Theft

Introduction

‘Theft’ is defined under Section 378 of the Indian Penal Code, 1860, which states that any person with a dishonest intention to take any movable property out of the possession of a person without the person’s consent to whom it belongs moves that property is said to commit theft.

Illustrations

• A cut down a tree on Z’s ground, with the intention of dishonestly taking the tree out of Z’s possession without Z’s consent. Here, as soon as A has severed the tree in order to such taking, he has committed theft.
• A meets a bullock carrying a box of treasure. He drives the bullock in a certain direction, in order that he may dishonestly take the treasure. As soon as the bullock begins to move, A has committed theft of the treasure.

Explanation 1

A thing which so long as it is attached to the earth is not movable property is not the subject of theft, but it becomes capable of being the subject of theft as soon as it is separated from earth.

Explanation 2

A moving effected by the same act which affects the severance may constitute theft.

Example – The sale of standing trees is not theft, but carrying away of them after falling them down is theft.

Explanation 3

There are three modes of moving property.
(1) by actual moving.
(2) by separating it from any other thing.
(3) by removing obstacles that prevented it from moving.

Explanation 4

A person is said to move everything which is more due to the motion of animals caused by that person.
Explanation 5

Consent may be express or implied and it may either by the person who has the possession or by any person having authority to express or implied to give consent.

What are the Main Ingredients of Theft?

1) Dishonest intention to take property-

• Intention must be dishonest, and it must exist at the time of taking of the property.
• Section 24 of the code defines ‘Dishonestly’ as whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person.
• The intention to take dishonestly exists when the taker intends to cause wrongful gain to one person or wrongful loss to another person.
• It is not necessary that the taking must cause wrongful gain to the taker, it would be sufficient if it causes loss to the owner of the property.
• For example, where the accused took the complainant's car against her will and sold it, he is guilty of theft.

2) Property should be moveable-

• Explanation 1 and 2 of Section 378 makes it clear that things attached to the land may become movable property by severance from the earth, and that the act of severance may of itself be theft.
• For example, A cuts down a tree on B’s ground with the intention of dishonestly taking the tree out of B’s possession without B’s consent. In this case A is liable for theft under Section 379 of the Code.
• It is not necessary that the thing stolen must have some appreciable value, for example, timber (extraction of teak timber without license amounts to theft of government timber), Salt spontaneously formed on the surface of swamp appropriated by government, or idol, electricity etc.
• In Rakesh v. State of NCD of Delhi (2020) case, the Delhi High Court reiterated that in order to fulfill the offence of theft, certain conditions are to be present. The court further held that the most important thing in completing theft is that the accused of theft should remove the movable property with dishonest intention from any other person.

3) The property must be taken out of possession of another person-

• The property must be in the possession of the prosecutor, whether he is the owner of the property or not. Where property belonged to a person who is dead, and therefore, in nobody's possession, or where it is lost property without apparent possessor, it constitutes the offence of criminal misappropriation of property not theft.

4) Property should be taken without the person’s consent-

• If the property of a person in possession is taken without his prior consent (express or implied) it will amount to committing theft. The offence will take place when the offender takes the property dishonestly and without the consent of that person.
• Illustration: S, being R’s friend, enters the house of R and runs away with the ring, which was on R’s table, without R’s consent. S has committed theft. As here R’s consent is not present.
• In K.N. Mehra v. the State of Rajasthan (1957) case, the Supreme Court held that proof of intention to cause permanent deprivation of property or to obtain wrongful gain is not necessary for the purpose of proving dishonest intention. Absence of a person’s consent to whom the property belongs at the time of moving it and the presence of dishonest intention at the time of taking that property are the essentials to commit theft.

5) Property should be moved to such taking-

• Moving a property with a dishonest intention is an initial stage of committing a theft. So, the property should be moved, to commit an offence.
  • Illustration: A goes to B’s house and sees a diamond necklace lying on the table. A hide that necklace at B’s place and thinks whenever he will visit next time. He’ll take it. Here, A commits no theft as the property has not been moved.

What is the Punishment for Theft?

• According to Section 379, whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Kinds of Aggravated Theft

Section 380- Theft in Dwelling house-

• A person committing theft in the dwelling-house of any human, whether it be a tent, house or vessel may be imprisoned for a period of time up to 7 years along with a fine.
  • Explanation: Dwelling house means a building, tent or vessel in which a person lives or remains whether permanently or temporarily. A railway waiting room is a building which is being used for human dwellings. Theft of articles from the roof of a house falls under this section.
    • Satho Tanti v. State of Bihar (1973): In this case, the Patna High Court here held that ‘Motive is to give greater security only to property deposited in a house and not to the immovable property of the person or the party from whom it is stolen’.

Section 381- Theft by a clerk or servant in possession of master’s property-

• If any person who is a servant or clerk commits theft of any property owned by his master, such person shall be punished with imprisonment of 7 years as well as a fine.

Section 382- Theft after preparation made for causing death, hurt or restraint in order to the committing of the theft-

• Any person who commits theft having made preparation for death, hurt or restraint or fear of the death, hurt or restraint for the purposes of such theft or for escape or retaining such property shall be punished with imprisonment for a period up to 10 years along with a fine.
• For example, A commits theft on property in Z’s possession and while committing this theft, he has a loaded pistol under his garment, having provided this pistol for the purpose of hurting Z in case Z should resist. A has committed the offence in this section.

Conclusion

• Theft in general sense and theft in IPC are like two different directions. For theft ownership is not even important. Theft only needs possession. The offence of theft happens on the first moving itself, if that moving is dishonest. Dishonest intentions are must for the offence of theft. Only corporeal property comes under theft. Another factor for the offence of theft is consent. Consent can be implied or expressed. But if without consent moving any corporeal property then this will amount to theft.