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Present: Hutchinson C.J.
ABDUL v. DIAS.
538, P. C., Galle, 48,885.
Theft—Removal of cattle by licensed cattle seizer from private land topolice station—Wrongful loss—Penal Code, s. 368.
Where a licensed cattle seizer untied a bull from the complainant'sgarden and took it to the police station, alleging that he found itloose and trespassing on the road,—
. Held, that he was guilty of theft, as the removal of the bull forthe purpose of causing the owner to pay something which he wasnot legally bound to pay constituted wrongful loss to the owner.
rr’HE accused-appellant, a licensed cattle seizer, untied a hullfrom the complainant’s garden in the night time and took itto the police station, alleging that he found it loose and trespassingon the road. The Magistrate convicted the accused under section368 of the Penal Code.
The accused appealed.
1 (1906) 9 X. L. R. 359.3 (1909) 4 Leader 69.
* (1909) 12 N. L. R. 139.« (1906) 2 A. C. R. 10.
3 (1906) 9 R. L. R. 217.
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Sept.20,1910£ st. V. Jayewardene, for the appellant.—“Intention to take
Abdulv.Dias dishonestly” is a necessary ingredient of the offence of theft. Athing is said to be done dishonestly when it is done with theintention of causing wrongful gain to one person or wrongful loss toanother.
It is clear that the accused did not cause any wrongful gain tohimself. It was held in India that the illegal seizure and im-pounding of cattle, even though it was effected with the maliciousintent of subjecting the owners to expense, inconvenience, andannoyance, was not “ wrongful loss ” to the owners. AradhumMundul v. Myan Khan Takadjeer.1 Removal of cattle with theobject of coercing the owner to pay a sum of money which heowed to the accused was held not to be theft. Patra v. UdoySant:1
Cur. adv. vult.
September 20, 1910. Hutchinson O.J.—
The appellant was convicted of the theft of a bull. He is alicensed cattle seizer. The evidence for the prosecution, which theMagistrate believed, went to show that the appellant untied thebull from the complainant’s garden in the night lime and took itto the police station, alleging that he found it loose and trespassingon the roa'd. The proctor for the accused argued that, evenadmitting the facts to be as stated by the complainant, illegalremoval of cattle by a licensed seizer is not theft, but the Magistrateruled that it is. The Penal Code enacts that: “ Whoever, intendingto take dishonestly any movable property out of the possession ofany person without that person’s consent, moves that property inorder to such taking, is said to commit 4 theft ’ ; and the meaningof44 dishonestly ” is stated in section 22 : 44 Whoever docs anythingwith the intention of causing wrongful gain to one person, or wrong-ful loss to another person, is said to do that thing 4 dishonestly.’ ”And by section 21 44 4 wrongful gain ’ is gain by unlawful means ofproperty to which the person gaining is not legally entitled. ” Thisman moved the bull, intending to take it out of the owner’spossession without his consent; the question is, whether he did it“ dishonestly” within the meaning of the Code. He intended tocause loss to the owner, who, if the accused could satisfy the Courtor Village Tribunal that the bull was trespassing, would have topay something under the Cattle Trespass Ordinance in order to gethis bull back ; and at first sight that would seem to be wrongfulloss. But it is contended that it is not “ wrongful loss ” as definedby section 21 ; and two decisions of Indian Courts are quoted insupport of that view. In the case of Myan Khan Takadjeer1 theaccused illegally seized cattle while grazing on fallow land and,
1 (1875) U W. R. Cr. 7.2 (1895) Z2 Cal. €99.
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instead of taking them to the nearest pound, drove them twelve Sept.2Q,i9ioor fourteen miles to a pound in the next district; the Magistrate Hutchinsonconsidered that wrongful loss was intended, because the act was C-J.done with the malicious intent of subjecting the owners to additional Abdul v.Diasexpense, and he convicted the accused of theft under section 379of the Indian Penal Code. The High Court quashed the conviction,holding that the wrongful loss referred to in section 24, which is inthe same terms as section 22 of our Code, referred to the thingdishonestly taken, i.e., to the animals ; they said that the lastwords of section 23 (our section 21) : “to which the person losing itis legally entitled,” show that that is what is meant. In the caseof P. K. Patra v. Vdoy Sant1 the accused, with a view to coerce thecomplainant to pay a sum which he owed to the accused,' removedsome cattle from the complainant’s homestead. His intention wasto induce the complainant to pay him a debt which was legallydue, and it seems to me difficult to say that he intended to causewrongful loss to the complainant or wrongful gain to himself.
The Court held that it was not a case of theft, but not on thatground ; they thought that to gain property by unlawful meansmeant to gain the thing used for the use of the gainer. But theyalso referred to illustration (/) to section 378, which is the sameillustration to our section 366 : “ A takes an article belonging toZ out of Z’s possession, without Z’s consent, with the intention ofkeeping it until he obtains money from Z as a reward for its resto-ration. Here A takes dishonestly. A has therefore committedtheft ” ; and they said the effect of that is that “ it is theft if .a persontakes the property of another for the purpose of extorting from theowner, in exchange for the thing taken, something which the takerhas no right to claim.” It seems to me probable that their decisionwould have been the other way if the fact had been that the accusedhad taken the cattle for the purpose of causing the owner to paysomething which he was not legally bound to pay. In the last-mentioned case the Court discussed several cases decided in India.
One was that in 24 W. R. ; another, the 9th, was that of Paryay Raiv. Argu Mian,'1 in which the accused had loosened the complainant’scattle at night and driven them to the pound with the object ofsharing with the pound owner the fees to be paid for their release ;and the High Court held that that was theft. In my opinionillustration (/) to section 366 shows that the act of this appellantwas theft, and the conviction was right. The appeal is dimissed.
1 (1895) 22 Cal. 669.
1 (1894) 22 Cal. 139.