1. This is an application for revision of an order of the Additional Sessions Judge of Moradabad, confirming an order of a Magistrate of the first class whereby the applicant was convicted of an offence under Section 379, Indian Penal Code, and sentenced to pay a fine.
2. The facts found are that the applicant snatched some books from a boy as he was coming out of school and told the boy that he would return the books if he came to his house. Both the Judge and the Magistrate have found that the object of the applicant was to get the boy into his house and commit an unnatural offence upon him.
3. The question for decision is whether the applicant committed theft. There seems no doubt that on the facts stated the applicant could not be convicted of larceny under the common law. I mention this because my attention has been called to an old English case, in which, on facts not unlike those of the present case, the accused was acquitted. In that case the prisoner took from a house in the night a young girl's bonnet and some other articles of her dress and carried them to a hay-mow where he had twice had connection with her. The jury thought that he took them in order that the girl might again go to the mow, and he might have another opportunity of soliciting her to repeat the connection. It was held that the prisoner had not committed larceny. R. v. Dickinson (1820) R. and R. In order to constitute larceny there must be an intention to take entire dominion over the property. i.e., the taker must intend to appropriate the property to his own use.
4. Under the Indian Penal Code '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.' The question is whether the applicant look the books 'dishonestly' --all the other ingredients of theft are present. 'Dishonestly' is thus defined in Section 24, Indian Penal Code:--'whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another, is said to do that thing dishonestly.' In Section 23 wrongful gain and wrongful loss are defined thus:-- 'Wrongful gain is the gain by unlawful means of property to which the person gaining it is not legally entitled ; and wrongful loss is the loss by unlawful means of property to which the person losing it is legally entitled.' It has been held in several cases that theft may be committed even where there is no intention to deprive the owner of t e property permanently. A familiar instance is that of a person who seizes the property of another in order to compel that other to pay a sum of money to which the former hat no claim ; Prosonno Kumar Palra v. Udoy Sant (1895) I.L.R. 22 Calc. 669 There is a difference of opinion as to whether it is theft to take the property of another in order to compel payment of a just debt--Queen-Empress v. Ajhu Muhammad Yusuf (1896) I.L.R. 18 All. 88 but it has never been suggested that there can be no theft unless there is an intention to deprive the owner or the property permanently. In the present case there was wrongful gain to the applicant and 'wrongful loss' to the school-boy within the definition of those terms in the Code. I must, therefore, hold that the applicant took the books dishonestly and that he was rightly convicted of theft under Section 379, Indian Penal Code. This application is dismissed.