Theft

Prof. S.M. Aamir Ali

Regulation of the administration is mandatory for the human society. It requires the
protection of not only the person as an individual but also their property. Therefore,
all systems of jurisprudence have made provision for its protection from the earliest
times. Provisions for the violation of property rights have been provided in civil law
and remedies are sought by private individual in civil court to obtain specific relief.
Thus, Chapter XVII (378- 382) of Indian Penal Code,1860 deals with the Offences
Against Property .
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.
Section 378 The Indian Penal Code
378. Theft.—Whoever, intending to take dishonestly any moveable 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.
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 affects 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.

Illustrations
(a) A cuts 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.
(b) A puts a bait for dogs in his pocket, and thus induces Z’s dog to follow it.
Here, if A’s intention be dishonestly to take the dog out of Z’s possession without
Z’s consent. A has committed theft as soon as Z’s dog has begun to follow A.
(c) 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.
(d) A, being Z’s servant, and entrusted by Z with the care of Z’s plate, dishonestly
runs away with the plate, without Z’s consent. A has committed theft.
Theft under IPC
We generally describe theft to be the act of stealing property belonging to somebody
else. However, theft under IPC has certain specific requirements and ingredients.
According to Section 378, theft means dishonestly taking any movable property out
of the possession of a person. This taking must always be without the concerned
person’s consent. Therefore, in order to constitute theft under IPC, the following
conditions must exist:
(1) The offender must have a dishonest intention to take property;
(2) The property in question must always be a movable property and not
immovable;
(3) The offender must take the property out of the other person’s possession without
consent; and
(4) The offender must move the property to complete its taking.
All of these requirements must exist in order to complete the offence of theft. If
anyone of them is missing, the offender is not guilty of theft. For example, a person
may take and move somebody else’s property thinking it actually belongs to him. In
this case, since the offender moved the property as a mistake, he did not commit
theft.
Dishonest Intention
Section 24 of IPC provides that dishonesty means the intention of wrongful gain or
wrongful loss. Section 23 of the IPC provides the definition of both wrongful gain
and wrongful loss. Wrongful gain means gaining any property unlawfully, the person
who is losing the property is the legal owner of such property. Wrongful loss means
the loss brought about by unlawful means.
In the case of M/s. Shriram Transport Finance Co. Ltd. v. R. Khaishiullah Khan [1],
payment for a hire-purchase agreement defaulted and the property was seized and
the court held that it would not constitute theft as the financer was entitled to seize
such property. Further, there were no dishonest intentions.
Movable Property
Section 22 of IPC has provided the definition of movable property; means that 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.
Immovable property can be converted into movable property and once it has been
converted such property can be stolen.
Electricity
Electricity has been ruled to be immovable property according to the case of Avtar
Singh v. State of Punjab [2] but stealing of electricity has been made a punishable
offence. The punishment for theft is provided under section 35 of Electricity Act,
2003 as up to three years of imprisonment with or without a fine.
Data
Theft of personal data has become one of the biggest issues of the current age. Data
is intangible since it is only information thus it is incorporeal and does not come
under the definition of theft given in Section 378 of IPC. If data is stored on some
tangible object like a hard drive, then theft of such an object would be covered under
this Section.
Crops
Growing crops are attached to the earth and hence cannot be considered movable
property but once they are converted into movable property by removing them from
the earth, it can be considered as theft.
Human Body
The human body cannot be considered to be movable property and hence Section
378 cannot be applied in case of theft of human body. But in case of instances where
the body has been preserved or the skeleton has been kept, then such property is
covered by Section 378 and falls under the definition of movable property.
Property in possession
In order for theft to have occurred, the property being stolen must be taken from the
possession from the owner of such a property. If the property does not have an owner
then such property cannot be said to have been stolen if a person acquires such
property. For example; if A finds a gold nugget in a stream and he takes the gold
home, it cannot be considered theft as the gold nugget has no owner.
No Consent
The property that is in question must have been taken without the consent of the
owner of such a
property. The consent can either be implied or express. The consent given must also
be free meaning that such consent must not be acquired through means of coercion
or fear of injury or misrepresentation of facts.
Consent given during state of drunkenness or intoxication as well as consent given
by a person of unsound mind cannot be considered to be a valid consent.
[3]
In Pyarelal Bhargava v. State, AIR 1963 , a govt. employee took a file from the
government office and presented it to B, and brought it back to the office after two
days. Held that permanent taking of the property isn’t required, even a temporary
movement of the property with dishonest intention is enough and thus this was theft.
Punishment for Theft
Punishment for theft is provided under Sections 379-382. Different punishments
have been provided for different circumstances of theft are mentioned as below:
Section 379- Punishment for theft
A person committing the crime of theft may be imprisoned for a period of time that
may extend up to 3 years or a fine or both.
Classification of Offence
The offence under this section is cognizable, non-bailable, compoundable by the
owner of the property stolen with the permission of the Court , and triable by any
magistrate.
Jurisdiction
As per Section 181 of the Code of Criminal Procedure 1973, the offence of theft may
be enquired into or tried by court within the local limits of whose jurisdiction such
offence was committed or the property stolen was possessed by the thief or by any
person who received or retained the same knowing or having reason to belief it or to
be stolen.
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 dwelling. Theft of articles from the roof of
a house fall under this section. [Satho Tanti vs. State of Bihar] Motive is to give
greater security only to property deposited in a house and not to the in 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.