Theft, Extortion, Robbery & Dacoity

INTRODUCTION:

Legal and political philosophers debate about the role and reach of the state. Despite
their conflicting opinions about the legitimacy of the state, most of them trace the
origin of state to the necessity of protection of life and property of people. Therefore
intentionally depriving a person of his property without his consent for personal gain
is considered a serious ‘wrong’ which the state undertakes to punish and thereby
justifies its existence. Wrongfully taking away a person’s property for wrongful gain
can be in many forms and is classified and made punishable under the Indian Penal
Code (IPC) under following heads depending on the severity of the offence and harm
caused to the victim:

(a) Theft
(b) Extortion
(c) Robbery and its aggravated form Dacoity (Gang Robbery).

I. THEFT:

Offence of theft in general is defined in section 378 of the IPC. Punishment for the
offence is given is s. 379. Ss. 380, 381 and 382 elaborate some specific situations in
which the offence can be committed and the punishment that can be given in such
specific cases of theft.1Under s. 378:

Whoever, intending to dishonestly take 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.

Therefore to constitute the offence of theft, there has to be

1
S. 380 deals with the offence of theft committed in any building, tent or vessel which is used as
human dwelling or for the custody of property. Such offence is punishable with imprisonment upto
seven year and fine. S. 381 mentions theft by servant or clerk of property in possession of master.
Liable to imprisonment upto seven years and with fine. S. 382 deals with a situation when theft is
committed with preparation to cause death, hurt or restraint in order to commit the theft. This is
punishable with imprisonment up to ten years and fine.
Under section 379 offence of theft is made punishable with imprisonment upto three
years or with fine or with both.

In the examination of offence of theft following concepts become important

(a) What is dishonest intention?

(b) What is moveable property
(c) What is possession?
(d) What is taking?

(a) Dishonest Intention: To constitute an offence of theft it is necessary that

there should be animus furandi or dishonest intention to cause wrongful gain
to oneself and wrongful loss to another.2 How do we determine this animus
furandi? Ss. 23 and 24 help us to some extent. S. 24 defines ‘dishonestly’3 and
s. 23 defines ‘wrongful gain’4 and ‘wrongful loss’5.

If someone genuinely believes a pen lying on a table to be his and takes it, is he guilty
of the offence of theft? The Andhra Pradesh High Court seems to have said ‘yes’ but
the Supreme Court said no in the case of Suvvari Sanyasi Apparao & Anr. vs.

2
This distinguishes theft from mischief. In mischief the intention is only to cause wrongful loss to the
victim without any gain to the accused.
3
Whosoever does anything with the intention of causing wrongful gain to one person or wrongful loss
to another person, is said to do that thing ‘dishonestly’.
4
‘Wrongful gain’ is gain by unlawful means of property to which the person gaining is not legally
entitled.
5
‘Wrongful loss’ is the loss by unlawful means of property to which the person losing it is legally
entitled.
Boddepalli Lakshminarayana & Anr.6 In this case there was a dispute about
ownership of a printing press. Second appellant claiming to be the legal owner of the
press leased it to the first appellant who removed it for his purpose pursuant to the
lease agreement. High Court held him guilty of offence of theft on the ground that ‘to
a charge of theft, the plea that the property was removed under a bona fide claim of
right would not avail.’7 But the Supreme Court admitting the appeal held that it was
‘certainly not the law.’8 ‘It is settled law that where a bonafide claim of right exists, it
can be a good defence to a prosecution for theft. An act does not amount to theft,
unless there be not only no legal right but no appearance or colour of legal right.’9

What would constitute a bona fide claim? Answer was given by Hidayatullah, J. that
there be not only no legal right but no appearance or colour of legal right. This was
explained in Chandi Kumar Das Karmarkar vs. Abanidhar Roy.10 ‘By the
expression “colour of a legal right” is meant not a false pretense but a fair pretense,
not a complete absence of claim but a bona fide claim, however, weak.’ Appellant was
charged with offence of theft for fishing in the Nutan Pukar, a tank. In this case the
appellant was shown as a tenant of Nutan Pukar and hence claimed legitimate right
to fish in the tank. Case of the respondent was that the interest of appellant was sold
in revenue sale and the buyer had got possession of the tank after a decree in title
suit. Respondents had got the possession of the tank from the buyer as a result of
settlement for five years. The case of the appellants was that the buyer had got an
ex-parte decree by fraudulent means and hence it was set aside and the buyer had
given an undertaking to the court that he would not cut any trees on the bank thereby
admitting to the disputed nature of the property. The Supreme Court held that the
facts of the case and conduct of the appellant showed that he had bona-fide belief in
his legal claim over the tank. He genuinely believed that after setting aside the
ex-parte decree and undertaking given by the buyer his tenancy rights have revived.
Therefore he cannot be charged with theft.

On the other hand in the case K.N. Mehra vs. State of Rajasthan11 two cadets of
the air force (one discharged for wrongful conduct and one trainee as navigator) took
an aircraft to Pakistan without any authorization with the apparent purpose of
seeking employment for the discharged cadet. They took the aircraft by
misrepresenting that they had the authorization. It was held by the Supreme Court
that there was a dishonest intention at the time of taking of the property. According
to the court, ‘a person can be said to have dishonest intention if in taking the
property it is his intention to cause gain, by unlawful means, of property to which the
person so losing is legally entitled.’12 The court held that the unauthorized taking had
6
1962 AIR 586, 1962 SCR Supl. (1) 8
7
1962 AIR 586 at 588
8
ibid.
9
ibid.
10
AIR 1965 SC 585
11
1957 AIR 369
12
ibid at 372
given the appellant the temporary use of the aircraft for his own purpose and had
temporarily deprived the owner of the aircraft, the Government of India, of its
legitimate use for its purposes.

Dishonest intention should exist at the time of taking of property. If taking of

property was not dishonest at the time of taking, theft is not committed.13 This was
the defence taken in the K.N. Mehra case, on the ground that the accused had taken
it for training purposes and only later the flight got diverted to Pakistan. Therefore at
the time of taking there was no dishonest intention. However, the facts showed
otherwise as one of the accused was already discharged and the other was scheduled
for training at a later time on another aircraft. There was evidence to show that
discharged cadets wanted to go to Pakistan in search of employment.

(b) Moveable Property: ‘Moveable property’ is defined in s. 22 of the IPC.

According to s. 22 It includes ‘corporeal property of every description, except
land and things attached to the earth or permanently fastened to anything
which is attached to the earth.’ In Avtar Singh vs. State of Punjab14 It was
held that theft of electricity cannot be punishable under the IPC because it is
not a ‘property’ for the purposes of ss. 22 and 378.15 The decision possibly
referred to the ‘incorporeal’ nature of electricity. However, cooking gas has
been held to be subject to theft.16

Explanation 1 states that things attached to earth become capable of theft once
severed from earth. Accused was held guilty of theft when she dishonestly carried
away a hundred carloads of earth from the complainant’s land.17

(c) Possession: Possession is a question of fact of relation between a person and

a thing.18 Savigny identified two elements in the concept of possession; (a)
Corpus Possessionis, effective control, and (b) animus domini, the
intention to hold as owner. Even though this is not a perfect mechanism to
identify possession, the two factors do help in deciding the issue of possession.

In simple terms possession is control over a property by a person which is recognized

by law. The person in possession of something has certain legal advantages. A
person’s right to possess a thing is, however, relative. ‘Possession carries with it the
claim to possession and not to be interfered with until someone else establishes a
superior title.’19 In this way possession is different from ‘custody’. If ‘A’ gives his coat
to ‘B’ for some time for use out of friendship, ‘B’ has only custody of the coat. If ‘A’
takes his coat back without the consent of ‘B’, he is not guilty of theft because ‘B’ did

13
May amount to criminal misappropriation in some cases.
14
AIR 1965 SC 666
15
It is a theft by way of ‘fiction’ under the Electricity law
16
See K.D. Gaud, Textbook on Indian Penal Code, p. 739. White, (1853) 6 Cox 213.
17
Krishna Reddy v. Munnippa Reddy AIR 1943 Mad 34.
18
Dias, Jurisprudence (5th ed.) 290
19
ibid.
not have possession of the coat but only custody of the coat. However, if ‘C’ takes it
from ‘B’ without his consent, he would be guilty of theft because vis-à- vis ‘C’, ‘B’ has
possession over the coat.

‘Possession’ therefore, would occur only when the law recognizes the right of a
person to keep control over the property. If a person pawns his jewelry with ‘A’ and
takes it away one day without the consent of ‘A’ he would be guilty of theft. In this
way the owner of a property can be guilty of theft if the law recognizes the right of
someone else to possess it.

In Pyarelal Bhargava v. State of Rajasthan20 appellant was superintendent in

the chief engineer’s office at Alawar. At the instance of his friend, the appellant got a
file from the secretariat through a clerk and made it available to his friend for the
purpose of changing and removing certain documents from the file. Contention of
the appellant was that there was no theft because appellant was superintendent in
the office and as such he was in possession of the file and therefore he could not have
taken the file out of himself. But the court rejected this argument stating that the file
was in the secretariat of the department concerned which was in charge of the chief
engineer. The appellant was only one of the officers working in that department and
therefore it cannot be said that he was in legal possession of the file.

(d) Taking of Property: Theft is complete the moment goods are moved out of
the possession of the victim with dishonest intention. It need not have come
into possession of the accused. ‘What the law contemplates is the intention to
take and the actual taking is a step beyond such intention and not relevant for
the purpose of definition of theft.’21

Taking does not need to be permanent also. In Pyarelal appellant had taken the file
for one day only. But the Court held that to commit theft one need not take the
moveable property permanently out of the possession of another with the intention
not to return to him. Definition of theft under s. 378 would be satisfied if the
property is temporarily taken out of the possession of a person though the accused
intended to return it later on. Wrongful loss need not be caused by permanent
deprivation of property but may be caused even by temporary dispossession. A
temporary period of deprivation or dispossession of the property of another causes
loss to the other.22 Similarly in K.N. Mehra v. State of Rajasthan23 taking of
aircraft temporarily with dishonest intention was held to satisfy the requirement of
offence of theft under s. 378.

20
1963 AIR 1094
21
K.D. Gaud, Textbook on Indian Penal Code(Universal Law Publishing, 2009) at 688
22
See illustrations (b) and 1 of s. 378.
23
1957 AIR 369
II. EXTORTION:

Extortion is dealt in ss. 383 to 389 of the IPC. S. 383 defines extortion as
intentionally putting a person in fear of any injury to that person or any other and
thereby dishonestly inducing that person to deliver to any person property or
valuable security or anything which can be converted into valuable security. Person
accused of extortion can be punished with imprisonment up to three years or fine or
with both.24 Following aspects require clarity in deciding existence of extortion:

(a) Fear of Injury

(b) Delivery property or valuable security.

Fear of injury can be to the victim or to any other person. To constitute fear of injury
the threat should be real so as to unsettle the mind of the victim so that the action of
the victim does not remain voluntary. Mere threat of divine displeasure is not
sufficient. Fear of injury may be of physical injury or injury to character or fear of
criminal prosecution whether true or false. If threat of prosecution is for an offence
punishable with death or imprisonment for life or offence under s. 377 of IPC, s. 388
makes it punishable with imprisonment up to ten years or imprisonment for life. If a
person is put under fear of death or grievous hurt, the accused can be punished with
imprisonment upto ten years and fine.25

Inducement for delivery of property is necessary for the offence of extortion. Merely
taking off a thumb impression by force is not extortion if there is no delivery of
property. However, ‘delivery’ of property does not mean it has to be moveable
property. The ‘words ‘deliver’ or ‘delivery’ are used in the English language for both
moveable & immovable property.’26 Therefore in Hyderabad State v. Beerappa
& Ors.27 where respondents were accused of rioting with deadly weapons and
voluntarily causing hurt to a person to compel him to give their shares in the house &
mother’s landed property, it was held to be extortion under s. 319 of the Hyderabad
Penal Code which was similarly worded to s. 383 of IPC.

Extortion is different from theft and cheating in following factors:

(a) In theft property has to be moveable but in extortion it can be either moveable
or immoveable
(b) In theft property is taken away without the consent of the victim. In extortion
property or valuable security is delivered by the victim under fear of injury. In
cheating, consent of the victim is obtained by fraud.

24
Attempt at extortion by putting a person in fear of injury is punishable with imprisonment up to two
years and/or with fine under s. 385.
25
Attempt of such extortion is punishable imprisonment upto life under s. 389.
26
Hyderabad State v. Beerappa & Ors.
27
AIR 1951 Hyd. 91
III. ROBBERY:

In all robbery there is either theft or extortion. Theft becomes robbery when for the
purpose of committing theft or in the process of theft or in carrying away or
attempting to carry away property obtained by theft the accused causes or attempts
to cause death, hurt or wrongful restraint or fear of instant occurrence of any of the
three.28 Extortion becomes robbery when offender is in the presence of victim29 At the
time of commission of offence the victim is put in fear of instant death, instant hurt
or instant wrongful restraint either for himself or some other person and in this way
the offender induces the victim to deliver the thing extorted.30 Robbery is punishable
with rigorous imprisonment which may extend up to ten years and fine. If robbery is
committed on the highway between sunset and sunrise imprisonment may extend up
to fourteen years.31

In Harish Chandra v. State of U.P.32 appellant forcibly snatched a wrist watch

from the victim in a train and he with the co-accused was attempting to run away
with the watch. When the victim raised an alarm, the appellant slapped him and the
co-accused hit him with a stick. Appellant argued that the case did not fall under
section 390 because when the appellant slapped the victim the watch was already
stolen and it could not be said that the hurt was caused to the victim in order to
commit the theft, or in committing the theft. However, the Supreme Court rejected

28
S. 390 IPC
29
The offender is said to be present if he is sufficiently near to put the other person in fear of instant
death, of instant hurt, or of instant wrongful restraint. Explanation to S. 390
30
S. 390 IPC
31
S. 392. Attempt to commit robbery is punishable with imprisonment which can be extended up to
seven years and fine under s. 393 If hurt is caused during robbery or in attempting to commit robbery,
imprisonment may extend upto ten years with fine under s, 394.
32
AIR 1976 1430
this argument on the ground that hurt was caused when the accused were trying to
carry away the stolen property and because the victim had raised an alarm, he was
slapped so that the accused may be able to carry away the stolen property. Therefore
the case was clearly within the purview of s. 390.

Robbery becomes dacoity (or gang robbery) when it is committed by five or more
persons conjointly with a common intention.33

IV. Dacoity:

Dacoity is punishable with imprisonment up to ten years and fine. When five or more
persons assemble for the purpose of committing dacoity they all are liable to
imprisonment up to seven years and fine. If a person belongs to a gang of persons
associated with habitually committing dacoity, he may be punished with
imprisonment for life or rigorous imprisonment up to ten years and fine.34

If murder is caused during dacoity it is punishable with death or imprisonment for

life or rigorous imprisonment up to ten years and fine35. The famous case of dacoity
with death is that of Om Prakash and Ors. v. State of U.P.36 where nine armed
persons broke into a house in the night. They severely assaulted the master of the
house who as a result of injuries fell down dead.

33
S. 391 IPC.
34
S. 400. If a person belongs to any wandering or other gang of persons associated for the purpose of
habitually committing theft of robbery (but it is not a gang of thugs or dacoits) he may be liable for
imprisonment up to seven years and fine (s. 401).
35
S. 396 of IPC
36
(1983) 2 SCC 358.
They also assaulted his wife and brother-in-law and ran away with ornaments, cash
and clothes. All the nine accused were punished under s. 396.

If deadly weapons are used during robbery or dacoity and there is death or grievous
hurt or attempts to cause death or grievous harm, the offender would have to
undergo a minimum of seven years of imprisonment.37 Same punishment is
prescribed under s. 398 of IPC if the offender is armed with a deadly weapon during
an attempt of robbery or dacoity.

37
S. 397 of IPC