the Magistrate came to the conclusion that the necessary ingredient of 'dishonest intention' was not present with the accused. The Sessions Judge had not come to a different conclusion, nor did he show that the conclusion is perverse on the record. His reasoning, as I have already observed is that the Magistrate could not have discharged the accused without recording evidence of the witnesses. This is a conclusion which is not warranted by the provisions of the Criminal Procedure Code.
I think the Magistrate was perfectly justified in discharging the accused if he was satisfied that dishonest intention was not established. It appears to me that the main intention of the accused, if at all, was to make good his escape and he could have hardly contemplated the commission of the theft. In this case, as in the Oudh case, the owner of the cycle did not complain of any loss to him. In any case, the question of fraudulent and dishonest intention is a question of fact and it can hardly be said in the circumstances that the accused had the dishonest intention to commit theft.
10. In this view of the matter, this revision is allowed and the order of the Sessions Judge is set aside and that of the Magistrate confirmed. The accused is discharged.