HABIT HABITUALIY 3217

Scc. 4001

addicted to crimc is onc who is a criminal by

A habitual offender or a person habitually
Rcasonable bolicf of the Police Officur
habit or by disposition formed by repetition of crimes.
addictod to crmc is sufficicnt to
or is a person habitually
that the suspoct is a habitual offender
not sufficicnt. Thc belicf mustbe
action under 23 4(3(b) and 23.9(2). Mere belicfis
Rr.
justify reasonable grounds.
reasonablc. lt must be based on

wcre prcvcnted from pcrvasive

under Section 110, Cr. P.C.
Unless the preventive power be cast
and intorpretative strictncss, many a poor man, may
misuse by zealous judicial vigilance such frightening cxpressions as
the label of "habitual" or by using
into prison by sticking Section 110 cannot be permitted
"dangcrous" and hazardous " to the community.
desperate". homeless and the have-nots as
it did when undcr British
the
in our free Republic to pick up That expressions like "by
to be is not a crime in this country.
poor
subjection because today cannot be flung in the face
of a man
"dangerous", "hazardous
habit. "habitual", *desperate , on specificity of
facts and be satisfied that
one

The Court must insist

with laxity of semantics. convincing enough to
consistent course of conduct
swallow does not make a
summer and a
the counter-
confirmed habit, which is second nature,
draw the ngorous
inference that by
he is not kept captive.
Is sure to commit the
offences mentioned if desperate
desperate is to affix
petitioner a

itself dangerous; to call a

hazard unless
man

To call a man dangerous is the community, is itselfa judicial

hazardous to
a person as
adjective: to stigmatise
carrying is abundantly available
credence
Prevention of Anti-
compulsive testimony the Gujarat
2(c) of
within the definition of Sec.
member
himself or as a
that the person eitherby
To bring a person
of
1985 it must be shown the commission
Social Activities Act, attermpts to commit or abets IP.Code or any of
commits or XXII of the
leader of a gang habitually or Chap.
of or a
XVI or Chap. XVI case registered in
Crime No.
under Chap.
offences punishable the Arms Act.
In the V of Sec. 307,
under Chap. offences under
offences punishable to have committed of
the
Station, the detenu is said under the provisions
Police besides
2/88 in Kalupur 25 of the Ams Act under Sec.
120-B

of the L.P. Code and Sec. XVI, the offences

120-B, 212 under Chap. two offences
Though Sec. 307 falls Therefore, these
various other
Acts.
I.P. Code, respectively. Activities Act, 1985
Chap. VI and XI ofthe of Anti-Social
Act is
and 212 fall under the Gujarat Prevention
under Chap.
V of the said
covered under
Sec. 2(c) of Act falling a pcrson
are not
under Sec. 25
of the Arms requires is that to bring
registered the section
what to commit
The offence clause. But attempting
definition committing or
within the said is habitually the registration
included that he instant case,
be shown In the
and Section
definition, it
must therein.
Within that offences
enumerated
of the I.P. Code
307
c o m m i s s i o n of
incident
of Section this solitary
or abetting the the provisions under Therefore,
clausc.
mentioned or attempting
o n e case
is said
definition committing
ofonly Ams Act falling within the the detenue w a s habitually allegations
25 of the s u f f i c i e n t to
conclude that and vague
The general c o m m u n a l rights an
be
Would hardly
the
ofoffences. active part in
commission
of Abd
or abetting detenue w a s
taking m e m b e r of
the gang
to commit the a thcreo
that
of t e r r o r being
case
of
detention
registration
ofany
the grounds atmospherc or the Indian
Chapters of
an instance
to spread specific
absencc of any
conspiracy above three
nto
Shaikh in
the of the R (SC)
312.
under any 1966 Cr. App.
Abdul
Wahab falling Cr. LJ 1486:
Cr. LR (SC) 94:
as offences 1966
SC 1766: 337: 1981
be
construed
AIR 1966 546: 1981 Cr. LJ
cannot
Superintendent ofPolice,
674: 1981
S C (Cr.)
vs. SC
Ram
Sharma
AIR 1981
34 Dhanji r h a r i

vs.
State of Kerala,
Ann B (SC) 15.
 LAW OF CRIMES &CRIMINOLOGY

Penal Code or Chap V of the Arms Act cnumcratcd under Scc. 2(c) of tlhe ta

the detemie as a dangcrous pcrson "

9%5 Act )
characteIse a
t
A is said to be
Thecxpesson "habitually IS Very ignificant. person be a
habitua
who b foree of habit or inward disposition is accustomcd to commit crimcs. It itnl
of such crimes repcatedly or persistently and prima facic therc should be . crur
Commssi
cmmissiOn of those oftences.

In the instant casc except Crime No. 96/90 there is no other casc pending
e cims which are referred to in the grounds ended in acquittal and the definitioncand the otiu
porson in Sec. 2(c) of the Gujarat Prevention of Anti-Social Act dang
ctivities Act, 1985
nclude casos under the Prohibition Act. Therefore, the detenu is not a habitual offCS do
tual offender to
to come within the meaning of "dangerous person"3 so a

The expression "habit" or "habitual" has not been defined under the Act T
he word
"habitually" does not rcfer to the frequency of the occasjons but to the invariability of anr
and the habit has to be proved by totality of facts. It, therefore, follows that
the complicir
person in an isolated offence is neither evidence nor a material of any
help to conclude 7
particular person is a "dangerous person" unless there is material suggesting his comnlicit. hat a
such cases which lead to a reasonable conclusion that the
person is a habitual criminal, In or
to bring a person within the
expression "dangerous person' as defined in CI. (c) of Sec. 2 oforderteihe
Gujarat Prevention of Anti-Social Activities Act, 1985, there should be
indicate that such person is habitually positive material tn
committing
or attempting
abetting th to commit or
commission of offences which are punishable under
under Chap. V, Arms Act and that a
Chap. XVI or Chap. XVII,
IP. Code or
single or isolated act falling under Chap. XVI or Chap.
XVII, LP. Code or Chap. V, Arms Act cannot be characterised as a
Sec. 2(c) of the Act.38 habitual act referred to in

The determination of whether is

one a habitual criminal is essentially
determination of guilt on the underlying substantive offence39 independent of the
Habitual criminal issue is distinct one but
offcncc. It may may be combined with the trial of a substanti*
appropriately the subject of separate determination.40
be
The habit could be
proved by an aggregate of acts.4
The evidence that the accused
IS not sufficient42 habitually commits theft as (as distinguished from daco
7. Habitual offender & Section 110
Cr. P.C.
Section 110 Cr. P.C. is
preventive while Section 400 & 401 I.P.C. are punitive.
asndmiya
2 SC 323.
alias
Chhava Ahmedmitya Shaik vs. Police 989)

37.
Commissioner, Ahmedabad, AIR 1989 SC I

Ayub alias Pappukhan

2: 1990 Cr. LJ 2232: Nawabkhan Pathan vs. S.N.
Sinha, AIR 1990 SC
SC 2069: 1990 SCC (Cr.) 664
0 ) 4SCC
(1990) 3 SCR 927: JT (1990) 3 SC (SC)361
ustakmiya
39.
Oyler Jabbarmiya Shaikh
vs. vs. M.M.
Mehta, Commissioner
530: 1990 Cr. LR
(SC) 605: p. R
1990.5)3 SCC
40. Boles,
368 US 448:
82 S C. 501. of Police, 1995 SCC (C.)
41.
Oyler vs. Boles,
368 US 448: **:
2
(1910) 11 Cri. I.J 364 82 S C1. 501.
AlR 1923
Bom. 71 (365): 1910 Pun. LR 11
(72): 24 Cri. LJ (DB).
867.
Sec. 400 HABITUALOFFENDER 2.1

Where association for the purposc of habitually committing dacoity had not beun nade
out. the mere of the accuscd
fact that some had becn prcviously convictcd of dacoity or theft or
under Scction | 10 of the Criminal Procudur
had becn bound drown to be of good bchaviour
Code. was of no conscqucncc.4"
with thc incidcnt of giving shclter to
Where there is material to connect thc pctitioner
such person for rcmand of the pctitioncr can
wanted dacoits the report of police official against
at the time report was made4
not be stated to be false to his knowledge

gang of persons
toa associated
The accuscd charged under this section with belonging
were
The prosecution sought to prove against some
for the purpose of habitually committing dacoity.
convicted of theft or had been ordered to give
of the accused that they had been previously
thieves. It held that evidencc
sccurity for good behaviour on the ground being habitual
of was

under Section 14 of the Evidence Act.

previous conviction of bad livelihood was not admissible
because the offence for which the accused were being
tried was the particular one of belonging
to a gang of dacoits and simple theft or bad livelihood,
in which the order for giving security was
was not evidence indicating
an
based on evidence that the accused habitually committed theft,
intention to commit the particular crime with which the accused were charged."

Section 110 has

Proceedings under Section 110 are not punitive but precautionary only.
who are habitual criminals and taking their
been enacted to keep under control such persons
are clearly intended to
curb the dangerous
habit with them wherever they go. The provisions
and to secure the interest of community
from injury at their hands.
activity of harden criminals
and the court is expected to follow the requisite
The proceedings are judicial and not executive
of those to belong
While Section 400 of this code provides punishment
procedure strictly.45 and whose business is the
of persons who make it their business to commit dacoity
gang
Association for the habitual pursuit of dacoity
is the gist of the
habitual commission of dacoity. commission of a
conviction can be had even where no actual
offence under this section. A evidence must be-
is proved.45 In order to sustain a conviction under this section,
dacoity and such
was of persons, that they were associated together
forthcoming that there a gang
and robbery.
association was for the purpose of habitually committing dacoity
former i
Cr. P.C. is that under the
between Section 400 and Section 110
Thedifference associated together forming a gang
for the
that several persons have
iS necessary to prove
Whereas under Section 110 Cr.
P.C. evidence of strong suspicior
purpose of commiting dacoity. such criminal act1vities is enougk
persons are engaged in
and evil repute that such a person or Section 40
behaviour. The requirement of
bound over to be of good
to render them liable to be several persons have
assoCiated togethe
to prove that
is that under the
former it is necessary materialis=
and their activitics have
thefts or robbery,
commiting
torming a gang for the purpose of offences.
into robberies and thefts
or attempts at such

39.
Kader Sundar (1911) 16 (1912) 13 Cri. LJ
CWN 69:
43. Crimes 445.
vs. Nagendra
Nath Das, 1985 (1)
44. Biraja Prasad Roy Bom. 958.
Mahomed (1921) 25
Bom. LR 214: 46
45. Haji Sher 1995 Cri. LJ 3547.
Debu alias Debabrata Tripathy vs. State,
46. 13 Cri. LJ 39.
Khader Sundar (1911)
16 CWN 69: (1912) Suresh Chandra Banerjee AIR 1928 Ca
47 26 Cri. LJ 1412 (Oudh);
48 Murli Brahman AIR 1926 Oudh 374: (1925)
(19281 22 Cri. LJ 705 (Cal).
 220 LAWOFCRIMES &CRIMINOI OGY
8. Previous Conviction
Pre ous conviction of the accuscd for dacoity along with other
ther .
aamst him under planation 2 to Section 14 dacoitiCs
of the Indian Evidencc Act. But s is
the conviction of the accuscd must be
judgcd cxclusivcly by rcfercncc to the e the relevant
by the prosceution at the trial.49

Under Scction 75, 1.P. Code, the

videncepropricty
adduccd
merc fact that
pcrson has been convictod ..
a
Nll or Chap. XVIl of the Code is enough
subjectto
him to enhanced
subscquent offence committed by him even though the sentence punishment in hap
might cither have bccn remitted or he following his carlio4sC of a
Lnder Section 310, Cr. P. Code also it may have been released after
his onviction
fter
is enough that the person serving
Conicted 50
concerned has been scntence
carlie
In a casewhere the
offence for which the
belonging to a gang of dacoits, accused
simple theft or bad are being tried is the
in which the particular: ne of
security is bascd on evidence livelihood
dacoity and possibly robbery)merely
is not
that the accused
habitually commits
order for.
r givin
crime of evidence indicating an thefts (as opposed
which the isaccused sed ta
intention to commit to
Where a man has been
charged.51 the partic
tried ular
property stolen in a dacoity and acquitted on a
a knowing or having reasoncharge
dacoity, it is open to the Crown of being in dishonest
that the property possession
to
prove that he actuallybelieve
was not the to of
offence of which was
dacoity, it is open to the he was acquitted. Even iftook part in the dacoity, for thestolen in
Crown he was latter
neighbourhood of dacoity52 to prove that the day before the acquitted on charge oft a

Explanation to
dacoity he was seen in the
forth the evidence Section 14 of the Evidence
of priora act only means
the
conviction, which would offence as being relevant under that if the
accepted. It is also true thatmake the evidence of this section, thenprosecution
it may also
brings
Would amount to the
general previous offence more prove
mind in proving
rcference to
his bad tendency of an
character but the facts accused cannot be
effective in its beng
particular matter in offered in proof must proved as that
a

Evidence of question3 show the state of

prisoner is chargedprevious conviction is admissible
under Sec.
Sction 14
of the Evidence act.4 401, Penal Code only as specified in Sec.
ofthe gang. In order to previous 54 although WC
under previous convictions prove that the conviction can be proved nder
Expln. 2 to for and
previous person charged
cognate character Section
so as to
14 of
the Evidence act. commissions of similar shared the punp
chargcd. Former reasonably The
previous oftences are i levant
charge under Sectionjudgement 25 ycars oldpermit an inference as offence to
must wever be ofa
howevet persons
49 Walia 401, Penal Code to show convicting accused of state of mina o
(1910)
S0. Pratap State 11 PLR
criminal dacoity ads bl ina
is
51. AlR
$2. AlR
vs. 42:
(1910) 11
1930 Bom. of UP, AIR 1973 Cri. Li 364. tendency
53. 1930 157. SC 786: 1973
S44
AIR 1968 Oudh 455 SCC (Cr.) 496: (1973) 3
AIR 13om. 400.
AIR 1935
S5. SCC 690: 1975
$ 1963 Sind. 115
(127,
I 565.
AR 1925 Andh. Pra. 314 128): 36 Cri
hu
Sec 400] NATURT OFEVD NCEREUREDINAGANGCA

and guidance tr investigating

9. Nature of evidence required in a gang case

officers
for the purposc of committng dacrty,
rher

(1) Evidcnce of thc existcncc of a gang charges

during the time spccificd in thc
or theft as the case may be,
and specific, of the accuscd per soms at

(1) Evidence of association, both general aftcr committing dacoties or

theft: at
beforc and
different times and places both
for cach of the accused
lcast in a duality of such cascs

blood or marriage among thc membcrs of

the zang
(ui) Evidence of rclationship by
of dacoities and thcfts.
particularly to those convicted
c0-accused in two cases at least. stolen
(iv) Evidence of the recovery of property from
in dacoities, robberies and thefts.
committed by the gang
(v)Evidence of specific cases of dacoities and thefts
Evidence of identification either at the scene or at the Test Identification parades
(vi)
held later.
or thefts to be proved by
an
(vii) Evidence of the habitual commission of dacoities
aggregate of acts.
and thefts (the former alone can be
(vin) Proof of previous convictions for dacoities
Section 379, 380
400 I.P.C.) but convictions under
proved in a case under Section section 400 or 40! IPC. to
on a charge under
amd 457, etc., can be proved association of the members.
establish the habits of individuals or the
Criminal Procedure Code requiring
(ix) Proof of orders under Section 110 (a), (b) and (c), to prove that
persons to give security for his good behaviour,
any of the accused
the person is a habitual thief.
to avoid suspicion.
(x) Evidence of change residence
of
the dacoity
of purchase of property shortly after committing
(xi) Evidence of the
And Evidence
recorded.
Evidence of confession of co-accused previously
(xil)
approverS, ifany
to establish the participatiod
for offence under Section 400, it is not necessary
In a trial an
association of the accused for
the commission of the
If
of any member even in a single dacoity.
cogent evidence and the gang as a unit through
offences has been established by
member is equally culpable.
commit dacoities, every
members has been found to
cannot be considered
bad in law merely becs
A conviction under Section 400, of a specific offence
have justified a conviction
would also insutficient to
evidence on the record held that evidence held
1996 APP 344, it was
however, 400 in the
Section 395 8 In AlR the basis of conviction under Section
Section 395 cannot form
conviction under existence of a gang.
evidence about the
absence of other corroborating in a large
had been concerncd
them
accused person or groups of
Evidence that the

LR 416. 265.
$7 1947 Rang 162: ILR (1969) Cut.
455: 7 OWN 862; 32 Cr. LJ
58. AIR 1930 Oudh
 TR T

Ta
 3222 IAWOFCRIMES& CRIMINOLOGY
1umber of dacoties Withn a compaialivcly short spacc of tnc
C may be
may bc .

Such assOCiaton sulticicnt cvia

Where the accuscd were chargcd under Scction 4(0 and the
prosccut n sought t
aganst some of the accused that they had bccn prcviously convicted
af t.
ordered to give secunty for good bchaviour on the thc
ground bcing habitual thitheft or ha
of
that eidence rogarding
previous conviction was not admissible under Scctinn
Eidence Act. because the offcnce for which the
accused wcre bei. of the
one of
belonging to a gang of dacoits and simplc theft or bad livelih was the cing tricd
givng security was bascd on evidnce that the accused in which art
in
the
part clihood
cidenee indicating an intention to habitually
comnmit the particular crime committed
charged e
of wlhich the wa
the accuscd
10. Sentence
The various factors to be taken into
i)
consideration in awarding the
How long has the
accused belonged to the sentence ara .

(t) What dacoities have gang;

been committed by the
(1i) In how since gang the accused joined it
many of these dacoities
did the accused
(iv) What was the
character of the
actually take part;
An offence
under this
dacoities in which the accused
punishable under Section 395.section is more heinous than a case of actually took part=
awarded a more severe Therefore an accused found simple dacoity mad-
sentence than that is guilty under this section
In
awarding sentences the
normally inflicted in a case of
must be
concerned in only one or
Court should not consider ordinary dacoity2
clearly established that more of the whether
they did, in fact, dacoities committed by particular offenders were
the gang,
lt is a
serious offence and join the gang 3 but whether it was
consisting of desperate men the maximum penalty should
hcaviest possible prepared to proceed to all be added In
54 the case of a gang
sentence should
not so much
whether particular be passed. awarding
In lengths in
carrying out their crimes, ue
committed by gang, as whether
the offenders were sentences the Court
gang 65
it was concerned in only one ought to
or more of the consiu
clearly established that
11. Probation they did in fact join a dacolue
recog
Where the
Court held that accused, youngmen
released(students) who were not
they should be
59 1972 Cr. LJ
60. 25
Bom LR 1047: 1972
on
probation. previous convicted,
convictcu, the Supreme
61. 1953 214. Assam LR 71;
Mad. WN 1956 Cr. LJ
62. AIR 1961 933. 1208.
63. Pat. 260
64. (1911) 12 Cri. LJ (268):
65.
AIR 1961 260 1 (1961)
Pat. 260: (265): 1911 Cri. LJ 841
Ghulam 1LR Pun (DB): AIR 1956
66.
1978 UJ Mustafa (1911) 38 Pat. 1251. LR 68 (DB). Ori. 177
(SC) 202 12 PLR 297:
(186): 1956 C. LJ 1208.
(1911) 12 Cri. LJ 260
 And I hereby direct that you be tried WIut fny cognizanc
on the said charge.
Section 401

Punishment for belonging to gang of

he passing of this Act, shall thieves.-Whoever, at any time
after
belong to any wandering or other gang of persons
associated for the purpOse of
habitually committing thefi or robbery, and not
being gang of thugs or dacoits, shall be punished with rigorous
a
imprisonment
for a term which may extend to seven years, and shall also be liable to fine.

SYNOPSIS
1. Scope 4. Charge
2. Ingredients 5. Criminal Tribes
3. Procedure 6. Thieves

1. Scope
Section 401 no doubt has excellent objects and uses; but it ought not to be resorted to
made responsible
when the persons sought to be brought within its four corners might have been
unless an association for
for distinct and individual offences; nor is it intended to affect them,
the habitual commission of theft or robbery is clearly made
out.

2. Ingredients
) There existed a gang of persons.
committing theft or robbery
were associated for
the purpose of
(11) Those persons
to be comnmitted habitually.
That the theft or robbery was
(11)
was a member of such a gang.
(iv) The accused

3. Procedure
Non-compoundable,
Triable by Magistrate ofthe
Non-bailable,
Cognizable, Warrant,
clnes
 LAWOFCRIMES& CRIMINOILOGY
4. harge
I (name nd offie of Magistrale, elc.) hercby chargc vou (nan
follows- (name Of acCu
That vou. on or about the...day ;1sed)
of.......at.. bclongcd to a
of persons associated for the
purposc of habitually committing theft
thercby committcd an offence punishable undcr Sec. 401 of the India
(or robhor. (wandcring)
dering) ayan
and that r
1m cOgizance Codc, and within
And I hercby
dircct that you be tried the said
on
charge.
5. Criminal Tribes

(1) Bawaria.-Platts derives the word

Bawaria from the Hindi word
meaning crazy. Dalton draws it from the Sanskrit Ranla
word Varbar- a
derives it from Bawar or the
leather noose used to snare wild barbarian. But
But IIbbet Baura
connects it with the word an1mals. John Shakesna
Badhaks, the Kanjars and Shagalkhore
the Haburas.
(jackal eater) under which des1gnation
he includeceare
with the They are also said to be related in the
Bawartiyas who are described in
the some way
or otho
uribe of beggars,
pick 7ulfat ul Kirain (name of a other
pockets, quacks and astrologers. book) as a Sind
Bawarias are divided into
eight main sub-divisions, namely
Nagauri, Delhiwal, Gandhila, Paundhala
and Kaparia. The Deswali, Bidawati, Kalkamalia
classes, both men and women are
will act as a branded soon after birth Bawarias
with
are Hindus. In
many sub-
one of the
preventive against disease. a hot iron
Besides, the women have five tattoo which they beliove
outer corner of each
cheek and on the chin. eye, one on the inner corner of the marks on the face

chin. They have a They have also distinctive tattoo left, eye, one on the lett
dialect of their own marks on each
conversation with others which is arm, the chest and the
they are operating. The they usually speak Hindustani or the
intelligible only to themselves but in their
hunting, cultivation, ostensible means of
subsistence language of the region where
of the members
While on a criminal sheep-breeding and farm labour, but in of this tribe arc
Brahmins, Rajputs and expedition, they disguise themselves as reality, crime is their main
Bairagis, profession
word Das, occasionally
"Giri', or "Singh' to their asshoe-makers and sweepers. Gosains, Sanyasis, Udasis
sadhus. becggars or names. During the They sometimes suftix
pilgrims while day they disguise themselves i
pose themselves as reconnoitering and selecting the houses
Some of them
obscrving silence or holy men in places of they want to buig
decoities, housebreakings standing on one leg in the sun pilgrimage and try to impress peop
and thefts, for several
and
railway stations. They are temple thefts and hours. They com house
Bcfore snatching offences at placcs of rimage
extremely skilful in removing
committing
vhether the inmatesburglary, they throw onc or two ornaments from sleeping
plg
are awake small
burglarics in quick successions or a
sleep. Experience hasstones on roofs or windowS LO out
They have no while on their
criminal shown that they commit a sof
merciless to theirspecial modus operandi for expenditions. Asolitary case is a
foot long, victims. dacoities,
which they use They have been known torobberies, they are reportea to
cruel and

Cither to bcg or to sall

as a
housc-breaking im
carry a spoon-shaped instrHIN bout a
Sec. 401| CRIMINAL TRIBEs 32.25

and carry out a rcconnaissanCC

ot bunglaws hoSCs and
gang. They go ahcad, act as beggars takc of thcir
which are later or burgled. After arrival at the
sccnc of occurcncc, thcy off most
armcd with sticks.
loin cloth. Members of the gang.
clothes and enter the house with only a cven rmOv
thcm, should they gct up. Thcy
to attack
stand by the side of slecping persons
thcir bcing uscd against thcn If
other wcapons found in the house to avoid
guns, swords or in thcir attemps.
sufficicnt propcrty in onc housc, thcy pers1st
they fail in their attempt to gain satisficd with the loot. Bawarias havc boun
housc until they are
breaking into house after the leader posing as a Scth' and the rcmainder
assumed names,
known to stay in hotels under of crimcs. Bawarias do not
have even hired cars for the commission

as his servants. They occurrence. Thcy bury it ncar their

to their houses trom the place of
bring the stolen property shadowcd
Cash, however, is brought in. If they find that they are being
place of encampment. the buried property where it is. After
move on to another place, leaving
by the Police, they
members of the gang return and retrieve
it. The stolen property is divided
sometime, certain
is utilised
to the leader (Kamas), the second portion
into fivecqual shares; one portion is given The remaining
minor participants, cooks and reconnoiterers.
for worship, cattlefooder, reward to
the expenses of the journey have
been paid to the Kamas, are equally
three portions, after
violent during the
the Bawarias are not said to be
divided among the participants. Though attention of the
women give a lot of
trouble and attempt to divert the
search, the Bawaria the gang suddenly began to
Instances have been found when some old women of
search party. such ruses, incriminatingor
that the 'Dev' had possessed her. By
dance frantically, pretending to move out
allowed (by the search party)
articles are rid of. Even if children are
got
suspicious
articles.
they will also try to get rid suspicious
of
who trace
into three sections, viz., the Bidawati of Bikaner,
divided
It is said that they are Kalkamalia the weavers of
in Jaipur state, the
-

their origin from Bidawar (name

of a place) who are
Ferozepore and Sirsa (Haryana) and Kaparias
black blankets, generally
found in are divided
of Delhi. The Bawarias of the Punjab
found in large numbers
in the neighbourhood Dhandara
Solanki, Panwar, Dhandal, Chauhan,
sub-castes viz., Santyan, Gola
into seven exogamous
there are only four sub-castes,
viz., Turai, Pachchada,
and Dabi. But according to
Blunt,
and Khagi. accounts given of them
are to be found all over
India, but the
commit
(2) Banjaras.- Banjaras men who intend
to go out to
The
are superstitious. wick
State to State. Banjaras A light is lit and ifthe
vary from where an image of Sati is producted. allowed
this hut at night, No one is
crime mect in out on their expedition.
omen and they go
whilc
taken as a good accounts for
their silence
it is This
drops down, even if challenged. with ashes or
a crime, or smeared
while committing are muffled
to talk their faces forms of
While committing crime, are thcir fàvourite
Committing robbery. houses and on highways, powercd
Decoities
both
and robberies, in solitary
cartmen who,
over

powder. three or four will way lay Swords and

possessions.
crime. When operat1ng on roads, cash in their
valuables or sometimes spokcn
made to hand
over grain, Hindustani words are

by numbers, are
intimidation. uscd. In retreat, they
used for purposes of sounds, are

guns, if available,
are
signals, conveyed
by guttral their real destination.
Aftcr
often opposite to
them but more dircction from the
among departing in a
halt a mile or so
to mislead pursuit by call a short
endeavour
robbery. Banjaras
notes before
their final
of a dacoity or highway the spoils
stock of
and compare
commission
they take chiams or elevery
offence. There, hookas at home, and
scene of the are fond of smoking
their tandas. They
departure for
 LAWOFCRIMES &CRIMINOLOXV
Iolled leaf pipes (chuttas) away from home. Sickles, sticks.
icks, sliungs
weapons relhed on n the CommisSiOn of T m e s or
violenscc. and
alsocaned Fre-ams and swords arc tarely uscd Stolcn or Somc stoCS
ctimcs sNcarsarc
among the members ofthe gang. They arc furned into caslh. the ane
r
ctng tmo shaes
tle
(3) Musalman Banjaras. hey spccial1se in dacoits .
lcaler of the
hftng but do not oftcn resort to housc-brcaking. highway Tobtery and
(4) Barars.-The term Barvar denotcs a thicf. Thew ar.
trom the Kurmis who live in the neighbourhood of Patna. Dritin. icved to havc
ifting westward, some
Gonda. Barcilly. Sitapur, Hardoi and adjacent districts of
Others ment further south and chose the and rot
U.P. and
retaincd
country about Lalitpur. Ril. the amc Bar
Bundcikhand area of Madhya Pradesh for their home. nane
Sanorias They came to he
are nevor
accompanied by their women.
Barwars, on the other
and te
s Sanora
men folk with them and
employ them usefully in fairs,
esorts to violence in the Commission bazars, and festivale d,ake
do takc
ththe
of crime, they trust to Neither suci rR
of sings. Barwar women, well-dressed
and cunning. They have
temples and, while the worshippers are bejewelled, join parties of other women enter
engaged in their
devotions, steal what thes
dexterity and lightness of touch are marvellous and
rings and neckless without arousing the they have been known to
remove
thieves and also dacoits. Their criminal suspicions of their victims. The Barwars area
railway stations steamer ghats and bathing operations are carried out at fairs, places
the railwav for their activities. places. Both Barwars and Sanorias of pilorim imag
Barwar boys of 7 or 8 have taker
IKcn te
art of
pilfering. They are often made to do the actual years offorage are carefully trained in ti
if the bov is thieving the gang, the idea being th
caught, the owner of the property will generally let him off with a
arrested, they never admit the existence of bcating Whu
Cash is sent to their any relationship or connection with their confederats
homes by money orders or buried till a big haul is
(5) Bhatu.
made
-

William Crooke holds that the Bhatus

elsewhere as Berias, Haburas or are a branch of the Sansias know
Kanjars. In appearance the men of the tribe are
Wir and muscular, while the women
are fair and
gene as 2
Dranch of their own tribe good looking. They recognize Betas
the
but they do not admit of
and the Sansis. any affinity with the Haburas, tne a
(6) Beria.- The Beria is a tribe The
of vagrants found everywhere n
sOCial and cconomic Nortne
people is very much like those of the >ansis, Kaniars,
life of these ds
Haburas and the Bhatus with nfolk t
this difference that the Berias thcir womentolk

supplement their income by openly allow un

prostitution.
(7) Bhedkut.- It has and
been admitted by the Bhedkuts of the
Punjab that originally
they were Bhatus and they still make we esdue
withtothen
S With them

hose Bhatus
who migrated into
the
matrinmou duts due
notorious habit of Punjab began to be known as
b h a t

t
n
1act, the word stealing sheep and breaking their necks so that they
Bhatu and Bhedkut are
used for one and the
(8) Dom. san tOWn, ca
durt

food. wear the In the past they

-

out-skirts of a Geeral
were forced
dead and were excluded from allout-skiri
clothes of the live on the
to
intercoursc

excluded social
fron
Scc. 4011 CRIMINAL TRIBES 3227

they are low-staturcd and dark-complexioned. The Doms arc gcncrally looked upon as potential
criminals. but it is only among Magahiya Doms that thc commission oft crime Is rearded as
almost a sacred duty. A Magahiya Dom. rcaching manhood without having taken part in a
successfiul crime. would be looked upon with disfavour by thc womcn of thc castc and with

contempt by the mcn

(9) Kanjars.- Kanjar is a name usually applicd to a numbcr ofnomadic trihes of gvps
origin. The Kanjars are generally classcd in 12 sub-div1sIons. Thc Kanjars are a wandering
criminal tribe coming mainly from U.P. and from the crstwhile Hyderabad Statc. They now
reside mostly in Jhansi, Hamirpur and Jalaun districts of U.P., Gwalior, Bhopal and Rajgarh in
Madhya Pradesh, Gujarat, Bombay, Andhra Pradesh and Madras. They arc known as "Dakkani
or Marwari Kanjars" according to the part of the country from which thcy come
Their common language in Gujarat mixed and Marwari. Donkeys are a remarkable feature
in their camps. All Kanjars, whether Dakkanis or Marwaris, cannot resist liquor and while
under its influence they are sometimes communicative. But when sober they are most loyal to
their tribe and confederates and will never give any information to help the Police in their
inquiries.
They havea great regard for the pipal tree. If a Kanjar makes a wrong or false statement.
he will never assert that his statement is true before this sacred tree. Their criminal activity
begins only after the evening meal, as soon as it is dark. They go out three or tfour times a week
to steal, returning with their booty later on in the night. Other forms of crime committed by them
are dacoities, robberies, house-breakings, cattle and railway thefts. In dacoities and robberies

they terrorise villagersin outlying hamlets and rob them of their property or waylay victims
markets snatch ornaments from women and children.
returning from or

The Dakkanis never retain their booty with them but try to dispose of it through the patel
or habitual receivers, while the Marwari Kanjars conccal theirs in or about theii camp Bulky
things are buried in the ground while small and valuable articles are secreted in the hollow legs
of the small cots uscd by them.
shelter.
(10) Pakhiwara or Pakhiwala.- Pakhi is a Hindi word which means a read
shelters
and Pakhiwala is he who lives in a Pakhi. All wandering gangs who lived in portabie
are usually called Pakhiwala' or Pakhiwara' or Pakhiwas.
But now the word Pakhiwara is
Sir Denzil Ibbetson is of opinion that
especially used to denote a Mohammedan criminal tribe.
as Machchhimars (tish-killers).
Pakhiwaras are a branch of the Sansis. They are also known
other hand the the
of their own offshoots, but,
on
The Harnis claim that the Pakhiwaras are one

their brethren. They are also known as Meosdwellers of

Pakhiwaras do not consider them as
rivers and are mostly found in the district of Sialkot in the Punjab.
their place of
Brahmins and state that Bengal
was

(11) Tagu.- The Tagus claim to be exterminating snakes. Their ancestors

invited them to the Punjab for
origin. Raja Janmejai to end the entir
means of which Janmejai proposed
performed the Great Havan (sacrificc) by Bawarias but ar
not hardened criminals like the Sansis and the
species of snakes. They are
crime simply to supplement
their incom
only petty thieves andpick-pockcts, who have adopted
from cultivation.
 328 LAWO CRIMES &CRIMINOLOGy

(12) Doms. -

Webster has describco Doms as

'a tribe
thein nature and notcd for their rootcd crsion to
to stcaling. but according to Hollins the Dom
regular
work of all opclessly wil
has now laid
aid aside
aside bhis kinds,
the burglar's iron and has addcd robbery to his
tCTTOr for him, but he stands n mortal terror
of
rcsources,
the lash.
Hc isis a
Ho
Bramle SOCial
oTgvalahwwl;
superstittitious
CTime' also confirms the statcment, Most of thc
wIth much readicr wit than ther husbands but
Dom mley'
women
s report outcaste
on st al
drugsclaiming wonderful results, and manage of casy virtuc. Elderi. nter Preom
of strong onstitst
to gain
procure necessary information for the trial entry into the housomen
hawM
Sir William Crooke does not
gangs. Quses of TiCh hrot a

thev live in forests. and subsist by mention any organized Dom pers
supplement their income by gathering andwolves, hare, other wildgangs.
hunting He
animals andsimply
animal
require any cultivation and by selling roots and
extracting juice from palm treesvegetable bird wriThe:
birds. te
(13) Sansi.- The Sansis like like other which d
upon land and those who still leadmay
be
divided into two gypsy tribes
t

crimes, but
a nomadic life. The formersections, i.e., those.
those whe
who have
they occasionally help the latter section, the
do not themselvoe
countrvside where they wander. They are a vagrant Sansis
who attack notorious tribe Sans1s are a t Stns
passengers drivers of
or of menace
burglars and highwa ace
They usually dispose of the
vehicles unawares with stone
showers.
1. Bury it under plundered property any of the
in
a tree or
2. Hide it under
bush. following ways
the legs of their cots
3. Conceal it
under the tent
and sometimes under their
4. poles
under the pegs to
or hearths.
Silver and gold which their
5.
ornaments are melted down cattle are tied
Cash is and concealed in hollow tent
generally converted into poles.
6. Women hide currency notes and sewn in
jewellery and cash in the hidden quilts or donkey packs
Stolen
property is disposed of pockets of their underwears.
has to
accompany them through the Kalals, and
they are honest in their to the jungle where the actual goldsmiths. The intending purcha
dealings with such customers. transaction takes place. It is salu u
Criminality.-These
same differs
from tribe to
tribes have various
modes of
particular type of crime in tribe and from place to place. operation in
commitn
One branch of a tribe mis
and tn

an area
a
different type of
crime in another
while another branch of the same tribe co
tribe commits complt
lawlessness from the area. The
younger members of the comm spritor
they are brought very begining. This tribe
up. There is also is further in in which
Own wits
which leads them the
dangerous açcentuated
entuated
lure or attraction
by
by the
the envirom
env ing byby ones on
Cverything regarding the into a life of crime. In the attraction in them of living
tne
operation and ways and means of begining the youighes areetaught tat oco
way they instil loyalty
for

in the amongst
the tribesmencommitting crimes and aabout the neces necesity Ths Thus
1ns

heir hvelihood by minds of the youngsters that it preserve tne Crecysacredduty to

so as to of
O the gang.
c a n

dacoits and committing crimes is their ght and

robbers birthrigAals
o r i o u s

become veteran crimina whom they know and in the not

m
or are
doing so, to emulate the ideals of
emula
of thc ther

inals. told. Naturally, when these children gro

Inspite of SC
a c d

an youngster who wne

these, youngster who adoes not indulge
ulge in
crime
1s4
Scc. 4011 CRIMINAL TRIRES 3229

by the members of the gang as a coward and effeminate. In many of the tribcs. it 15 customary
that no girl would be given in mariage to a boy unless he can provc himsclf to he an cxpert
crummal.

Burglars.-Burglars arethieves who break into residences, stores, lofts, or other buildings
and money. merchandise or other articles of valuc thercfrom They arc classificd. from
takc
their techniques, under four majour groups : (1) apartment, (2) house. (3) storc or loft and (4)
safe burglars
Store Sneaks.-Store sncaks arc termed "shoplifters". Operating alonc usually, they
cause a tremendous yearly loss to merchants. They are generally women, although there arc a
few men in this ficld.

The stores concerned have performed yeoman service in apprehending these thieves. It
may be impossible to close such an investigation unless the stolen article is recovered and
traced to the thict. Most of these cases are cleared by an arrest of the shoplifter while he or she
is committing another crime at some time following the one being investigated

Shoplifters.-Shoplifters must repeat their crimes. Like the majority of pickpockets,

they gain very little from each crime. Observation in the store réporting the theft is the best
method of identifying and apprehending these criminals
Criminals in this group grab a woman's handbag, snatchingit from her possession. They
are very difficult to apprchend. Only feasible techniques are viewing of photographs by the
victim, and close observation of the general area of their operations. Since they take the money
from the bag by throwing it in a hallway or similar place, they cannot be readily identified from
recovery of stolen property.
Thesc criminals are as 'difficult to apprehend as the auto sneak or purse snatcher.
ldentification by the victim cannot be madeunless he catches this criminal in the act. Like the
safe-burglars, they are tradesman at their selected crime. However, the frequency of their
crimes and of their arrests makes them easier subjects to apprehend.
Pickpockets.-Most Pickpockets follow the same technique throughout their carecr
fall
except that the lush-worker may graduate to other techniques, and any pickpocket may
onhard times and be forced to luch-working.
There are seven distinct types of pickpockets. They are (1) bag-openers. (2) patch-
workers, (6) fob-iworkers
pocket workers, (3) seat tip-per, (4) pit-workers, (5) pants-pocket
and (7) luch-workers.
of their criminal acts
Larceny.-Professional criminals live mainly from the proceeds
be committed by them, but all
Protit is their motive. Larceny is their crime. Other crimes may
of them are thieves or robbers.
in furtherance of their major motive. The great majority
in their
Most professional criminals are creatures
of habit, they use the same technique
and confined and have time for "bull
crimes only after they are arrested
time after time. It is
are made in their techniques.
Until they are caught
sessions with other prisoners that changes
is fool-proof. Naturally, after an arrest they are
most of them firmly believe that their "system"
release thcir technique may be modified.
in doubt. They discuss it with other prisoners. Upon
 3230 LAWOFCRIMES &CRIMINOIOGY
The manner in which a certain professional criminal commit
which he speciahzes are the techniquc ofsuch criminal, Thc stul mc, and the
of
crime will. to a certain extent, idcntify the criminal. the techr
This techniquc is the modus operandi
of the individual criminal t.It
ith that of other eriminals committing the same or
related crimcs. can
slated be
classification is the basis of the file known either as the crimes. uch rcad1 c.
Suchadily
Operandi File. Criminal Techniquc technique,theckasandfiest
File o
The moderm criminal investigator must be Modh
in use by the thoroughly familiar with
ith the
now
professional criminal. the various
.

6. Thieves techny
A thicf is any
person who steals profit. Thieves
professional criminals. They also presentfora difficult form the largest
are
rarely observed while at work. problemthe to single group
Therefore, their identification mustinvestigator ha O9
other than
identification by the victim. must be through sonme
through some
Themajor portion of a criminal
theburglar that seems to operate investigator's time is spent in the
most frequently. Hovwever, the
shoplifters and auto thieves are also pursuit of thiees b
The most
encountered many times. pickpockets, purse-snatchers
feasible means of
property. The
in the event cooperation of honestapprehending thieves is
merchants is sought. through the recovery of the stolen
second-hand merchandise
is
offered to They are asked to report the
them
dealers are asked not only to at a
suspiciously low price. details
make an effort to report Pawnbrokersand
store until the suspicious
hold them in their persons immediately, but also t
Thieves prefer to arrival of the local police.
dispose
presumption exists as to the of stolen articles immediately
as
delivery IS made to the fence or person in possession of after their crime. A strong
guilt of a
article.
Delivery can be made
his agents at
the drop, all
recently stolen property. As sout
marks is
usually in a premisesanywhere to any agent of the fence,identification is removed from &a
under the receiver's but the removal of
Merchants, control, and by more trusted identinica
stolen pawnbrokers,
property should be second-hand dealers and other agcns
of information about thoroughly persons suspectu oof receiving
less than receivers.
they believe they
investigated.
Most thieves The thief
himself, upon
upon arrest, can give al
should receive for believe that fences cheat them,arrest them
exploited, enables an E
uch

The reason
investigator to secure the stolen property.
information from them. be
nODr
perty. This belief, when propert
for
with whom
but also in
the fence
a
thorough
does businessinvestigation in these persons
is cases is that tne
the knowledge of
closing
and receivers,
many other cases. important not only in closing the casc
but may also result in the recovery of a tremendous amouane thievstigated

Over a Such an the case being mve

million dollars
recovered m a Ollars worth of
investigation
investigation will not ouy
of a
only turn up outhe
thieves

e np r o p e r t y

recent case of property tremendous amount

stolen in seven cves was

states by tw enty-
Sec. 402 SCOPE 3231

Section 402

Assembling for purpose of committing dacoity.-Whoever al any time

afier the passing of this Act, shall be one of five or more persons assembled for
the purpose of committing dacoity, shall be punished wilh rigorous
iinprisonment for a term which may exlend to seven years, and shall also he
liable to fine.
SYNOPSIS
1. Scope 3. Procedure
2. Ingredients 4. Charge
1. Scope
This section applies to mere assembling without proof of other preparation. Where there
is preparation Sec. 399 applies. This is the only distinction between Sec. 399 and this section.

2. Ingredients
) An assembly of five or more persons.
i) The object of the assembly should be to commit dacoity.
(1) The accused must be one of the five or more persons so assembled.
To prove. why the five accused had assembled at the Dharamshala. The Dharamshala
consisted of only one room and it had only one door and no window. He had stood outside that
room and a little away from the door. He had not told anything more than that five persons
inside the Dharamshala were planningto rob a petrol pump that night. As the evidence discloses
the weapons were kept concealed on their persons and there was complete darkness inside the
room. PW 2 had not even gone near the door. This would clearly indicate that PW 2 was not
telling the truth when he stated that he had heard the accused talking about looting a petrol
pump. It is, therefore, not possible to sustain the conviction of the appellants under Sec. 399
and 402 IPC. Their conviction under Secs. 399 and 402 IPC will have to be set aside."

3. Procedure
Cognizable, Warrant, Non-bailable, Non-compoundable, Triable by Court of Session.

4. Charge
T (name and office of Magistrate, etc.) hereby charge you (name of accusea) as

follows:-
That you, on or about the.....day of. . . .were one of five (or more)
a l . .

and that you thereby committed an

persons assembled for the purpose of committing dacoity,
offence punishable under Sec. 402 of the Indian Penal Code, and within the cognizance of thec
Court of Sessions.
And I hereby direct that you be tried on the said charge.

1. Suleman vs. State of Delhi, AIR 1999 SC 1707: (1999) 4 SCC 146.
 LAWO(RIMIS

3232
Section 403

p r o p e r t y . - W
ver ddishonestl..
Whoever
h o e

of
nt
m i s a p p r o p r i a t i o n

own
use any
mOvahle
perty, shall h
whic
Dishonest

or
coveris
to his
descriplion Jora term
vhich may extend
of either
m i s a p p p r i a i o n

imprisonment

puisiedwith with both

o r wih
fine, o r Ilustrations
1o tuo jears,
in uci

to Z oul of ZS
possession
. fanth
proper1y
belonging
the thal property belongs to
(a)4 takes when he takes il,
the time his mistake, disho
belicving, at afier discovering
A is notguilty of thefi; but ifA, own usSe, he is guiiy of an offence 1tml
der
to his
the properiy
appropriales
this section.
Z S ibrary in Zs absence. ani
terms with Z, goes into
bi A being onfriendly 2s
consent. Here, if A was under
the
without express
akes away a book to take 1he bookfor the puroe
he hadZs implied consent
impressiom that sells the book
committed theft. But, fA afterwards
it. A has not
afreading guily ofan offence under
he
this section
for his own benefit, is
horse oul of B3
owners of a horse. A takes the
c) A and B being joint use the horse, he
to use it. Here, aA has a righi to
possession intending and
misappropriate it But if A sells the horse
does dishonestly
not
to his own use, he is guilty of an offence
appropriates the whole proceeds
under this section
time only isa
for a
Explanation 1.-A dishonest misappropriation
misappropriation with the meaning of this section.
Illustratioon
a blank
A finds a Governmnent promissory note belonging to Z, bearing
endorsement. A, knowing that the note belongs to Z, pleads it with a banker n
d
a securityjor a loan, intending at a future time to restore it to Z. A has comml
an offence under this Section.

Explanation 2-A person who finds property not in the possessiou oro f
other person, and takes such
property for the purpose of protecting it Tol,"isnot
restoring it to, the owner, does not take or misappropriate it dishonesuy
guilty of an offence; buthe is guilty of the offence above defined, ifhe appreropnal
of
or
t to his own use, when he knows or has the means of the
owner,

before he has used reasonable means to discovering

ng n
owner.
r and
otice to the
discover and give notice
 MISAPPROPRIATION
Sr4031
has kept the propcity a reasonable time to enable the owner to clan it

rcasonable time in such a case, 1s a

What are reasonable means or wlhat is a

question of fact.
It is not necessary that the finder should know who is the owner of the property.
or that any particular person is the owner of it; it is sufficient if, at the time of
in good faith
appropriating it, he does not believe it to be his own property, or

believe that the real owner cannot be found.

Illustrations
to whom the rupee belongs
(a) Afinds a rupee on the high road, not knowing
committed the offence defined in this
A picks up the rupee. Here Ahas not
section.

(b) A finds a letter onthe road, coniaining a bank note, From the directuon
He
and contents of the letter he learns to whom the note belongs.
guilly of an ofence under this
section.
appropriates the note. He is
n0 conjecture as to the
(C)A finds a cheque payable to bearer He can form who has
But the name of the person,
person who has lost the cheque.
can direct him to
drawn appears. A Knows that this person
the cheque,
drawn. A appropriates the
the person in whose favour the cheque was
cheque without attempting to discover the owner He is guilty of an offence
under this section.
the purse with tha
(d) A drop his purse with money in it. A picks up
sees Z
it to his ow-
intention of restoring it to 2, but afierwards appropriates
use. A has commitied an offence
under this section.
not knowing to whom it belongs;
(eA finds a purse with money,
and appropriates it to his OW
afterwards discovers that it belongs Z,
1o
section.
use. guilty of an offence under this
A is
to whom it belongs.
A sells
A finds a valuable ring, not knowing
discover the owner A is guilty of
o
to
immediatelywithoul attempting
offence under this section.
Misappropriation
dishonest
means and connotes - Appropriation for a

Misappropriation
conversion, defalcation, defrauda
use, breach of trust,
appropriation for a wrongful use of property, lar-
fraudulent conversion, illegal
diversion, embezzlement, fraud,
wrongful conversion of property, wrongful use.

misusage, misuse, pilferage,

 324 LAWOFCRIMES& CRIMINOLOGY

Appropriation means and connotes:- Acquisilion, annexation, Cu.

aking pOSSession
contiscati0n. coversion, dispossession, diverstment, seizure, taking poNse Pture
SYNOPSISS

1. Scope 10. Abandoned

2. Ingredients 11. Present
3. Appropriation 12. Wrongfulloss &
Wrongful gain
Appropriation as a continuing act 13. Offences and
S. Appropriation by a finder
Charge
14. Any movable property
6. Owner 15. Screening letters
7. Misappropriation
16. Claim of right.
S. Criminal misappropriation and 17. Servant Misappropriating
other offences 18. Joyride
9 Dishonest intention to 19. Procedure
misappropriate 20. Charge
1. Scope
This section is based on human
nature,
something having some value on the road with tendency and behaviour. The man on finding
an honest intention to
because of the temptation, return to its owner, can
because of the
changes mind to convert the same to his own
use. So an honest
temptation, because of a natural instict becomes dishonest. man

subsequent intention. This is the only difference This is called

at the outset one
must have the
between theft and this section. In theft
primarily
the subsequent act. dishonest intention, while in this section dishonest intention is
The act in this case is the
This omission is the finding ofa valuable while omission is not to returm to its owner.
ingredient of this section. Otherwise, in law, act includes
So to constitute the offence omission.
under this section, there must
property and the misappropriation must be be
misappropriation of moveabe
must be dishonest. In order to be dishonest, the
misappropriated or converted "with the intention of property
person or a wrongful loss to
another", causing wrongful gain to one
of property to which the i.e., with the intention of causing gain by unlawfül means
person gaining it is not legally
property to which the person losing it is entitled, or the loss by unlawful means o
legally entitled.
2. Ingredients
The essential
ingredients of the offence under Section 403 are as
(1) The follows:
subject-matter of offence is movable property;
(2) It belonged to the
(3) Accused
complainant;
misappropriated converted to his own use the said
or
4) He did it
dishonestly. property,
3. Appropriation

APpropriation suggests an
offence against ownership as much as it
u g g e s t s interterence

suges
Sec. 403] APPROPRIATION

With posSCSSion. A person cannot be guilty unless he violates the owncr s rights in some way
and that an incfficacious transaction should not be accordcd thc status of the full offcncc of
as one s Own, and that 15 not
thett. Thcre ust be a positive decision to treat thc property
cxistence of the propcrty. To assumc the rights of an
possible when a person is unaware of the What is rcquircd s
owner is an ingredicnt appropriation, it is not by itsclfcnough.
important of
Some conduct, by way of act or omission.

offence of larccny, thc courts

When lack of the owner's conscnt was an ingredicnt of the
facilitation. If, in order to catch a thicf, an owner
developcd a distinction between conscnt and
out marked moncy or a marked letter,' he
facilitated the theft but did not consent to or
put
authorise the taking. All he was doing was attempting to get evidence that a particular suspect
as a thief. When the thief takes the bait (or does something with it that he is not authoriscd to
do, as by putting the letter that he has in his possession for delivery or return into his own
pocket), he commits theft. Selling, or purporting to sell, property belonging to another and more
recently in connection with the manipulation of bank accounts.
Strictly speaking, an appropriation is a mental act and implies an allocation of a thing as
one's own. In this sense, appropriation may be completed as soon as a person decides to set a
thing apart to one's exclusive use.

4. Appropriation as a continuing act

Appropriation as a continuing act does not mean that a person who steals commits thefi
of the property stolen every time he subsequently does some act inconsistant with the rights of
rue owner. Appropriation is neither a series of thefts nor a continuing act," although when
it suits their purposes, thecourts are inclined to say that it is. If a person steals an object and
later sells it, he is by definition guilty of theft on the first occasion, and should not be treated as
a thief on the second, although it may be that he obtains the purchase price by deception.
The illustrations to Section 403, which are rather statements of principle than mere
illustrations, clearly show that the essence of criminal misappropriation of property is that the
property comes into the possession of the accused in some neutral manner, whereas the
illustrations in Section 405 show equally clearly that the property comes into the possession of
the accused either by an express entrustment or by some process placing the accused ina
position of trust, for example, as given in llus. (a) he accused being an executor.

5. Appropriation by a finder
The finder of lost property does not necessarily appropriate it just by picking it up. lf he
he does not assume the
up intending to look for the owner and restores the thing him,
it to
picks
held that the
rights of an owner True, he assumes a right to possess, and the House has
he does not
assumption of a single right is capable of amounting to an appropriation.° But
. 1965 All 233 (235): 1965 (1) Cri. LJ 539.
2. Per Plowden, J., in Kesho Ram, (1889) PR. No. 36: Rambilas, I.L.R. 38 Mad. 639; Ram Byas Rai vs. Emperor

19 Cr LJ. 943.
3. 1911 (12) Cri. LJ 374 (374) (All).
4. 1926 All 302 (303): 27 Cri. LI 297.
5. Basudeb Patra vs. Kanai Lal Haldar, AIR 1949 Cal. 207: 52C.WN. 641.
6. 11LR (1954) 2 All 427 (DB): AlR 1920 Upp Bur 39(40): 21 Cri. LJ 149.
 and his conduct would nat h.
be
assume th nght as against
dctemine the tume
the oWncr,

at wlhich the finder apprane:

a
trespass Th
keepitit e.for himsclf hthe
ihe artiche found may I f1f
worth, he may decidee to kcep
someih1ng that is of great
bcforartd, ,
no
or
con
the coim at the timc hc picks it
Should he do so. he appropriates tup, but w
i

guit.
up
because he would not be dishoncst. would A
6. Owner

The words as "owner suggest that the actual use of the propert
led aa sovereion.
indicate an intention to appropriate. When a person was handed
sovereign in the
ch as t Sucha
both transferor and recipient thought that it was a shilling.° The
The issue thati
issue that dark a
possession off it before hepuzzled the
becam yudgs
whether not it could be said that
or
he was in
w.as
what it was The decision to treat oneselt as owner may be purely temporary, For eve are gi
mav represent to a third person that one Is the owner of property and therehs nple, one
without necessarily intending that the owner should be permanently deprived byhipra
by his propert
Lawrelating to misappropriation of property in India is contaned in Section 403.
Indian Penal Code (Act XIV of 1860). This section occurs in Chapter XVII
under the hond
Of offences against property". neadine
This offence is often confused with the offence of theft
though it has different ingreriems
The framers of the Code have observed,

if we call it theft, we speak the popular language, if we call it

not in possession, we avoid an
misappropriation of propert
anomaly, and maintain a line which, in the great majority of
cases is reasonable and
expedient. On the whole, we are inclined to maintain this line"
The question whether the
finding of property, the owner of which is not known, entites
the finder to
appropriate it, has been answered in Illus. (), Expl. 2 under which he is
bound to attempt to discover the
owner though an indeterminate
created. A very high standard of liability for all t1me is not
Betore
honesty is demanded of the finders of lost propert
appropriating it, they must attempt to find the owner, if they have means
doing. If there is no clue as to the or snd
owner, the finder must use all reasonable means t
the owner and must
wait a reasonable time to allow the owner to claim the ert
before he
appropriates it. If he appropriates or converts to his own use the pro found
without so waiting, he
might be guilty of criminal propei
Ihe mere fact that
a thing was
misappropriation.
make its capable of ownership does not make it prop
appropriation a punishable wrong. Examples have
Section 378.9 already bec S
Section 403, Expl.
1, clearly states that a dishonest onlyis
td

whether the accused wasmisappropriation

for a ime
O proved in such cases is
intention
not and which actuated by dishol
or dishonesty
reasonable explanation or
has to be inferred
from false accounting
ofbonafides
absei
7.
8
1940 Mad 329
(336): 41 Cri. LJ
non-accounting.
974 (40) Cut 824.
andhu. 1.1.R.1T 771 (774): 1959 Ker LT 549
8 AlI. 51:
J 830.

Nihal, 1.L.R. 9 AlI. (552) (DB): AIR 1942 Oudh 475

&
862
1Dwarka Dass vs. 17
Cal.
349,
Venkat Narasimhulu, AIR 1923 Mad 360 romesh Chander Sanya vo. **
10. In re. Ch. LLR.

Suhha
Sec. 4031 MISAPPROPRIATION 327

7. Misappropriation
dishonest misappropriation or conversion to his own usc
of
This section punishes the
crime only when two things can
movable property by an accuscd. A person will be guilty of that
or convertcd to the use of the
be established. Firstly, the property must be misappropriated
accused and secondly, that he must misappropriate or convert it dishonestly

has not been expressly defined in the

"Misappropriation" The word 'misappropriation'
Indian Penal Code. The word "to appropriate" means "setting apart or assigning to a particuiar
for one s use to the
person use and to misappropriate means improperly setting apart
or
exclusion of the owner. Thus, misappropriation is the wrongful setting apart or assigning of a
sum of money to a purpose or use to which it should not be lawtully assigned or sct apart. To
constitute the offence of criminal misappropriation the property must have come into the

possession of the accused innocently on the first instance2

Larceny and embezzlement in English Law are the offences which represent hat is
known in India as theft, criminal misappropriation and criminal breach of trust. There 15 no
exact equivalent in English law of criminal breach of trust. The authors of the English Digest
while suggesting a distinction between theft and misappropriation, have, however. temed the
offence of criminal misappropriation as fraudulent appropriation.

The Indian law is at variance with the English law in two respects
)Under the English law the intention ofthe accused at the time of finding the property
is taken into account. Even if the accused changes his intention from honest to
dishonest afterwards, he is not guilty. English law regards such a case a einil
wrong, But in India on the other hand, a subsequent change of intention is sufficient
to make accused liable for the offence.

() According to English law if the owner of the property cannot be discovered, accused
cannot be held guilty.
Illustrations (a), (6), (c) and (d) to Explanation (2) seems to have been drawn from the

English precedents. Illustration (t) is however at variance with the English law. Unlike a criminal
breach of trust, no entrustment is necessary to constitute an offence under this sect
property comes into possession of the offtender who dishonestly converts or misap
the same to his own use, the offence is committed."4 It is no answer to a charge o
for the purpose for whid
misappropriation that the money was subsequently disbursed eve
been entrusted. to Explanation ofthe section, a dishonest misappropriation
According
a short time only is sufficient to constitute the offence.

8. Criminal misappropriation and other offences

and criminal of breach teSt.
(a) Criminal misappropriation, theft, cheating
offence of theft, cl
An easy method of differentiating between the
329: 1939 MWN 1213: 1213 RM 386:
11. Rex. Krishnan 41 Cr. LJ 824: AIR 1940 Mad
v.

12. W. Gardner v. U Khan 38 Cr. LJ 48: A.I.R.

1936 Rang 471: 165 L.C. 596.
Promode vs. (1965) 2 Cr. LJ. 562.
State,
14. Mahabir State. AIR 1961 Assam 132.
vs.
958: 1972 Cr. LJ 593.
15. Khandu Dhohi vs. State. AR 1972 SC
 238 LAWOFCRIMES & CRIMINOL.OGY
Scc.
property. eriminal misappropriation and criminal brcach oftrust is to find
find out
out whethe
taking was honcst or dishoncst and whcthcr it was with the conscnt of the whether thc
the owncr r
owncr or orginal
the ow without it
In theft the original taking is without honesty and without the conscnt of
criminal breach of tust it is with both. In obtaining propcrty by Owner,
cheating, the takince dhd in
honcsty but with the consent of the owner, and n criminal misappropriation it is hr out
without thc consent of the owner. but
(6) Criminal misappropriation and thefi.
Cases relating theft are not quite relevant in
to
considering cases
misappropriation criminal breach of trust in as much as in case of theft mere of crimminal
or
the possession of a removal f
person with dishonest intention is enough, while in the case from
of crimi
misappropriation there must further be misappropriation or al
conversion."
In theft, the
object of the offence always is to take property which is the
in
person out of that person's possession and the
offence is complete as soon aspossession
a
of
has moved the
property in order to a the ofcnder
not necessarily an invasion of dishonest taking of it. In criminal misappropriation, there
the possession another is
which he possesses. The of person by attempt to take from him
offender is already in possession of the property, and is that
in possession of it, because
either he has found it or is a either lawfuly
strictly lawful, is not punishable as an offence because just owner of it, or his possession, if not
he has acquired it under
notion of right in himself or of consent some mistaken
given another. by
(c) Criminal
misappropriation and
cheating.
In order to
constitute the offence of
and thereby cheating, it is necessary that the intention to deceive
dishonestly obtain delivery of property should exist at the time such
sought. Where no such intention exists the delivery is
offence will be criminal
possession was obtained in the first instance misappropriation, since the
innocently and
conversion took place a dishonest misappropriation
subsequently.18 or

(d) Criminal
misappropriation and criminal breach of trust.
The illustrations to Section 403
I.P.C.,
illustrations, clearly show that the essence which are rather statements
of criminal of principle than mere
property of the accused misappropriation
comes into the of property is that
possession
illustrations to Section 405 show in some neutral tne
manner, whereas the
the accused cither equally clearly that the property comes into the
by an express entrustment or
position of trust, for example as by some process placing the possession
accused in
o
a
the ornaments were given in llustration
A, the accused being an executor. Werc
handed over to the accused
they would be returmed to the beneficial by the beneficial owner in confidence
owner in due time
purpose for which they are handed after having been used ror
the accused to over, this amounts to
retum them, amounts to entrustment and failure on the pard
an offence of criminal breach of
9. trust.
Dishonest intention to
The dishonest
misappropriate
16.
Narsingh Das Marwari
misappropriation or conversion to his own use of movable propery
17.
Nathulal v. State 1953 Emperor, A.IR. 1928 Nag. 113.
v.

18. Subbe Gowda Cr. LJ 842,

A.I.R. 1953 Pat. 100.
19
Basudev Patra
v.
Majamma Heggadathe 9 Cr. L.J.
Kanai Lal
Hlaldar, AIR 1949 Cal.312: 12
v.
M.C.C.R. 55.
207.
Sec. 403
DISHONEST INTENTIONTO MISAPPROPRIATION 3239

to misappropriatin or conversion
accuscd. Mere intention to misappropriatedocs not amount
converls to his own u se any movahle
Whoever dishonestly misappropriates or
Sec. 403, IPC. Here the taking o r gelting 1s
property is liable 16 be punished under
"entrustment" of Sec. 406.
neuiral a s distinguished from
conversion is that the accuscd has received
gist of the offencc of fraudulent
The
of anothcr person, firm, or corporation, and
into his possession the money or property
the same to or for his own usc and bencfit, or
fraudulently withholds, converts, or applies
to the use and bencfit of any person other than the one to whom the moncy or property
to the accused use the bencfit, etc., did
belonged. If the property so withheld or applied
not belong to some other person, etc., but was the
accused own money or property. even
the property, the
though obtaincd by borrowing the money, or by a purchase on credit of
offence has not becn committed. "Whatever may have been the intention of the legislature
in the enactment of the statute under which the indictment in this case was drawn, it was
and it is
clearly not intended to make criminal the act of one who sells his own property in the
not to be so applied as to make it an effective substitute for an
action at law
collection of a debt."
in the Central Tractor
appellant was employed as an Assistant Store Keeper
The
steel received by rail for the
Organisation, Delhi. He took delivery of a consignment of iron and
organisation and removed them from the railway siding. The goods did not reach the organisation
and when he was called he
The appellant absented himself form duty on the following days
when the prosecution proved that the
gave a false explanation that he had not taken delivery
servant received the goods, that he was under aduty to account to his master and that he had
not done so. Where a bus coductor was accused of failing to deposit fares collected by him

and there was no evidence produced to show that the accused had in fact realised fare or in
was not made
any way came into possession thereof, a case of dishonest misappropriation
Out, 21

criminal
The whether the act of the accused is dishonest, so as to amount to
question
and its determination must, therefore, depend
misappropriation under this section, is one of facts, dishonest
of each case. The fact that an act of the accused was
upon the proved circumstances
and that it was connected with property does not make
it a dishonest misappropriation of
more than a mere non-fulfilment
of an obligation.*
property. That term implies something
10. Abandoned
has abandoned the property. The
appropriator believes that the former
owner
Where the
to deprive the owner,
because he believes
appropriator does not believe that he has the right that
he is not guilty of theft, the mOst obvious reason being
that there is no such person. Clearly, and therefore lacks the intent required
for theft. If
he does not intend to deprive an owner,
not dishonest, under the general
requirement of
also be held that he is
necessary, it could
dishonestly.
1953 Pat. 100.
20. Nathulal v. State 1954 Cr. LJ 842: AIR
21. Puspa Kumar Rai, 1978 Cri. LJ 1379 (Sikkim).
22 Boystum Moochee, 17 W.R. 11.
 LAWOFRIMES& CRIMINOLOGY
3240
The aceused pleaded guilty before the Hench Magistrate Ho stated s
He statcd that
subject-matter of the allcgcd misappropriation, the nuhl. ad, an
in
spanner. the
not know who the ownerof the and
to sell it The accused dhd
aitempted
appreeiable 1alue. Hehd, that this was not a case where it could be e spanncr
uld be said could
reasonable means of d1scovering and giving notice to the owner of havine the ae
and that the convietion under Section 403 should not be upheld 23 found

11. Presents
On the accused promising to marry his daugnter to thC complainant, the
over to the accused certain ornaments as presents to the bride in consideration of a
The accused however, subscquently gave his daughter in marriage to a differo the
denicd all knowledge of ornaments. It was held that the accused was pe
technical.
criminal misappropriation under Section 403 but the more appropriate procedino
been on an action in the Civil Courts 24
12. Wrongful loss & Wrongful gain
The buffaloes strayed. They were found in the
possession of the accused. He ker-
for some weeks. When the owner appeared on the scene
twice, he did not deliver the h-
to him, but put him off on the that
pretext he would make inquiries from the vendor
from
the purchased them. He made no
attempt to prove that he received these buffaloes fror-
one else. He merely disowned
them. He was thus keeping these buffaloes knowing tha
did not belong to him. He did not
try to find out the real owner and declined to give the buf
to him when he
appeared on the scene. He was utilising buffaloes of the complainant fo-
Own purpose whilst
they were in his custody. The buffaloes were
misappropriation was dishonest. It caused wrongful loss to the owner and misappropriated
accused. wrongful gain to=
13. Offence and
Charge
Whenever a person finds more than
one articles
available, then he finds all articles and is under lying on the road and the oVICr iS L
In case of obligation to return to the true owner or oWner
misappropriation, he would be
offence for separate article have guilty of misappropriation
of each article an ara
been committed. If there are more than all ar
complainant in their own rights as they are one o wever, i
VICw of Sub-
Section 2 of Section 212 of the
they owners of the different articicS
Code of Criminal Procedure, ne
be, for the movable property and shall n rged of On
gross sum or, as the case
offence within the may
meaning of Section 219 of the Code of Criminal oc
A trial on the
Proccaur
charge of misappropriation ofa sum
was tried for a gross sum is not barred under during the same peirespectofwho
trial is
being held was not included in Section 300 when the amoun
subsequent trial is not for the same the gross sum. The reason is ud tortior.

A
Where the previous trial
offence as formed the subject previous trial. but
was
was
TOr was not for a dates

23 misappropriation of specific
gross sum TWO

of money misappropriaucu
tor

sums a frest
24. Emperor vs.
Mahadeo received on specific dates,
Mohari Lal, 42
C.W.N.
Govind garar,
Nagara AlR 1930 sp
783. Bom. 176: 32 Bom.