Report No. 42

17.21. Section 39.-Amendment proposed.-

Section 397 provides a minimum punishment of seven years' imprisonment if, while committing robbery or dacoity, the offender 'uses any deadly weapon' or causes grievous hurt to any person.

There used to be a controversy previously as to whether a person, other than the offender who carried the deadly weapon, fell within this section. The question is now answered in the negative by almost all High Courts, and no clarification is needed on this point.

As to the expression 'uses' in section 397, it is now settled1 that the actual use of a deadly weapon is not necessary, and it is enough if the offender carries, brandishes or exhibits such a weapon at the time of committing robbery or dacoity. We think that it is unnecessary to provide for a minimum punishment of seven years for merely carrying a deadly weapon. Even when the weapon is used against the victims, but it cannot be said that it amounted to an attempt to cause grievous hurt, there is little justification for bringing the case under section 397. We propose, therefore, that the words "uses any deadly weapon, or" should be omitted.

1. P.P. v. Nagappau, AIR 1941 Mad 718 (use may be against person not robbed); Nanhe v. Emp., AIR 1931 All 363 (367) (carrying is enough, as it inspires fear): Govind Dipaji, v. State, AIR 1956 Born 353; Nagar Singh v. Emp., AIR 1933 Lah 35; Thevar Serval (in re:) , AIR 1933 Mad 477.

17.22. Section 39.-Amendment proposed.-

In view of the omission proposed above in section 397, it will be necessary to extend section 398 to cases of commission of robbery or dacoity, besides cases of attempt to which the section at present applies. The minimum punishment for the offence, however, need not be as heavy as seven years, and may be reduced to three years.

17.23. Section 39.-Amendments proposed.-

It was suggested that section 399 which punishes preparation to commit dacoity should be amended to cover robberies also. We do not think this would be desirable. It will be noticed that under section 402 assembling for the purpose of committing a dacoity, which undoubtedly is a preparatory act, is punishable with imprisonment upto seven years only. At times, it is difficult to decide whether a case falls under section 399 or 402. In order to avoid this difficulty, and also in view of the fact that it is only a preparatory act which is being punished under section 399, the maximum under section 399 may be the same as the maximum under section 402, viz., seven years.

17.24. Sections 400 and 401.-

One of two formal amendments are required in sections 400 and 401. The words "at any time after the passing of this Act" and the reference to "thugs" should both be omitted.

17.25. Section 402 to cover robberies also.-

We propose that section 402 should be extended to cover the cases where three or four persons assemble for the purpose of committing a robbery.

17.26. Sections 397 to 40.-revision proposed.-

In the light of the above discussion, sections 397 to 402 may be revised as follows.-

"397. Robbery or dacoity, with attempt to cause death or grievous hurt.- If at the time of committing robbery or dacoity, the offender causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.

398. Robbery or dacoity, when armed with deadly weapon.- If, at the time of committing or attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than three years.

399. Making preparation to commit dacoity.- Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.

400.Belonging to gang of dacoits.- Whoever belongs to a gang of persons associated for the purpose of habitually committing dacoity, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

401. Belonging to gang of thieves or robbers.- Whoever belongs to any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery, and not being a gang of dacoits, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine.

402. Assembling for purpose of committing robbery or dacoity.- Whoever

(a) is one of three of four persons, assembled for the purpose of committing robbery, or

(b) is one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."

Criminal Misappropriation

17.27. Section 40.-Explanation 2 to be revised.-

Section 403 punishes a person who "dishonestly misappropriates or converts to his own use any movable property". To this rather brief description of the offence, two Explanations are added. The first merely says that a temporary misappropriation is also misappropriation. The second Explanation is lengthy, and attempts to express three ideas. First, a person who finds property which is not then in anybody's possession, does not act dishonestly if he takes it in order to keep it for the owner with the idea of restoring it to him.

Secondly, if he knows the owner, or can reasonably find out who the owner, is, and in spite of that, he converts the property to his own use without attempting to get into touch with the owner and informing him, then he acts dishonestly. Thirdly, it is not necessary that the finder should know the identity of the owner; and so long as he does not honestly believe that the owner cannot be found, his conduct is dishonest.

We think that these ideas could be expressed more briefly, and perhaps more clearly, than the existing Explanation, which seems to us unnecessarily lengthy and still somewhat incomplete. It may read.-

"Explanation 2.- It is not dishonest misappropriation for a person who finds property not in the possession of any other person, to take it for the purpose of protecting it for, or of restoring it to the owner, but it is such misappropriation if he appropriates it to his own use.-

(a) when he knows, or has the means of discovering the owner, or

(b) when he does not in good faith believe that the owner cannot be discovered, or

(c) before he has used reasonable means to discover and give notice to the owner, and allowed a reasonable time for the owner to claim the property."

17.28. Partners and illustration (c).-

Illustration (c) to section 403 indicates when one of two joint owners could be regarded as committing misappropriation of a chattel belonging to both and in the possession of the other. It says, A and B being joint owners of a horse, A takes the horse out of B's possession, intending to use it. Here as A has a right to use the horse, he does not dishonestly misappropriate it. But if A sells the horse and appropriates the whole proceeds to his use, he is guilty of an offence under this section."

We should have thought that if A and B were partners and the horse partnership property, and if A sold the horse and appropriated the proceeds to his own use, the legal situation would be the same and A would be guilty of the offence. Under the Partnership Act1, "subject to contract between the partners, the property of the firm shall be held and used by the partners exclusively for the purposes of the business". The Supreme Court has however held.-

"It is obvious that an owner of property in whichever way he uses his property and with whatever intention will not be liable for misappropriation, and that would be so even if he is not the exclusive owner thereof. As already stated, a partner has undefined ownership along with the other partners over all the assets of the partnership. If he chooses to use any of them for his own purposes, he may be accountable to the other partners. But he does not thereby commit any misappropriation."

1. Section 15, Indian Partnership, Act, 1932.

2. Velji v. Raghavji v. State, (1965) 2 SCR 429 (434).

17.29. Additional illustration proposed.-

If this general statement of law were to be applied to every case, the result would, in our opinion, be unfortunate, and dishonest partners, dishonestly dealing with partnership property, would be immune from punishment. We are confident that the Supreme Court did not intend such a consequence. To remove the possibility of any misunderstanding on the subject, we suggest that another illustration, expressly dealing with partners, should be added.

While making the position clear, the illustration will exclude from penal liability cases where the partner has a right to use the property. For example, the partnership agreement may authorise the partner to appropriate the proceeds but with an obligation to make adjustment at the end of a specified period. Partnership agreement of this type, under which the other partners are only "sleeping" partners, are not uncommon.

We accordingly propose that the following illustration be added after illustration (c).-

"(d) A and B are partners in a firm which carries on the business of jewellers. A takes a jewel which is the property of the firm, intending to show it to a prospective customer. Here, as A has a right to do so, A does not dishonestly misappropriate. But if A sells the jewel and appropriates the whole proceeds to his own use, without authority to do so under the Partnership agreement, he is guilty of an offence under this section."

17.30. Section 40.-amendment recommended.-

In contrast with section 403 which specifically refers to "movable property", section 404 refers to dishonest misappropriation or conversion to own use of "property" in the possession of a person at the time of his death. The omission of the word "movable" is clearly deliberate, and the Supreme Court has said so.3 We think this view of the matter will be brought out by inserting the word "any" after the words "to his own use", and before the word "property"

Criminal breach of trust

1. R.K. Dalmia v. Delhi Administration, (1963) 1 SCR 253: AIR 1962 SC 1821.

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