March 2, 2021

Theft under Indian Penal Code (Section 378)

What is Theft?

The dictionary meaning of Theft is “the act of stealing”, specifically “the felonious taking and removing of personal property with intent to deprive the rightful owner of it.” The offence of theft is provided in Section 378 to Section 460, Chapter 17, Offence Against Property, of Indian Penal Code, 1860. Theft, in layman terms means the taking of a person’s property without the consent of the owner and Section 378 of the Indian Penal Code, 1860 (IPC) has provided a proper legal definition of theft.[1]

Section 378[2]

Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.

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Explanation 1.—A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.

Explanation 2.—A moving effected by the same act which effects the severance may be a theft.

Explanation 3.—A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it.

Explanation 4.—A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.

Explanation 5.—The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied.

Under Section 378 theft is defined as “the act of taking any immovable property with a dishonest intent and without the consent of the owner of such property.

1. Intention to take dishonestly

In order to constitute theft the presence of dishonest intention is essential. Intention is the gist of offence theft. It is the intention of the taker which must determine whether the moving of the thing is theft.[3]

Taking the definition of Dishonestly in Section 24 and Wrongful gain and Wrongful loss in section 23 together a person can be said to have dishonest intention if in taking a property, it is his intention to cause gain by unlawful means of the property to which the person who is gaining is not legally entitled.[4] Where one can show that the property has been removed in the assertion of bona fide claim or right[5] a dishonest intention cannot be inferred. In M/S. Shriram Transport Finance Co. Ltd. v. R. Khaishiullah Khan[6] payment for hire-purchase agreement defaulted and the property was seized and in this case the Court held that it would not constitute theft as the financer was entitled to seize such property. Further there was no dishonest intention.

Taking without any dishonest intention is no theft that is the taking must be dishonest and the dishonest intention must exist at the time of taking.[7] This intention is known as amicus furtandi and without it the offence of theft is not complete.[8] So, mens rea and dishonest intention are ingredients of theft.

2. Movable Property

The subject of the theft must be movable property it means corporeal property of every description except land and things attached to earth or permanently fastened to thing which is attached to earth. Section 22 of Indian Penal Code has provided the definition of movable property; any corporeal property except land and things permanently attached to the earth. Only movable property can be stolen as it is impossible to take immovable property away.[9] A tree severed from earth can be a subject of theft,[10] so a tree blown down by wind and storm may also become a subject of theft as it is movable property as contemplated by the section.

Further, immovable property can be converted into movable property and once it has been converted such property becomes capable of stealing. In Avatar Singh v. State of Punjab[11] Electricity was categorised as immovable property but stealing of electricity has been made punishable offence by the Indian Electricity Act, 1910 which was letter replaced by Electricity Act, 2003.

The human body cannot be categorised as movable property so, the Section 378 cannot be applied in case of theft of human body[12]. However, where the body is kept and preserved or the skeleton has been kept, then such property is covered by section 378.

3. Possession of Property

If a property belongs to no one there cannot be theft that is res nullius (things belonging to no one). The offence of theft comes in to existence when property is removed from somebody’s possession without his consent.[13] There cannot be a theft of a dead body buried in a cemetery or theft or other thing which belongs to no one. However, if a corpse lying out of the deceased’s house for being taken to buried ground, it is seized by some person and carried without the consent of the relatives of deceased and thrown into river, it is no theft under section 378 but it is an offence under Section 297(offering indignity to a human corpse) Indian Penal Code.[14]

In state of Maharashtra v. Vishwanath,[15] SC held that even a transient transfer of possession of property is sufficient to meet the requirements of 378. In a case a debtor gave property to his creditors. He subsequently came to know that the debt against which he gave the property was a time barred debt. He therefore charged his creditors for theft. The court held that the charge cannot sustain because of the existence of the full and unqualified consent of the debtor at the time of giving away of the property.[16]

4. Taking Without Consent

It is important to bring a suit under theft that the property in question must have been taken without the consent of owner of that property. The removal of property must be does without express or implied consent of the person in possession. It is important that he must have physical control over it, his possession may be rightful or wrongful.

The consent given should also be unqualified and should not be given under improper circumstances. The consent given in the state of drunkenness and intoxication also consent given by a minor or person of unsound mind is of no avail and not a valid consent. The consent shall also be given without any undue influence or coercion. Also, consent given under misrepresentation is not a valid one.[17] Where property is transferred by a debtor to his creditor under debtor’s full and unequivocal consent that does not make the taking of property by the creditor a theft even though the debtor afterwards find that the debt was a time barred one.[18]

5. Moves that property

To constitute theft, dishonestly moving the property out of the possession of the person without that person’s consent is essential ingredient.[19] To constitute theft it is not necessary that the thing moved should be carried away, or carried off.[20]

The offence of Theft under Section 378 of Indian penal Code is cognizable and not bailable, it is compoundable when the value of property does not exceed Rs. 250 and when Court’s permission is obtained, triable by any magistrate. It the property in question is below worth of Rs. 200 then offence is triable summarily.

In a case a boy belonging to a middle class family was sentenced to two years imprisonment with fine of Rs. 2000 for scooter theft and six months, imprisonment and Rs. 5000 fine for car lifting. Both sentences were concurrent. Case came to SC after nine years; accused already went six months imprisonment and also got married and had children by then. His uncle guaranteed his good behavior. The Hon’ble SC reduced this sentence to the extent already undergone but fine imposed not interfered with.[21]

Punishment

Section 379: Punishment for theft

Section 379 of IPC, 1860 provides for punishment for theft with imprisonment of three years or more or fine or both. In proper cases the punishment can be reduced.

Section 380: Theft in dwelling house, etc.

A person who commits theft in any building, tent, vessel which is used as a human dwelling or used for the custody of property, is punishable with imprisonment for a term which may extend to seven years with fine.

Section 381: Theft by Clerk or Servant of property in possession of Master

Any Person being a clerk or servant commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine.

Section 382: Theft after preparations made for causing death, hurt or restraint in order to the committing of theft.

Any person who commits theft, having made preparations for causing death or hurt or restraint or fear of any of these in order to commit theft or in order to the effecting of his escape after the committing of such theft or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years with fine.

Distinction between Theft and Mischief

Mischief is provided under Section 425 of IPC, by committing mischief one does not gain anything, he only causes loss to the other, on the other hand by committing theft, the thief causes loss to another and gains the property.[22]

Distinction between Theft, Extortion and Robbery

Theft is when someone moves a movable property from one’s possession without his consent with dishonest intention. Extortion is defined under Section 389 of IPC as appropriation of property by coercion. The essential ingredients of extortion include:[23] In Romesh Chandra Arora v State[24] the accused had written letters to one X enclosing photograph of his daughter in the nude and demanded hush money from X and threatened X that he would circulate them to the relatives of X if the money was not paid. He was convicted for extortion and criminal intimidation.

(1) intentionally putting a person in fear of injury;

(2) the purpose of which is to dishonestly induce the person put in fear and

(3) to deliver property or valuable security.

Robbery provided under Section 390, is an aggravated form of theft, so if someone attempts to cause any hurt, wrongful restraint, or death in order to commit theft, it is known as robbery.[25] Extortion becomes a robbery when the three conditions are satisfied.[26]

1. when a person commits extortion by putting another person in fear of instant death, hurt, or wrongful restraint, and

2. such a person induces the person put in such fear to deliver the property then and there and

3. the offender is in the presence of the person put in such fear at the time of extortion.

Theft may occur only of movable property whereas, extortion may occur of movable or immovable property, and in the case of both robbery and dacoity, it may be committed with respect to immovable property, where it is in the form of extortion and not otherwise. There is no element of force or compulsion, in case of theft; force or compulsion exist in extortion, the person being put in fear of injury to himself or to any other persons.[27]

“According to a report[28] in last 10-15 years’ crimes against property are on increase. Details of crime registered are sent regularly to National Crime Record Bureau. Information published by bureau up to year 2001 it is perceived that the lowest percentage of detection was 15.6 per cent in the year 1993. Maharashtra tops in this crime, U.P. comes at number two and Gujarat at number three. Lowest percentage of detection of theft crime is in Goa, it is state wise only 4.0 per cent.”

References

[1] Akshita Piplani, Theft, LTJ, March 20, 2019, http://lawtimesjournal.in/theft/

[2] Section 378, Theft, India Code,

[3] State of Gujarat v. Chamkalal Odhavji, X GLT 12

[4] K. N. Mehra v. State of Rajasthan, AIR 1957 SC 369

[5] Chandi Kumar v. Abanidhar Roy, AIR 1965 SC 585

[6] 1993 (1) KarLJ62.

[7] B. M. Gandhi, Indian Penal Code.

[8] Chandi Kumar Daskarmakkar v. Abanidhar Roy, (1965) 1 Cri LJ 469

[9] Neitseizonous Solo, Theft| Sec 378 Indian Penal Code, 1860, Criminal Law Review, June 23, 2018.

[10] Balos, (1882) 1 Weir 419

[11] AIR 1965 SC 666

[12] Neitseizonous Solo, Theft| Sec 378 Indian Penal Code, 1860, Criminal Law Review, June 23, 2018.

[13] Gangaram, 9 Bom 135

[14] B. M. Gandhi, Indian Penal Code, pg. 539

[15] 91979) 4 SCC 23

[16] (1904) 1 All LJ 508: 1 Cri LJ 803

[17] Parashottam, (1962) 64 BLR 788

[18] (1904) 1 All LJ 508: 1 Cri LJ 803

[19] State of Maharashtra v. Vishwa Nath Tukaram, (1979) 4 SCC 23: 1979 SCC (Cri) 893.

[20] B. M. Gandhi, IPC, pg. 540

[21] (1980) 2 SCC 282: 1980 SCC (Cri) 426: 1980 Cri LJ 444.

[22] Gajadhar v. State, 1917 Cri LJ 1361 (UP)

[23] Dhananjay @ Dhananjay Kumar Singh v State of Bihar, (2007) 14 SCC 768.

[24] AIR 1960 SC 154.

[25] What is the difference between theft, robbery and dacoity?, Nyaaya, https://nyaaya.org/questions/theft/what-is-the-difference-between-theft-robbery-and-dacoity/

[26] Ranjana Maharda, Distinction between Theft, Extortion, Robbery and Dacoity, Lexquest, Sep 18, 2015

[27]Ranjana Maharda, Distinction between Theft, Extortion, Robbery and Dacoity, Lexquest, Sep 18, 2015

[28] Sandesh (Newspaper) Daily, 9-4- 2004


Author Details: Aparna Verma (Pt. Motilal Nehru Law College)

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