1.

A\\I 01 TR1~1FS & CHIMlNOLO( iY jScr, 17Yi to l XfJ

Sl'ction 378

Thcfl.- Whocvc,: intending take dishonestly any moveahle property

to
ow (f th(' 1,ossrss1nn (f any pC'rsnn without that person :~ consent, moves that
p1\1rcrty in mYirr to such taking, is said In commit thefl .
Exrlanotion I. ---A thing so long as it is aftached to the earth, not being moveable
p1Y1prrry. 1s not the sub1ecr of rh~fr: but it becomes capable of being the subject nf theft
as snon as 11 1s severed from the earth.
Explan ation 2. - A moving effected by the same act which effects the verance. may
be thef t.
E>.:planation 3. - A person is said to cause a thing to move by removing an obstacle
whrch prevented it f rom 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 the 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 expressed 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 Zs ground, with the intention of dishonestly
taking the tree out of Zs possession without Zs 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 Zs dog to follow it. Here
if As intention he dishonestly to take the dog out of Zs possession without Z 's consent. A
has committed theft as soon as Zs dog has begun to follow A.
(c) A meets of 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 Zs servant, and entrusted by Z with the care of Zs plate, dishonestly
runs away with the plate, without Zs consent. A has committed theft.
(e) Z, going on journey, entrusts his plate to A, the keeper of a warehouse, till Z
shall return. A carries the plate to a goldsmith and sells it. Here the plate was not in Zs
possession. It could not therefore be taken out of Zs possession, and A has .not committed
theft, though he may have committed criminal breach of trust.
(f) A find a ring belonging to Z on a table in the house which Z occupies. Here the
ring is in Zs possession and if A dishonestly removes it, A commits thejr.
(g) A finds a ring lying on the high road, not in the possession of any person. A by
taking it, commits no theft, though he may commit criminal misappropriation of property.
(h) A sees a ring belonging to z lying on a table in z~, house. Not venturing to
 w
FOR T H F P r -~J \ I
PU N I SH M E N T
------
I.

.1~0 1__ __ --
, ,,.,n- ' d et ec t/o I I h
a r o·f .vearch '-' idev 1"1 ~ f'/f1Y.' ,n
.
1 ~ I<~ m ed ro te ly .f or fe C.(
n
_
I e ·,w ;m er he ,. d
rJy z W
1.. h
r 1 1 1;onh /JJ ;m pm ba ble th a t it w il l ev
, / [J, 1 1 e l11t en 11 rm r,J
."· • ' Jo tm
:-' .,,11r1or,c,,_ ,., .• 11 n th e I sJ sf or ao ff e · fl err? A a,
an d se ll ing /t w he
J

;7/ )/ b
e hi d in g p la ce os ,,., n
.. ,m th t.
11
11 ,i-' 1.1,
/11
11·h
,r
N' l
•·111 c 1
oving th e ring , co
m m it s th ef
. ..h.
,1 !'. , rh<' '
• ·
1t·1/I,~ 1 ( fi /'.~( !11 h Z . a 1e · well er to be regula ted . Z ca rrte ,v to ,vh.vh op A nfJ ,
1' · ,,c ? · t .
,

aled to .J'
h . h th e jeweller might law'J'rully d e ai n I e w ot ch o r;
J

; · en hi s w b fi
tf1i' ,, , .
A de ,v·eweller an y e t o r k h • w rc z 'v h and . an d co rr /f7 d
(i) l ta es is watch by force ou t oi f CJ ·

the J e shop open y,h ,s c.ind a ss au I t. has nrJr

J

·il1P. t,J en ten· th y av e co m m

.
it te d criminal tresp a·
11 • ·t)'
A , though he m h . h e d id a estly.
as not done dishon
,1 .
..,cc1111 H, e1.e at w
,r,', inasmuch as w
the watch lawfu lly
,1 , as
,11 111·a)'-
·,r ed t11 eJ . .
z fio r repa1rmg t e watch, h an d if z re ta in s
. . .
-0111"11
ow es m on ey to ou t o f z s po ss es sion , with th · e intention ho
f
. A th e w at ch m h
i
(J)rit_.v fior the debt.
, a n d A takes .
hi s de bt , he commits th :J' ,
e++ inas uc as e
cu ri ty fo r
cu er ty as a se
a se iv . . g~ z 0'Jr the pr op
depr in .
ssession withou t
., dishonestly Z, take s it ou t o f Z' s po
rakes I
if A _ ha vi n~ p o w n ed hi s watch to ch , he co m m it s theft, th ough the
(k) Again, . the wat
vr ng p a id _w ha t he bo rr ow ed on onestly.
Zs consent not ha
ty , rn as m uc h as he take 1t dish with
h ·s his own prop er
s po ss es si on w it hout Z's consent.
watc l
ut of Z restora ti on. H er e A
ta ke s an ar ti cl e be lo ng in g to Z o a re w ar d fo r its
(/) A om Z as
o f ke ep in g it un ti l he ob ta in s fr
the intentio n
ef or e co m m it te d theft.
takes dishonestly :
A h a s th er
li br ar y in Z s ab sence, and takes
to Z s
on fr ie n d ly te rm s with Z , go es in m er el y o f reading it, an
d with
) A be in g e pu rp os e
(m
ut Z s ex pr es s co ns en t fo r th
m ay ha ve co nc ei ved that he had
away a book witho it is probable, th
at A the.fr.
io n o f re tu rn in g it. H er e,
s im pr es si on . A has not comm itted
the inte nt was A
us e Z s book. If this o-ws co
Zs impl ie d co ns en t to
ey , fo o d a n d cl othes, which A kn
mon orised
as ks fr o m Z s w if e. Sh e g o es A a y co nc ei ve 'th at Z s wife is m ,th
(n) A th at A m
H er e it is pr ob ab le d theft.
belong to Z he r hu sb an d.
im pr es si on . A ha s n o t co m m it te
If this w as A s s to
to give away alms. va lu ab le pr op er ty, which A kno w
gi ve s a ority f ro m Z to gi
ve.
th e p a ra m o u r o f Z s wife. Sh e sh e ha s n o t au th
(o) A is to b e su ch pr op er
ty as
u sb a n d Z , a n d
belong to her h es tl y, h e co m m it s
th ef t.
If A takes the p ro p er ty di sh on
Z to A s o w n pr op er ty takes tha_t
g to
fa it h, b el ie vi n g p ro p er ty be lo ng in sh on estly, he does not
co mmlf
(p) A in g o o d n o t ta ke di
es si on . H er e a s
A do es
property ou t os f B po ss
· '
theft.

Section 379
it s th e ft sh a ll be punished w i
en t fo r th e ft .- W h o e v e r comm a y e x te n d to three ye c
i!n ~ unishm w h ic h m
t o f e it h e r d e sc ri p ti o n fi o r a term
!]Jr~sonmen
or Withfirn.e, o r with both. ng, filchery, fraw
rceny, felo nio u s taki
- -h11rela ry, la
1i1t ;11r i 11{1I J1J{' ,.,~,.'11 ►- ,, m1 •1l l , . . ,~r•rrmr,-,t,r,or, rnl 'h ,..-~, f H"'l (l/ 'll' ' ~ ,,.,.,,,, , ,,, .. ,,, .,

. ,,i.1,,., q,-,,/,,,r · ,,·, 11t1,nc. '~'" '' ,i .,. rtif/.{:,hd rrt~m,~

'
r ,,--ri.J!n r 11i--atrt ( o,.,,rt~, lflli t1 ,., I l'1l1l Ml mm'>"',.() (,,rn»do ( ( f ,,,,,1,f'l I Ji,1 lrll!(H /n~
1•~ "l fnt11' / ll( (I ' ,mm lu 1 .~ r ..rir r 11) 1 't4 , ,,., t))? mtt»lw1, of Jteo/,n~ H tluH

SN'tion 3~0

Theft in dwelling house, etc...-Whoever commits theft in any buildmg,

1cr-u or vessC'i, lv}uch b11,ldmg, tent or vessel is used as a human dwelling. or
u_r.cd_for the cwtoi~r ofproperty, shall be punished with imprisonmenl of either
descnptwnfor a term which may extend to seven years, and shall also be liable
to fine.
SYNOPSIS
1. Scope 35. Illegal Demand for Property
2. Ingredients 36. Theft by a trespasser
3. What is theft 37. Share certificates
4. lntention & Theft 38. Certain type of Thiefs
Theft against himself
5. (i) Store Sneaks
Dishonestly and Fraud
6. (ii) Purse-Snatchers
Out of possession of any person
7. (iii) Pickpockets
Under section 22 Movable Property
8. (iv) Bag-openers
Offences against property in
9. (v) Patch-pocket worker
common law (vi) Seat-tipper
(i) Section 1-Historical Outline (vii) Pit-worker
(ii ) Section 2-Statutory Definition (viii) Pants-pocket worker
(iii) Section 3-Possession in (ix) Lush-workers
Common Law (x) Auto thiefs
I 0. Cases 39. Robbers
I l. Theft in Enterprises, Organisations 40. Suggestions
and Departments Committed by 41. American Law
Public Servant 42. Appropriation
12. Theft in vessel.jurisdiction 43. Property
13. Taking need not be with intention of 44. Larceny
retaining property permanently 45. Where there is no Bailment
14. Oysters 46. Facts which Negative an
15. Abandoned property Apparent Consent
16. Property may be valueless 47. Consent of the owner implied
17. Procedure when lost goods are found
18. Legal presumption from possession 48. Property under Common Law
19. Presumption against head of family 49. Characteristics of such things
20. Joint Possession a matter of law
21. Restoration 50. The thing must be Tangible
V ., tf'
l ~(tl

0 1 d<- r
,.. . rt~ft·rdin~ u. hith ~\. n,_.. t\f 'I ,

,~
,., ,,,~r•
t,r rn
.
'' · 11<lf
•~2 . Th. u,,"'"ll "'"~' h, . 111ri• , ' "'-

"'"' 11 .0 Hoo~(' ·~~4·l •pp o~~ . ' """f ntt

. . ,,,nR "'"' ,,w ,,....
fl"•t· 'n~f! of Theft in EnRlAnd
1
,1 I . n~, . . ~,,o. n" or' f' '#t riflq {'.-

"w"" q
,,, •1·.-11 ,. ,.1'1,
· 11,r jn2 of \ ' and ~nd Buildin ~ _ ..~tr van t .. ro ~
, ''hl" l'~
u
•ii
:" 'r\-fr"" ct;~ l i ft 55. Th~ th· n,u ,t h .
- '"'"'
t< l'<'(l
,·rt. ,•
'"l
S6 . Chl\rActe n1t1 · . l\v,. ,,,m., v ,11 1
c, whi d
..

.. ., .. ci th•
thing not Iarc,. nAble ' , r.-1111
:~ f hrft of ·wntc r 11 ('
57 . Possession , -'lmmn,, l. i,w
:S l~llS . . .
·'0. ~,rrt nnt ~ . 58. Human Body
: , ~ ·al of pro per ty by wif e 59 . Abetment
R rmO ' pt to com mit. thefit
.lO.
·q _,\ttf'JT\ 60. Computer crim e and The Inf flrnu1.tion
.
- · _t Hectual Pro per ty Techno 1ogy Act , 2000
,2. Jn e . . h " 6
: , ··Technical kno w- ow 1. Relevant provisions of The Information
; 4: Blackmail Tec hno logy Act , 2000

J. Scope
Section 3.78 defines as to when a
person has committed a ' th eft' • Whil e Sectmn 37Q
defines its punishment.
t be dishonest and according to the defimt10n
The taking for the ~urpose of Sec . 378 mus
ones tly'. In Sec tion 24, Pen al Code, the taking may be either with the intention 01
of •dish
wro ngfu l gain to one person or wro ngfu l loss to another. It makes no difference in the
caus ing
to procure any personal benefit to himselC
accused's guilt that the act was not intended
The offence of theft is contemplated whe
re there is dishonest moving of the property
that to which it is secured. But for mo-ving
the
even though the property is detached from nce
property is detached from that to which it
is secured. But for moving the property the offe
2
of theft is not contemplated, though it may
be still an attempt.

2. Ingredients
(i) A person commits theft.
(ii) The theft is committed in an y-
(a) building,
(b) tent or,
(c) vessel.

(iii) The building, tent or vessel is-

(a) used as a human dwelling or,
(b) used for the custody of property.
3 a person O\\t of n,s
· What is theft . . a movable prop erty or ' .. h
. rder to the taking of the prop ert~ \V\t
Commission of theft consists m ( 1) movm~ g m 0
bein
possession ;ithout his co~sent, (2)' the moving
. 221 ·
~· Madra Dami-i vs. Emperor , AIR 1946 Nag
. AIR l9S8 Mad 476.
 l .t\ WOF C'lllMES &.CRIMINOl ,00 Y rscc. 17~ lo 18CJ

n dishonc~1 intention Tims, (1) the absence of the person's consent at the time of moving, and
t2) the prc.st'ncc of dishonest intention in so taking and at the time, arc the essential ingredients
of the offence of theft .-~
4. lntention "~ Theft
~ On intention and motive, we only need to refer to Corpus Juris Sccundum (AContemporary
Statement of American Law, Vol. 22). It is held at page l 16 (Criminal Law) as under ·-
,'1ntcntion
(a) ln general;
(b) Specific or general intent crimes.
An actual intent to commit the particular crime towards which the act moves is a necessary
element ?fan attempt to commit a crime. Although the intent must be one in fact, not merely in
4
law~and may not be inferred from the overt act alone, it may be inferred from the circumstances".
\Vhere intent is a necessary ingredient of an offence, the burden of proof lies on the
prosecution . Intention is the gist of the offence. In order to constitute "theft" the factor of
5

dishonest intention must be present. Intention is the gist of the offence of theft: It is the intention
of the taker which must detennine whether taking or the moving of a thing is theft.
The intention to take dishonestly must exist at the time of the moving of the property. See
illustration (h). In order to ascertain the existence or otherwise of dishonest intention it is not
necessary that there must be a wrongful gain to the theft, it does not matter whether the
intention of the theif was or was not to derive profit frorri the property; it is sufficient if the
removal of movable property causes wrongful loss to the owrter.6
It is true that Mohar Singh is proved to have disarmed Vijai Ram; but then he did not use
the revolver against his adversaries and surrendered it to the police at the earliest. There is thus
no question of his having taken the revolver with intent to steal. On the other hand, his only
7
intention appears to have been to cut short the shedding of blood.
It is the int_ention of the taker which must detennine whether the taking or moving of a
thing is theft. The intention to take dishonestly exists when the taker intends to cause wrongful
gain to one person or wrongful loss to another person. Where an aircraft was taken out of
8

India to Pakistan without the permission of the Government to whom it belonged it was considered
9
to cause loss to the Government and the act of the accused was held to be a theft.
The dishonest intention to cause wrongful gain to oneself or wrongful loss to another is
known as animus furandi. Where there is an absence of animus furandi and the circumstances
indicate that the taking of movable property is in the assertion of a bona fide claim of right, the
10
act though amounting to a civil injury does not fall within the offence of theft.

3 . K.N . Mchra vs. State of Rajastha, AIR 1957 SC 3p9: 1957 SCC 192.
4 . State of West Bengal vs. Mohammed Khalid, AJR 1995 S.C. 785 : 1995 SCC (Cr) 266 : (1995) 1 Crimes. 397 .
S. R. vs. Stcane, (1947) I All ER 813 (CA).
6 . Ahmed v. State AIR 1967 Raj 190: 1967 Cr LJ 1053; 4 Bom LR 936 .
7 . Mohar Singh and others vs. State of Rajasthan, 1980 Supp. S.C.C. 655; 1981 S.C.C. (Cr.) 552 .
&. Madarec Chowkcedar ( 186S) 3 WR (Cr.) 2, 3; Lal Mohammad ( I 931) 12 PLT 556 : 32 Cri. LJ 739: ( 1931) AIR (P)
33&; Bhurasing (1934) 29 SLR 121 :36 Cri. LJ 1310.
2
9 . Mehra K.N ., AIR 19S7 SC 369: (19S7) SCJ 386 : (1957) SCR 623 .
lO . Chandikumar vs. Abanidhar, AIR 196S SC S85 : (1965) 2 Cr LJ 496 .
r .~ol ~ ·:.·,,,,.~" rt n-r r
1', / r1 ~
-,111otl to wrong \I gam m wr onH uI lo~~ t ,
;":,'. ) 11
••;, , ,l 1ntl (lllpur ,,rd ,
cizcd c,~ttlc on the ground that tie '
k· them to h~) \\ er,c tre~ p:i ~~ ,, rl, 11 11 ., •
I ,,tfl ,1 1111
~t) 11 ~
·,, ,,-, . . )Ill thj t he wrt.s tn m~ PO\lnd h ,,,,.,, (1111 11
II , 1 ,1,-c~ l ..
mav h , t c con 1rn ,t~ ' l.111 r1 .i n i
~11 d1• 111 h<)\\l~vcr nH stak('n he en )011 t h1 ~ ri ' llq lh1 ·11 h, ,·, I r1ll t1; !1J 111 1I
,,,1j1' ' "1111tct1tll .
usc d had any ght tn th: 1 , l;-i 111 1 •111r1, 11, h. 11 ri,,
1
_ ,,,c~ ·t t)n wheth er the ncc
111 • (11, not)"c t intr
1
\ .,)
' ' Ir I· ''P
1• l\lL:0- \\ · ntinn 1q a ,,
' 'l l' L,
1

pro sce nt 10 n to )H ovc the cX1 , 111 ~1,,,,, r r, 1 I

l1 1n 1 he stc ncc ,>f I 1
ict1 1Sl ( ,~I,( I
'd ' . I. ~,l".1dc lll the i t st of h. JnC1H lni,.n,,r Jr,
. r
1~1!1 '
thL' 3CL USC . actmg, .uon . fi . n cre 1s cmpk \ , .
·1icrc. . l. t s 1 shc ncs too k
\' p(1:tc .., ,t,in ll on ns ma stc
. c 1larg e of th , ~rq l1nd1 11
,n •1 h c nets <lnrJ ru::i,n,•rJ~ ,1 p:;rr·, , ,1
ord ers ot HS em plo yer s it , ,
n,, 11 1H Jin g the k d' 1 cstl y must' exist ~as cld that thc acc usc rl pr,-; .. c~~' '•n
P~ 111 ,,en ta e ts 1on . ' \\.;ls nrt1 11
,(1 hi' ·~ , ntc ntio n to at the t1m
1hl I
1~
act don e
.
1s not don e an· c of the mo v,n gr, f rhe ~prr,1t.,. .f
'
rnL·lt . · ·atil )ll (h)] . lf the . ttno fu ran di ·. . 1

i' 1l h1~t1• . f n tcm por ail y t . , it will not amo Derr ·

own er 1s kept ou t o pos ses sio no With any sue h intention b uni tr1 thi•f r
'. "'' l
1 l . bl . m ,
1rrc t lC
\\ i , , t of causmg um
.
trou c• m the sense of ere mental · · ut 0nl·, v,tJ ,
th I ,
obJl.C ·
him wit hou t exa cting o , .nganx iety. and with c u11mat1.
th~ .- of rest orin g the tlun g to r expecti an
tenn on . ful sen se 17 Th y recomp ense. the dct cnrr ,
g wr ong los s in any on
in - t am ount to. causm d £ d h th . e acc use d
wen t to a pol ice ·tat
d ~~ no an oun t at eh'consta bles on d ty .) Jl)n
" ke a com.plamt d . u were sleeping. and were not will ing
l

10 rna I sup po rt is gne van ce to the p 1· h -

. ttcnd to him . n or er to o iceTh Sup erm t d
h 1· . en ent t e Jccu sed
tv a ff c. n.and took it with h.Im. e accused h d
··ked up a handcu 11rom t ehpo ice1· statio . d a no mtcm10n
Pl" ful oss to t e po ice hence he cannot be v1c of the offe nc f "h fi
· f causing wrong k . , . con te . _e o c e c
•2

o led for a time a val uab le thin g b 1

Otherwis e, a per son eep mg con cea . . e ong mg to a f nen d. who t5
· · t, £or the purpose of causm g him a little an , • ty .
xie or m earnest for the
a careless ,man, m Jes .
• lt f h ft
purpose ot tea·chm
.
g him the sal_utar y lesson of bemg careful, wil be gui Y o t e . a resu lt
l
h · complaint•s
Leg 1s
1
atu ~e ~ou
ld
nev er ave mte nded. Where the the accused found the
,,nich the broken from its
at larg e, not w1 thm the com pou nd or the stable of the complaint, it havino
pony on it return mu
wh ich it had bee n tied the pre vio us night, and mounted it and took a ride
tether to not ~ommitted
6n the foll ow ing day in the eve ning, -it was held that the accused had
h ome son, as his o\,n
pinched away the cycle of another per
theft.19 \\There a respectable person k and there was no criminal intention and he
mi ssin g, and bro ugh t it bac
cycle at the time was self, it was held that his act did not inter~~
to cau se wr ong ful gai n to him
did not intend by his act hel d that his act did not amo unt to theft-~
ong ful gai n to him sel f, it wa s
byhis act to cause wr pla inant and received part of the sJk pncc
ner of a bar ge, sol d it to the com c
The accused. th'-! ow
en d to th e contract unless the mon .· ,v.:r e\' h,
- d to put an
of the purchase money and threatene pay me nt, the accused too kt.thh.ate ?lr~ c: inc~h -~ ~
ed tim e. On fail ure of ' ::i
paid to her within .a sp~ cifi . f h.ft It was held . he couldmm;
O t ~ ·.
in ~b
not b~
. with the offence .
possession for which she was charged• f h b e "',as still m her 111 1a,\, s
the accused believed that the possession o t e arg

:~· AIR 1959 SC 1390. 18

SC 926 : (1965) 2 Cr L J ·
· Ramratan vs. State, AIR 1965
13 1414
I . AIR 1960 AP 569 : 1960 Cr LJ , ,, hur Rai (1 888) 8 A\VN "
97
9 Mad 516 : 195 3 Cr LJ 103 5 .
l~· AIR _l 53 cs
16. No~in Chundcr Holder (
186 6) 6 WR (Cr) 79 . Sec Shcorn
y (187 2) LR 1 CCR 347 0
17 · ~a,l~ 1 6.
9
45 .
18: ViabiI3 aksh (l8 97) 25C al4 . LJ 564 : (1 917 )/\IR (P)
1th al Yedu Khalsc 1982 Cri . LJ 1873 (Bo m) .
19 ( lot7 ) t8 en.
· Rup LaIs·tngh vs. Dur ga Pra sad Dubey ✓ 488
·
20
36) 12 Luc k 92 . · . LJ 287 : (193 0) AIR (O)
21· R~tncshwar Sin gh (19 0- 32 en.
· S1tab · 114 ·
at Purs hott am ( 193 0) 32 Born LR
 2942
::.:_.:.::....,_ _ __ __ __ _ _
LAW OFC'RlMES&CRIMI NOUXi
_ _Y
l~;r,r,
__ __ _ _ __ _____ - -- l'IH •Ir, p,,ri I

convic! cd of thct1 as
she had n?t sho\\~l mt ~ dishonest. intention in .sci1.ing po<iqc~(wm ()f lhr~
b~rge... , \\There the accused with the mtcnt1on of laking levy from .the complaint rcm<,vcr
J
paddy from his field in hi s absence and the amount of levy was paid to the cornpl, nt,
11 thr.
accused could not be held guilty of thcfl:.22
,
. The fuct that the appellant was found soon after the theft in possession of a very lar
number of stolen a1ticlcs shows that he \vas himself the thief and not the receive r (Jf str,1!~
goods . The present is not a case wherein one or two or a very few of the stolen articles
were
found in the possession of the appellant soon after the theft. On the contrary: the bulk of stolen
articles were recovered from him. The number and the nature of the stolen articles recovere
d
from the appellant soon after the theft coupled with the other circunfstances of the case warrant
the presumption that the appellant himself committed the theft. 23
If the intention of intruders was theft, nothing was stolen and the seven incised wounds
two of which were caused while resisting the attack, were not necessary to be inflicted on
th;
deceased by the thieves . Whoever caused the injuries on the deceased, had the intention
to
cause her death. It is inconceivable that the young couple while alone inside the inner room
at
night would keep the outer door of the house open to enable thieves to enter.24
The fact that a fairly large sum was paid to the appellant and his co-workers by way of
their wages would be known to others apart from the appellant and his companions. No part
of
the money was traced to the appellant. Therefore, the accused cannot be connected with
the
crimes of murder merely because the motive for the crime was theft. 25
Theft and hire-purchase agreement. Prospective buyor instituting criminal case alleging
theft. As the financier exercised his bona fide claim of right, no offence was made out. 26
Theft-Mens rea and dishonest intention. Absence of Bus purchased by A-2 under a
hire purchase agreement. Subsequently the b6s sold to the··complianant. Complainant defaultin
g
in payment of instalment to the financier. Financier taking possession of the bus with the help
of
A-1 and A-2 . Held, offence of theft not made out. 27
,, 5. Theft against himself
'A person cannot consent to the theft of property from himself'.
6. Dishonestly and Fraud
"Dishonestlv" has been defined in Sec. 24 of this code while "Fradulently" has been
defined by Sec. 25
of this act. See the comentry under the relevant sections . However Sec. 24
and 25 as defined are reproduced as under :-
Sec. 24 "Dishonestly".-Whoever does anything with the intention of ~au~!n~ wrong~~!
gain to one person or wrongful loss to another person, is said to do that thmg dishonesty .
Sec. 25 "Fradulently". -A person is said to do a thing fradulently if he docs that thing
with intend to defraud but not otherwise.
22 - Vcnkatan
araya na 1979 Cri . LJ (NOC) I 34 (AP).
23 · J\yodhya Singh vs . State , . 72 C I J 1696 .
o l' Ra jasthan, AIR 1972 SC 2501 : 1972 SCC (Cr) 786: (I 972) 3 885 · I 9
~~- u:"cdbh ai .ladavbha i vs . Statc.ot'G ujarat, AIR 1978 SC 424 : 1978 SCC (Cr) l 08: ( 1978) lSCC SCC
r J

228 : 1978 Cr LJ 489

9
\ ,) 0 ( \ ) Crimes 346 . .
'2r, . l·rc," Thaku .
'21 K A M · . r , s. Slate of P unjab, AIR 1983 SC 6 1: 1983
h SCC (Cr) 88 .
a\ a, "" · Kora Bibbikutty, 1996 SCC (Cr) 281 : (1 996 ) 7 SCC 212.
 AND f·RA {lrl
ISJIO NF.S 11 .Y ) ,l
------ D
,~fl! - - - - .
. ,vhcth cr ~ f ~11 V C I ,r ,,1
-,11,1
nt nn m tcnt 1 on to dccc1vc . 11 I~ rn111 " P" r.1.11 lrJ11 I 1111:i,,
-~ er
f

,• i • ard~ an o th ,A
l ,ll •Wi ll tow
I' (lK
,_, . .
,1, (,.11H {r()ll I . firnudu lcnt ly ,f he clocq th At t h•n~ w 11I, tn tr. 111 trJ rk f r-1111 1--,,11
•
i'° l,r a t lin g
• rn' nid 10 do
,111~S ord 'dcfrn u tmph cs th e
d' . dep rivat ion or .tnt('ndc<l dP,p n v ;:it,rin ri f JJr1·,pr:r1'
/l
, rl ·11 c w -
f1 .\ pen" • 1 .
.29
·
It o f th e frn ud
·rhc'' ',~lrc '-l' ,
of da(y and there w ::i q nn CJt11~11 t 1r, ri ,.,f
I l, 1 l) r o pe nl y 1n th e light
m ov ed .
. pert\'. was re .
'
tion or of anyth mg cI'3e wh,ch th e wr, rd r,1wt
/111 . f
, /l f'fl' .. prl) e ac tio n , de ce p Cl

~- crcc,·. cland cs tm . done fr audu lently.3'

1
-nt sc u. ld not be satd to be made or
, , 11Cll

,·1,r. •~c.1hll~ h; act co

d
C ou rt th e ex pr ession 'defrau d' incl u eshan clem ·
en t- ,-)f ,j e.ce,t
~u~r.,r~. ard.111g to
the SupremeI d fi . . of the word 'dishonest!Y, w I1c 1t 1s an impr'.T1 l ant
" -c gr ed ient o ft 1e e 1mt1on , form er •mvo1ves a pecu mar1 ,..,r
11 in ..
•11 1·s not athe definit10n of the .word b fr
"c audulently. '. The
f h I uc tion ex clud es that eIement Further rhe
pc..-.c . • h'l
"d 1cnt oain or loss w 1 e t · e at'dte' rh
y cons, tr ly ' us ed · th .
s se
·
ctions
d 'frau du le nt e va riou
10grt . ~ 1s on estly an m
0,nic .g of the two expressi ffi .
ons d h efor . one
e~lJn s1. t10 1 . l 1t y an t er e the definition ofngfu l lmay_gth1ve co1our Eo,
:1apo 1 indicates their c ose a m in or wro oss 1s e necessar
JU" co de
efinitionof'disho nestly', wrongful ga
ustrate ' inthed . es sion ' fraud ulent! ;
of th e-ro ·u ou 1~ ~e enou gh. So too, if the expr than pee · or
thef-, 1 ist, one w ng other umary
; edient . Both ne~d not ex should be somethiJury ce
he ld to m vo lv e the element of m to on e ca us es lo ss to another and 111
gr t be vantage
were o
ss . T ho ug h al m ost always an ad
economic lo arily be so. ce it s
·tl need not necess ag e to w hi ch th e party practising de 1
advant ly '· 32
versa,
d 'd is h o n es tl y ' must relate to an e de finitio n o f the word "dis honest
The w or ient of th le nt . 33 The
title d .31
D ec ei ~ is not a~ ing~ed t or dishonest without being fraudu
not legally en
le nt w it ho ut be mg dishones nt io n is ve ry im portant. A person
du ne. Inte
An act may be frau te nt io n with which it is do s in te nt ion to cause a gain
is th e in e proper ty it is hi
determining factor t in te nt ion, if in taking th 34 The word "dishonesty"
is restricted
di sh on es
can be said to have er ty to which he is not en
titled.
a di sh on est intention if in
o f p ro p be said to ha ve
by unla\\rful means ng fu l loss. A person can fu l m ea ns of th e property
us e w ro himself .b y un law
to an intention to ca to ca u se wrongful gains to od e is different. The wo
rd
in te nd s in th e C
taking property he .35 The word 'dishones
tly' used
es o f a man 's act that th~
titl ed to om the co ns eq ue nc
which he is not en in ar y parlance . It is fr 37
36
is in o rd
'dishonestly' used cused.
to pr es um e the intention o f the ac t. T he el em ents to make up l
court has lent ac
ne ed no t n eces sarily be a fraudu s se cr ec y. The word '·d
efraud ..
A dish on es t ac t and in so m e ca se not
ar e de ce it or in tention to deceive pe rs on de ce iv ed .38 The injury ne39ed
fraudulent ac t to the
em en ts na m el y deceit and injury , in bo dy mind or reputa
tion .
invo lves tw o el , to an y pe rs on
niar y. It m ay be any loss, any harm _
be pe cu .
1960 C~ LJ 1414
Pra. 569: .
IR 1960 Andh. lLR 13 Bom 5D
· In re R am ac ha nd r~ redd i, A
1) 2 East 92 ; See also U1thal,
~: 89
J m Haycraft, (1
· Pe r he Dl ~nch e, al 51 2, (5 21 ) (FB).
30 Abba~ Ah (1897) 25 C 3 SC 1572.
.
dm ini stration, AIR I 96
31
. Dr: Vimla vs . D elh i A 96 ) ) Sup 2 SCR SS.
32 Knshnarao, 1953 Cr I J 897 72 : (1963) 2 Cr LJ 434; (1
. IR 1963 SC 15
~!· Vimla vs . Delh i A
dmi; is trati~n , A
5 CWN 897.
35 : ~ da r Nath, r LJ 1053 .
ed , Al R 19 67 Raj 190: 1967 C
36 M m
77 Cr LJ 72 .
37 . adha van, 19 .
, ,
AI R 19 59 A P 530. 362. p . 2 SC R 55.
38 . 1960 Pat . (1963) Su
· Sh eod · · !
~, ( 19~ l 2 C r LJ
39 Vim la: nt Singhi Adm m ts tr ati on , AIR 1963 SC
36 4 : AIR
1572, (1963) 2 Cr. LJ 434

s. D el
,,T ,
DISHONES11~v ANr)J,R,i\lJI)
, 1~01
•. _~7~10 ·
n to dccc ·tv c When
d is meant an·11mtcnt1o hq
'

·"''
'
1 it be frc ·
I cr
ll~' frn ll ' ards another ·28' ll11 :t.n y pc:c t;i1
. , c)r from ii -wt tow cx
' 1rm ri f -1rh;i n r,111 ..
Ati \ 'd d I . t)
ulen y I tc d 'f .
}
1l1Cp, . to o a t 11hg' fraud ,
1(1 . ,rson is sa1 d 'd fl d . o~ s th at th in , wi ,
Apc, 111c wor
,11\'i sc . e raud implies the cpnvat ,on or inte~d Ith intc:nt tr, dcfr;J, h,..i ~,n
e fraud .29 C(' dcpr, v,H . 1( )11 rif prr1p~n;
nt'I (')the r result of th
p:it1 o 1 a . " d enly in the Ii ht
w s I en~ove ~p
II
~ ' j ,I

- W he re pr op ct y · g ofof day. and th ere wa~ n c~ t10n 0f

st in e ac tio n de ce pt
ncnt. secrecy~ clande .. ' ton or anything else which. r1 qu
nccB I, sa id to be m ad e or d the wrm:f fraud·
ts. th e ac t co ul d not be on e fra ud ul ent! 3o
,~(1 ,.
, y.
~11ggcs . . to the Supreme Court the cxpre .
l\ccordmg fin iti on of ths s1 on defraud' includes an el ernent of dee t
.; is not an ingrfiedie nt of the de e word 'dish onestIy' while it is . rtae1nt
. . f au du le tl ' an impo
l)cce1 of the de m1t1on o the .word 'fr n y . The fo rrner .involves a pe
. ed ien t 1 wh'1Ie the latter by constru t'
mgr mic gam . men t. F:~~l 1er ary_hor
no or oss
ne st ly ' an dc ,~ n ex cl udes that ele .re
o ex pr es si on s 'd isho . ira ud ul en tl ' d. sec tio rrs
~c~taposition. of.th e tw . fi . ~ use in the va rio us
h . an d th er ef or e th d
JUX s t eir clos e affimty e e .tnltton of one may gi ve colour to
0
f the Code md1cate · th d fi ru · n of ,dishonestly' wron ful gam
·tio orwrongful I~ss 1.~th e necessary
e g
other. To illustrate, m e . ,
ld be enough. So to o if th
h d no t ex is t, on e w ou
' h'e exprhe
· ession fraudul·ently·
ingredient. Bot ne~ t of in ju ry sh ou ld b ot r than pecuniary or
lve the elemen e somet mg
were to be held to mvo ay s an advantage to on e
us es Ioss to another and vice
ou gh al m os t al w ca
economic loss . Th .
rsa , it ne ed no t ne ce ssarily be so. · ·
ve
an ad va nt ag e to w hi ch the party pract·1s·mg dece1t 1s
to .
The word. 'dis31 honestly. ' .must· relate .
th e de fin iti on of the word "dishonestlv
". 32
1e nt of
eceit 1s not an mgred without being fraudulent.
33,The
not legally entitled. D sh on es t or di sh on es t
An act may be fraudu
lent without being di ne . In ten tio n is very important. A pe
rson
ch it is do
e intention with whi is his intention to cause a
gain
determining factor is th ta ki ng th e pr op er ty it
onest intention, if in 34 The word "dishonesty" is restri
cted
can be said to have dish is no t en tit le d.
operty to which he to have a dishonest inten
tion if in
by unlawful means of pr pe rs on ca n be sa id
e wrongful loss. A unlawful means of the pr rd
operty
to an intention to caus l ga in s to hi m se l(b y
nds to cause wrongfu e Code is different. The th
wo
taking property he inte is ho ne st ly ' us ed in th
d to 35 The word 'd36 equences of a man 's act
tbat e
which he is not entitle It is fro m th e co ns
ordinary parlance.
'dishonestly' used is in th e ac cused.
37
.
up a
pr es um e th e in te ntio n of
d I t act The elemTh ents to make efraud ..
court has to . ti · e wo rd '·d
. t ne ed no t ne ce ss anly be a rainu soumene cases secrecy. The injurv need not
A dishonest ac · ·n to dece1·ve a nd d . d.3a . 3g
• • 1o rso n ec e1ve
c. d 1 · t act are deceit or mtent . t th e pe re pu tat ion .
1.rau u en . d .mJury O . b d mind or
. namely de ce it an O Y
mvolves two elements y harm, t0 any person, m
an
be pecuni.ary. It may be any loss, 9 1960 Cr LI·, 14 14. 15
56 : U'Ith JLR 13 Dom 5 ·
28 ch andr arcdd i AI R 1960 Andh . Pra.2 e also a'
· In re Rama ; Se
t, ( 1891) 2 East 9
29 · Per he 13lanche, J in Ha~craf
3 Abbas AJi (1 89 7) 25 Cal 512 , (5
21 ) (F B) . 572 Sup 2 SCR 55 .
o. 96 3 SC I . 963
.!~: Dr: Vimla vs . Delhi
K~ishnarao, 1953 Cr
Administration, AI
LJ 89 7.
R 1
157 .2
. (J % 3) 2 Cr LJ 43
4 ; (t )

33 Vimla vs. Delhi Administration, AI

R 196 3 SC
·
34 Kedar Nath , 5 CWN 897 . 1053 ·
·
35 AI R 19 67 Raj 190: 19 67 Cr LJ
· Ahmed, R 55 .
36 Madhavan, 1977 Cr LJ 72 . 4· (1963) Sup. 2 SC
· 0 Pat 362 . 43 .
0. 2 (1 96 3) 2 Cr. LJ
37. AIR 1959 AP 53 t;J •) 2 Cr LJ 36 4 : AI R 196 57 •
,h /IQ SC 1
 1, w n lt r,nyv1l•S· ~< lHMI Nn t ()( iY I"1"' 1
- 1, , 1i ,
-
n n 4. 1. . 11.1~t) nn l''rt It ~ 1'II !\tLV 1,m\.l ',u~nNl\ t ,,
' t '" ' ~ p:t ~<1c<I On ) I I ) I (J~ ' J lh 'I,
• f lr h~ tld
, nnwn ll~ot. come- h.., tht' t) f11ct' t'I \1l(' ar :'lt\d oh1cctcd to th e .
ICA ;\ I11\ qf hi1r•1 1,,,"rl, ,,,
I,
. ,m I h
t,qnni:: th e dcmnn 11 It' t1 ' 11w: 1:lt1 \\ ,,.,, m c(hatcl y ,ntmrntc( y t hc r.chc, lld~H I . r1 r,h
_ ,,M . .

.. ' t I • "C~l"' 1r . ·,1

l\.\r.u!1~troh'.' t.. , n t l1, ' !-tu ' dA\ 11H' 1 • '" )tHkll t Satl\\a lda c, then fi led a com 1 111
' 1)i , '
wh,k ho d hnrl !!t"nc t'It the lc11)S l 1 ·c
' m . on 1 c on hig scooter. th e ,rehsll. pl ~int ;ill r.ui ' r,, ,
. • ffi ,cc under
da r fo rc ,h l y kept th..,,l" t111' th,•11
l1 h , r -,n,n, Se ction 379 of the 1ndian
and. a!- ~uc, . " - l 1t,cd ~n O Cl Penal Cr de , 1rr,1r'', r
ft. . I l , f
c:cm in:: o t11c s co ot cr th ·
e Tchsildar d1rcctc ,o d c h 1
5t3ted 1hat
3. l r ll ~ , r t c au 11 n,~ 'l l')r
, . ct io nc . ct 1 (m 1n g fJf th ~
an d thc ~~ 001l..r...wa ·, ulwnatc 1' au d on 22 .1.1990. On th e
bas ts of the co mpl ain c ~~rn .,
., ~ ,
n, t fil ..i
th e rcsron \ n1 Sam,·alda s.. t1ll: 1l:-<'l l.:-d Judicial Magist
d"' rate , Fi.rst Class, Damoh
f h Off" ~" and d1rcctcd 1ssua1,cc of process against the ... .
. took cognI .C11 b,,'
0 t c fchs1ldar. Th e Tehsi ld t1.a11r
before thel:DMLl.aQ.1stratc on 2 " 1990 and filed an ap .. . . ar app ,r,
__, _ plication ra1smg obJe earPrj
comnzancr of. . th,. . 1.::,. ff- n 1 . d ct1on to th e ordec r tak -
o cnce O th e gr ou nd that the acts comp f . . ing
:)ff::ici.al dut\ . of thc Tc11s1 ldar and th .
f am e ·o w er e m d1 sc
, erefore , m the absence o . harge of the
Coo.e ot-c · · p ocedur
\J ,
nmm a1 r e, the Court will have . . . .sanction under Se
. ction 197 of th
Supreme Court upheld not Juns. diction to entertain th e
the order of Session Ju . e co
. mplaint Th
dge holdmg that no co
u'sec. 197 Cr PC can
be taken.40 gnizance without sanc e
tion
TO prove an offence of
theft, dishonest intentio
has to be established. In n o~ the accused_ in re
order to prove dishones m~ving the property
certainh· V1ill enter into t intention the questio
the picture. A.bona fid n of title to the propert
charge ~f t.heft .41 It is e claim of right would y
essential for the offenc be a good defence in a
however been with the in e of theft that the rem
tention to take it dishon oval of the property m
fraud is also a fraud. 43 estly. 42 The concealm ust
A fraud is an act of en t of an already committed
something ,by taking un deliberate deception w
fair advantage of anothe ith th e design of securing
\oss . lt is a cheating in r. It is a deception in
tended to get an advant or de r to gain by another 's
age. 44
Fraud, if can be discov
ered by the ·person on
it is not proved . It is ne whom it is committed
ither a case of suggestio by due diligence, then
falsi or suppressio ve 45
An illiterate vvoman fil ri .
ed a criminal complaint
of a sale deed by obtaini that a fraud had been
ng her thumb-impressio practised in respect
to know about the fraud n by making misrepre
on the very next day. If sentation. She had com
would not have implica that be so, it is not po e
ted any of the accused ssible to believe that sh
~3,_ 196~ or in the FIR persons in her complai e
lodged some two month nt Ex PA dated Novem
mdignation must have be s later on 15th Januar ber
en ar ou se d as against the appella y, 19 69 . H er an ger and
name them , when she kn nts and she would not
ew th at the appellants had prac ha ve failed to
she has sta~ed t~ t origin tised a fraud on her.
al accused No. 2, Sumer In her evidence,
her to obtam Pohce help Singh, had maintained
. As soon as PW -27 re the pretence of helping
must have also reali sed alise d that a fraud hd been
e\ent she \\'Ould not h that accused No. 2, Sumer Sing practised on her, she
\ 96 o0 h . c. ·1 d · · h w as on e of the conspirators . In
t at 1s to say foav e iai e to mentio
ur d n hi s na m e in Ex
'
PA
that
\%C\7 \0 d ft h f ha nded ov er on 23rd Novem ber,
ged two m'onth l ay t
s a er t c raud was di.
I sc ov er
· · ed or in the FIR dated Ja
nuary 15 '
4 ci N
4 . .K. Ogle vi; . San
s a er. t is m compr ehens1·ble why if ·
\ . l\lR \ % 2 Tri wah.l Al l' a fraud had been practised d h
42 . ?.\I. C:WN
<\:. . RK p 25
. as,
. 1% 2( 1)
'- 1999 SC' 14 37 : 19
Cr LJ 75 6 99 3 SC C 284
an e~
. :nci. 19%0 Cr LR
<\ 4 . S \; Da\m ,a V!i. . .
<\ \)c\hi Ad ~~ ad .) .85 .
· · C:hcnv,a\va : 19 78 Cr LJ 71 5
ministratio .
S · S'n ri Kri!i'n an
v:a ya Na id u vs. l aga n AIR l 96
nn ~th 2 SC
-K un ikshc tra u · 1821: ( 19 62 ) 2 Cr
. ' AIR 1994 SC LJ 80 5 : ( 19 63 ) l
n1v crs 1ty, A.I R l 97f.. ~,.., 853 · (1 99 4) l sr .r 1
~- . .
SC R 25 3 .
 IJ ISl lO N!•~~·n ;y A
,~Ol Nl )J,ll/\{IJ)
l~~fO · - .__ .
,on had been obta ined on at d oc t1tn cnt h .
;.i.•,
..,, ,,,rcss cra t1o . f lR 3 )00 ~he f . P11 rp,lttin R tq. he 1,
,1,-111 n con.c.id n o s . . 0,( a1 1cd to 1111. .
. , - ~ i :ilc rtcr i1 ,
h''11
, , igh t s. lt 1 s n ot po ss ihl c to bcli cVe, t·\l ~t whh;-itcc i vil Pror-e,:r\1 fr,r th r,," .
'.'f tn
v, h, r
t i~1( ,r '
ld I ' tl he r tit \
. en . . r, t(, Prnp" . n~~ '· P1t rp, ,
11,r1l I! ht r • u ,av e res t co nte nt \Vl
1ctll ll~ ,J • .;.he wo
~,nru~- . t dotng . 1. . ' 1<xl g1n ~ COtnp laint wh --n v \Wi rth r> .\1'1,, i',,r;1'
11f4, an yt ,m g mo re in ord . crc,n (inl y PW .. '\
, ,nJL':( ·1h ou . er to pro tect h ,,
,,-,. -ntcd ,,, me fcr tit i crs l _1 • er ht \c t<1 the pr r1pcn ·y'·inl\h1111~1 -1,
cly tha t so 8
. . l au tn fa ct hcen deli
1n1phl·It' ,,·:-i~• not unhk . atl.on . 0 n t.1c I hd . y h
~11 ~"1 1•~1,1 ""·
ba sis of su vcr ed tq th ('
the dcs tm ~ 1 c cl, vcr , t c cert,fi cat<'d h ~ ,r,vr;rnn,, ·"'
Is :i1 tha t tl1c .
l,t1ic 1ll . not the ca~ se of t lC
pros ec
.
uti
.
on qu ali ty f the fertili oc_., ::1<1 h"" --n 11~11•~r1 1-n
It 1~ 1 tn. g en d an d th . o , r, wa s r
the ot~·1ccrs at t le rccctv cy h d per infrastru · cqu,r~r1 ti)~ ~
11ic111 . 1cd b,·
c
. • ed tha t it w a pro re tom k 'i •1<:h
,,ii 11111 It has been ng htl y conte
,r·1sc. . l 1·
tty
nd
so tha t it wa s
as
no
no t est
t ssi.ble t
abl' hed that thectu
ts fe t 1· a c
r 1 1serq wa
ext .l i..]·' ann Yh cre• m. the oc a po t f s nnt
iJ;:it L ~ •
1
ns
.
ign me nt. Sim ply on th b . o rep·d1ace the.quant ' Y() fert iliser
n,::i ,Uing the ongmal co
h c. rt1. hse . e ash1sofe vi ence given by 1 ·-
frcr sc .
rry t e 1e r or suc h lo . ct· . or r; rAv ner
a th •r lorries did not ca l . . rnes ad gone t0 tfferent places a d )
that e1 were sold by t11e dea ers to other persons , non-de1.tvery 0 f c1 . . n ,orne
. . crs full ert1 hser at destinat 10n by
f~rti 115 not be y ru ed 1 ou t. 47
" means can
0ther .
The respondent agree d to make and sell to an unkn own third party certai.n dev1ce for
. y meter t o show that· 1ess electricity has been consumed Th
.c1t
ring ele
al te .
ctn
d ll d.1shonest dev1. ce, the sole purpose Of h' h · e agreement to
anufacture an se
res po nd en ts co nst itu ted w ic . was to cause loss to the
;lectricity Board, this act of the raud and rt is
me rel y int en de d. to res ell the adec~nspuadcy tot todefuse the mselves .
. elevant that the third
party · vice an no
UT . law. 48
This is offence agamst common ld
gful ga in to on e pe rso n or wrongful loss to another, an act wou not
re is wron . '
Unless the
, . ry for a thm g to be do ne 'di shonestly' that there should be an
be 'dishonest . It 1s not necessa on gfu l los s. 49 Except so far as loss or detriment is
ga in an d wr
intention to cause both wrongful nta ge is ob tai ne d, any intention of causing loss is a
en an ad va
almost necessarily involved wh wr on gfu l los s inv olv ed in 'dishonestly' is pecuniary
ul ga in or
matter of inference. The wrongf ted ati ng of a rec eip t can not be said to have been
, the me re an
or economic gain or loss. Thus to an advantage to which a pa
rty
50 The term 'dishonestly' must relate
done 'dishonestly' . ly en titled . Thus where A, although entitled
to
all y or eq uit ab
perpetrating a deceit is not leg ea rs of ren t ba sin g his claim on a rent note which
es B for arr
possession of his hous~ from B,
su
ing en titl ed to ren t at a rat e fixed by the rent note, clearly
not be
is found to be not genuine. A, . .
51
intends to cause wrongful gain. 'd.tshonest1Y' or not, it is the int
ention wh ich ts
.th . hi
n has acted 1d t d' close or suppress facts wt mthesr
In determining where a perso . fi 1loss to ano
. ether a pe rso n is un de r a leg a uty O is 0
unportant and not wh have acted
wh ere a pe rso n wi th the int ention of caustg ;; ; ; ;~id to
knowledge . Therefore wt
false rep rese~ t~tion .to him or suppresses certain facts, :2
~akes a te the trn th. 4 c LJ \64: l9M
not req uir e him to sta
~honestly even if the law does- c 355· (1984) 1 sec 686: 198 r
: 1984 SCC ( r) .
46 rya na AI R 198 4 SC 226 3663 ·
· Lalchand vs. Sta te of Ha , sec (Cr) 864: 1995 Cr LJ
1 Cri me s 337 . .
_ Cr App r (SC) 113: (19 84) 212 8 1988
995 SC ·
47 dh ra Pra des h, AIR 1
A Jayarain vs. Sta te of An
85) 2 All ER 769 .
::: R. vs. Hollin She ad, (19 53
67) Cr. LJ 1o .
so. ~m_ed (19 67) AI R Raj 190 :C(19 1.
sI ;~d ish Pra sad 1981 Raj Cr. . l O
LJ 979
s2· /'s~ nar ao (19 53) Cr.
n 691 .
· U\dip Sin gh ( 195 4) Pu
 4(j
29-l 6 1.AW OF CRIMES & CRJMINOJ .OG Y

lllc law takes into account the prim~ry or imm

ediate ,intention ~nd n(~t~he s:~o ndary or
remote. Thus. if A takes an article bclongmg
lo Z out of Z s possession, wit . out Z s cons
,,ith the intention of keeping it until he obtains ent,
money from~ as a reward fo~ its resto ration,
takes it dishoncsth· and conunits theft .53 As he
every man ts presumed to intend the natu
consequences of hi.s act, it is from the consequ ral
ences that the Court has often to ~resume the
intention of the accused in doing a particular aet. 54
The law does not look to the motive: it look s
only to the intention. Motive and intention are
two different things. Motive is directed to the
ulti.matc and~good or bad , which a person hop
es to secure; his intention is concerned with
immedia te effects of his ac.ts. End cannot just the
ify the means, in other language, the motive
not justify the intention. does
The existence of the unautl10rised means for abst
raction is prima facie evidence of dishonest
abstraction by some person. To bring home
the charge under S. 39 of the Electricity Act,
prosecution must also prove that consumer the
is responsible for the tampering. The prosecut
must prove beyond reasonable doubt. 55 ion
If for the purpose of the offence under S.
447-A, l.P.Code, the Court found that the
entries made by the accused in the gate passes
were made inadvertently and negligently but
"ilfully or with a view to defraud and that not
finding became final, it would not be open
C011~ later to find, on the charge under S. to the
420, I.P. Code that the entries on the passes
made not inadvertently, but dishonestly. 56 ·were
A close scrutiny of the evidence and records
show that the superior officers in spite of the
circulars did not take a very serious view of
the credit sale to the cultivators. In fact by circ
dated 2.8.1967, the Director of Agriculture, ular
U.P. while impressing the prohibition of cred
gave only a warning that the erring official it sale,
s would be held personally responsible to pay
outstanding amount. 57 the
Where in execution of a decree against a ceta
in person, property, belonging to another .
person was wrongly taken away by the bail
iff and the owner and his associates took
property: it was held that no offence was com that
mitted under this section. 58 If an attachment
movable property by a Court Amin is illegal of a
then in removing it from the Amin's possession,
wrongful loss is caused to the Amin or by no
retaining it with them, the accused or his mas
cannot be considered to have made any wro ter
ngful gain. 59
Where there is no proof of 'taking' of the prop
erty found in the possession of the accused,
the offence committed is not theft but crim
inal misappropriation. 60 Thus, where a postal
who was in charge of receiving parcels and clerk
other mail was accused of having committed
of a parcel of imitation stones, it was held theft
that as the accused had got the parcel by law
means and there was no taking, he could not ful
be convicted of theft.61
53 . Section 378, illustration (I).
54 . Sheodeni Singh ( 1961) II Cr. LJ 364.
SS . Jagarnath Singh vs. B.S. Ramaswa
my, AIR 1966 SC 849: 1966 Cr. LJ 697
S6 . Amritla\ Rati\al Mehta vs. State : (196 6) l SCR 885 .
of Gujarat, AIR 1980 SC 301: 1980 SCC (Cr)
2\4 : 1980 Cr. LR (SC) 48: (198 0) 2 SCR 81: (19_80) l SCC 121: 1980 Cr. LJ
51 72: (198 0) 2 SCR 72 : 1980 UJ (SC) 79
· Narcndra Pratap Narain Singh vs. : 1980 Cr. App R (SC) l.
si ~:!~ 1991 Cr. U
State of Uttar Pradesh, AIR 1991 SC
1816 : (1991) 2 SCR 88: 1991 Cr. App
1394 : 1991 SCC (Cr) 482 : ( 1991) 2 SCC
R (SC) 208: IT (199 1) 2 SC 86: (199
Sl)_ Mad:a (\ 941_) 43 PLR 162 : 42 Cri . LJ 601 1) 2 Crimes 183.
G\l . "L· Lava'.' Pi\\ai (\ 966) Cri . LJ
: (194 1) AIR (L) 217 .
1
" l1Vua sh 1 ( l &
728 ..
ti\ . °Yi\a'· R _a 19)U nrcp Cr C \43 ·
" a1 Koh\ ' \"
' ,,70 Cr. LJ. \691
· ·
Del.
 •
'1 1

,,.,,1 ..I ..
11
) I,.
r- ,11 1' H rt n 1tH1--"': i frl" l 1,
1
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u,d l1:1u, ' I
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1 . , , • c,, , 11
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ftr ,o ~11 t f- 'rf 1n ~ ffH f 1h-- ~ ' tl 11111il, , " ?11
1~1, ,
• • ,, .111
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rh •u , ,,_ , r,
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r, r c•I Jl ,n(,,,rm~(i tm r<-.rnrh~\nf •
'l11f1 t... , ( ,r ~i" 1 i
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11 1 l h.,11ti1•,1 II\ ., f lf fi1 rt f
1
llt JI'•" ~n t ,, " ,H f',, lr"J.'
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(' ri 1I

r,,,, '
1/1:1
,iu 12 lh t' 1,nr l.
thr it ll1rlf't1f " IIn rt•t11n• .--.,t •I, ,
l)ln. p tn \ 'tu C lfn N t1\ \,H M I
(1(1 ftf f
11ntc-nW '" ,, J,l~ fl( ~
11 :1m ,.. " • lJ ' ., rf,,
...
rcfo~'">l r,1 rcrurn
,r •q
• 1 n tl f l l ,
I' Ii. ,, . ., • •I
,fl,,, drr;l itir lf ' ~, ~mi \ ,re 1 11m ,p~ I in
,,,. hn' r, n<''I'-
'
1,P j11C 1.,;
1,, ·I r.
,,,ri- I'l. qP;, c;hrd I ·- ,J
,·u1
.Mv t<' h::l \1 , ,:t «·n t111111rv1 • ~ ('- .,, ,, •, .
Cf1t.s 1t 1~ na:c..1- ,
gn
11, m n ~J K ,n fi
• -.d ihc drfirnt
1
1
ft ef.t Act. I CJM of . (r ~'· 1·1 1,~,·, re: 1,.. in..,1 ,.. ,
1,,,11 c m,t1 ll se t ou t m th e Th
·1h cfl ·. as
L

opertv- hck, ,111-;111 ,.,,1 , ', 11f h 1ftCf ' itn . t .

11
• t,c,n ,.,f
.. ,
Hn'dr' fin i ~ ap pr op ria tes pr
h 1l1t r1 J1 1f\ l)r th
cA 1f he dishon es tly .
1t an d
L_
'th eft· an--'U ~,l.:,...--t 1. 11,., 11 'l" '"' "~' " ' ,.
l mg th e ot he r of 1

. 1._ 11c-n lh-• dcpm c,i·,

1

ients co n•m t11 t,nll t1.n ,111,,cr 1'1< ' 1 ~;-1

111 1_
,r,1,n ,~ •,I_ rcrll ,, . ce in th e in gred
s a marked diff.er . en . ·lt t;i ;r, r,f ;f
der the Code w/ 11 J~
"1l
*11l 'l,nrl' 1~1.1,~ rc 1
1

1 ••
t an in gr ed ie nt un io
'
-r ng h sh la w . ~ Vron~ful ~am IS . no ct th e defin iti on m Enghc;h law rq fl c
~i•4,r~; Jaw. In fa ·
ropn at ion is an m gred1ent m Enghsh nv er sio n un de r th e old law i.\~m . ,o-rk
la'' a lent co
zzlement and fraudu e another ~ nm ,. r~j-
rn, ~apr·as Jarccn cy, embe propriation m u~ t in te nd to de pr iv
·h.:r"
f at the time of ~ e_ap out consent. ~vcn ,f
:tt: ~~~ la wthe thie
1 ovable prop er ty
nder the CodJ e, rfdm . ould nonetheless be theft.
1s ta ke n w ith
t n~ . · rope rtY. . U w
0f hie· p,, ti·on to return it at a ater ate, rt rukml(
ith th e de sig n of se curing soml;thm g b,·
w chQun~--
deliberate deception
int~n
another·s loss It ,s a
11-a S
I\ fraud is an act of in or de r to ga in by
her. It63is a deception
-~ ir·advantage of anot
mu.a
intended to get an ad
vantage.
ct be en de liv er ed to the Govcmrn,.,·m
had in fa
It was not unlikely
that some fertilisers er y, th e ce rtific ates had bl:t.:n issued b,
such deliv ers was required to
tic
als at th e de st in atio n . On the basis of qu al ity of th e fe rtilis
offici at the
of the prosecution th frastructure to make
~uch
them . It is not the case d and th ey ha d pr op er in
as not
s at the receiving en that th e fert ilisers w
examined by the officer it w as no t es ta bl ishe d
ft: rtthS\:r
htly contended that replac e th e quanity of
exercise. It ha been rig as no t po ss ib le to
n by lom o,, n\: r~
an yw he re in th e locality so that it w si s of ev id en ce give
available on the ba t;
lli ng the or ig in al co nsignment. Simply ie s ha d go ne to di ff erent places Jnd som
after se or such lorr b,
th ei r lo rries di d no t carry the fertiliser no n- de liv er y of fe rtiliser at destrn:mon
tha t persons,
the dealers to ot64her
fertilisers were sold by
fuIJy-ruled out.
other means can not be
7. Out of possession
of any person nc e against p0sscss1on ,
Jnd J
od e is an of fe
9 of the Penal C
111
r se c. 37 w hi ch he \\i aS alr\.'aJ~
An offe nc e un de g som et hi ng of
ot , th er ef or e, be convicted of stealin ts do w n a tre e standing on th\! bn J
person ca nn possession cu
n. 55 Thus when the tenant who is in co m m itt ed .66
To consti tull.! thdt it is
posses sio theft is
m ov es th e w oo d th ereof no offence of m th e cu st od y of a person ,1.-hu has .m
and re s wish, fro
nt if pr op er ty is removed against hi 67
suffi cie
of right, to su ch property.
a colour
apparent title, or even .
LJ 161J (Boni.) .
~ ~ -- IlhalchandraWavikar 1981 Cri. 00 , 1 ) I SCC I •
63. s 1rtkar (Dg r.[ 13 R) v. Uday . Jagann
. ath AIR1 99 4S C8 53
: (b 7 "- '
8~4 : 1995 -~ r LI
J(,bJ
. .P. Chen avarayaNaiduvs 19 95 SC 2128 : I?88 sec (Cr) .t> ).
64 . AJ h: AIR 30 Ca l W N
of Andhra Prades : 27 Cr. LJ 133 :
65 . Shai~ara~. vs . s~~le Sa hu AJR 1925 Ca l 1020
?anb Ha11 v. M uchiram : 16 Pat L:r 5 .
64
66 .
67.
R
Q~~: th Lah. Empero r
,mprcss v. Ganga Ra
AIR 1935 Pat 472 : 37 Cr. LJ 91
m Santa Ram ILR
9 Hom . 135 .
 I A\VOFCIUMFS&.CRIMINOl .OOY

When.: C' YtdctH' l' of pc1ssrss i0n i~ found unsatisfactory, there would he no theft.~~ Where
the nc-cnscd w:-is com ,ct1.'d 0 f having dishone stly carried away the produce of a tamarind
tree:
\\-\nrh the nccuscd contl'ndcd was sold to him , it was held that the conviction was bad 1n the
a~scncc of J findmo. upon 1.'ithcr of the questions, whether the accused was or was not
the
ownrr of 1hr produ~r . or whether the complainant had or had not a right to possession
of the
tree- .~~
To prove an offence of theft it is not enough if the possession of the complainant of the
mm·ablc propC'11~· in question is established. Dishonest intention of the accused in removin
g the
property has to be established in addition . In order to prove dishooest intention the question
of
title to the property certainly will enter into the picture . A bonafide claim of right would be
good
defence in a charge of theft . When the accused sets up the defence that he had a claim
to the
property which he took away from the complainant it is for the prosecution to establis
h the
dishonest intention to show that this so-called claim was not made in good faith, but was only
a
cloak to conceal his dishonest intention and that there was no substance in the claim to
the
knowledge of the accused himself. It may be that the accused acted illegally even on the
basis
of his claim to the property in dispossessing the complainant, but in a case of theft, the accused
cannot be found guilty by holding that he acted illegally in dispossessing the complainant.
Theft
can be established only by proof of the dishonest intention and not by proof of illegality.
The
accused may be liable for such illegality in tort or under civil law or may be guilty under
some
other section of the Penal Code.70
In Osman Mistry vs. Atul Krishna Ghosh, 71 on acc·ount of dispute concerning land,
an
order under sec. 144 Code of Criminal Procedure was passed P-rohibiting both parties
from
going on land and exercising acts of possession. While that order was still in operation,
one
party went to the land and cut away paddy. It was held that no offence of theft was commit
ted
as it could not be said that the land was in possession of the opposite party.
The accused went to a railway godown with a carter. The latter removed a bag from the
godovm and the accused accompanied· the carter to his house and there took delivery of
the
bag. The bag consisted of pilferings from a number of bags consigned to different persons
. It
was held that the bag being in the possession of the r~ilway as bailee until it left the godo·wn,
the
actually taking it out of the godown was theft and tfoit the accused and the cartman were jointly
guilty of theft.72 The wax in the company's refinery suddenly caught fire and flowed out
in a
molten state into the adjoining rivers where from it was collected by the general public and
was
freely bought and sold in the market. The company pennitted the salvage which they themsel
ves
\\'ere unable or unwilling to undertake to continue. No steps were taken by the company
to
infonn the general public of any intention to assert ownership over the wax. It was held that
the
company must be deemed to have abandoned its right of ownership over the wax and the issue
of a press announcement after the salvage was complete in assertion of its right by the compan
y
was immaterial.73

Ci& . \974 Chand LR (Cri .) 359 .

EiC) C\ ·
· ,mna Garata v. Emperor 11 Cr. LJ 484 : 8 Mad LT 118.
10 . . .
· Sa\ish Chandra v. Rad ha nallav AIR 1962 Tripura 25 : 1962 ( 1) Cr. LJ
(.\) Cr. LJ 6&S
766; sec also DoJakhat v. Khampthang 1961
l\ · A.l.R \<)49 .
12 . s ,.. Ca\ &32 : S \ Cr. LJ 97
t,u,._, C'nan<l v a ·
11 · ·ran
So\)n L' .· ~ mpcror AIR \918 Pat 314 : 19 er. LJ 884 : 47 Ind Cas 80; 3 Pat LJ 354.
1
" · unna Oil Co. Ltd . AIR 1941 Rang 166 : ILR 1941 Rang 153: 194 IC 887
.
,
2'
·sol
, ,10 ·'( . colloW a cow and d'isappear and arc i1ot c ~ J49
) 1 cks l 1 . •ou nd o
I
t,t11o ld to have ost possession of the anim• 1 n search by th
·11ere lJC }le cl s and no th c,n.l of. th c owner ·
v
, • 111 tt
st crn can I k .
1,..,r 1. a ,c,
. (,,~6 k 5 a lorry on urc-purc hase system from a co
rill ta C . . .
r

1.-c person ed the nght of se1z111g the bus in ·th mpany which un ccr J.
the
, . f~
1
escrv . , . e event of d f: .
1 t h:ts rd 'ault is made, then thel company is not cn·t1·tl c·d to rctckau, l_t i_n payment f
. ,c,1 d e1, . . f . , r,
11~
ret11 ,ents- an or b)' rcmovmg it . rom t 1c hands of the ptirehascr 's a _c possession (>f thc
i~stnlt, , force or implied, to give any consent. If the compan . scrvant8, who had nr_1
1
. b' ·css • · Th Yor its ag
111r1~_.t·,·. c~Ptd: .cc under this section. e question whether th .· e_nts do so they arc
~,11. · 0nen . •1 c ownersh 1 h d
.~111 l . oi an scr is wholly unmatena as sec. 378 deals wi'th possession . P a or had not
·1~ pure 11a . ad
~i11 .JtothC ·011 of the lorry was vested m the purchaser and th n not ownership ·
.;,Co sess1 e compa
in payment Of . ny was not entitled
1 asses sion of the lorry, evenhthough default
f ~·: cgal pos
1

1·11, any mstal h

,cu',er P l e consent of the pure aser. Possession of the dnver . ments ad taken
1,rt · l 0ut tl
and th I
'1arf.. ,,·1t i f their master and they were not competen t to gi , e c eaner was the
r·. cssion o ve consent on behalf of their
f5 i5
st t be said that a person in leaving the cycle temporar·1lYouts1.de the ma ket · h
01a er.
It canno . . . h. r : wit a
back and take it, either abandons. or loses it. The cycl e is. m ts possess10 d
· ,to come · · . n an
"'·he''nhe 1eaves it he does not mtend to give up his possession or his do m1mon..
. over 1t. Under th
''. e tances .the cycle cannot be said to have been out. of his possession at any time. . e
f • . h. . and
1rcums
cconsequentl)' dishonest remova1o it wit .mtentton . .to
take 1t out
. .
of his possessi·o Id ,
· n wou amount
to the offence of theft and not to mere cnmmal m1sappropnation. 76 ·
Cattle turned out to graze in the pasture or jungle are still in the possession of the 0wner
unless the contrary is s~mvrt andthetaki~1g ~f such ca~le is theft and not criminal misappropriation.
Where the taker sells 1t subsequently hts dishonest mtention while taking away the cattle can be
77
inferred from the fact. · .

Removal of some bricks which had been left lying for eight years (i.e. abandoned) is not
78
necessarily an offence of theft.
It may be the intention of the owner of a moveable property to destroy it, yet as long as
the destruction or abandonment is not fulfilled, and as long as it is still in the hand of the owner
to counter-mand such destruction or abandonment, the property is still the property of the79
owner and the taking it out of his possession is theft, and improper use of it is breach of trust.
Abailee entrusted with an article to repair has no lien over it, if he has not comple~ed_the
th
repairs within the stipulated time; or when time is not of the essence of the contract, wr m_a
reasonable time; and he cannot refuse to part with it, after doing a certain amount of work, . till
th
payment for such work in the absence of an agreement to receive part payment for e ,~ork
'
. entitled,
done·' andthe owner 1s h' rt' le •without payment
· for
in the circumstances, to recover is a ic
the same so

~~-. ~~t !:we Zan v. ~tnpcror 18 Cr. LJ 300 : 38 Ind Cas

.
26
332: lO Bur LT 1.
76. Stat nsom "· Tnloki Nath (1942) 17 Luck 663
77. Adhe v._ Parshottam Shamji AIR 1954 Sau 33 : 1954 Cr. U 542 ·
78 argir Cl h · 80
· Takit T . ' otcgir Gosai v. The State 1954 Cr. LJ 2 · 1 3 B LJ l 97 . 84 Ind. Cas 43S .
79 . Moti v u~, 1 " · Emperor AIR 1925 Rang 113 : 26 Cr. LJ 2~ : ur . 83 li~d. Cas 893.
7 260
&o. t .J. J~ctE.;,pcror AIR 1925 Sind 21 : 26 Cr. LJ 189 : 1 Sit1rl LR .
1
a v. Ell\pcror 192S ILR 53 Cal 174 .
)),, .
 LAW OF CRlMES & CR[MINOLCX1V
IScc.178 io l ~q

Where :m electric kettle was given to a _rc~aircr for repairs., and he did not complete the
w0rk within the stipulated period, or even within a reasonable ttmc thereafter, and the owner
forcibly removed the a11iclc from the repairer's shop, without payment of t~c su m demanded
by the latter fur work already done to it, it was held .that the owner was ~ot gu~lty of theft, as his
intention was not to cause wrongful loss to the repairer, or wrongful gam to himself, within sec
24 of the Penal Code: but to remove his property after the lapse of a reasonable timc.81 ·

ldol is movable property and can be the subject-matter of theft. Thus removal of idols
from the possession of Pujaris maintaining the idols as agents of the Hindu Community amounts
to theft..82
Delivery of S)-1nbolical possession is only effective against the judgement debtor. It is of
on effect as against a third person and his possession is not disturbed or affected in the least by
delivery of such possession to a purchaser at a Court sale. By the deliverv of symbolical
possession he is not dispossessed at all. 83
Where, therefore, the complainant is found to have been in possession and to have grown
crops, the fact that symbolical possession has been delivered to a purchaser in an execution
sale against a third party alleged to be the owner of the land, is not proof th~t the possession of
the crops has been transferred to the purchaser. It is no defence to a charge of theft of the
crops. A mere claim that the property had passed to him is not enough. 84
A dead body is not a person. Removing ornaments from a dead body cannot be taking
property out of possession of a person and as such would not amount to an offence under this
section. 85
Edible bird's nests are not in the possession of any body until they are'collected. A person
who collects them without a licence, therefore, does not commit theft.86
8. Under section 22 Movable Property
The term 'property' conveys a compound idea composed of that which is its subject, and
of the right to be exercised over it. It is everywhere used in this Code so as to be applicable
exclusively to ''that which is its subject". 87 This section defines "movable property" The definition
is not exhausive. Moreover, it is clear that the word "property" is used in the Code in a much
wider sense than the expression "movable property". 88
The General Clauses Act of 1897 says that "movable property" shall mean property of
every description, except "movable property".89 The Indian Registration Act says that "movable
property" includes standing timber~growing crops and grass, fruit upon and juice in trees, and
property of every other description, except "immovable property". 90 The Indian Companies
Act (I of 1956), s. 82, provides that "the shares or other interest of any member in a company
shall be movable property, transferable in manner provided by the articles of the company."
81 . E.J. Juda-h v. Emperor 1925 ILR 53 Cal. 174.
82 . Ahmed v. ·state AIR 1967 Raj. 190 : 1967 Raj LW 54.
83 . Banka Nath v. Abdul Kadir 37 Cr. LJ 1098 : 39 Cal WN 1306 : 165 Ind Cas 154.
84 . lbid .
85 . Muhammad v. State 1974 Cr. LJ 204: 1973 Ker LJ 773.
86 . Emperor v. AW Su 8 Cr. LJ 473 : 4 LBR 275.
87 . l st Rep., s 82 .
88 . Dalmia R K (1962) U Cr. LJ 805.
89 . Act X of \897 , s 3 (36).
9 0 . Act XVl of 1908, s 3.
 ~- ., '\ ' "\ '\I \,(~I I
.. ,,,\ nt'\l"'"'•
"~'. l~"· ,hnt
1hc '"'"1\ ~,olt'n "' ll~t hnv \\\
\~·oi ,onrd 1() ~n~ thm l\\\h1ch ~(WCr (' ~('"'(\ :tn "
11 j ,,t, i\h fl ,l ,l l\e.r~(\n
. d 1¥1 ( i,,hl'
I I· I
\ll~1 ~l't tH''' 1~ ~norm~t, np.t\\ n~t h,, ~ "t <'fin
,,11'' 1 th'~· . f\n,. ' \ ,1111,
, ,:.r l.., f \hl' pH\l'l'~l' nf pnm ~h,n~ r " ' 1 , \ , h '~ · ,c-~~ th " 11
,1,1 .:,d ('I tht\~ c , 'Cn ,, i\\ I'\ i r1~\\1,·,( ,, \I n •11q ~.
, .:,r11. l .. ,~r of rn~nkmrl . ., VC.nt:\\ " \
, .,r0 \.,"111 \
, i111 "'n ~l,1 ,. rc.nd,\y d,~ttnnn,(I\ r: to M,0\1" M ~t I,,, , , '\1•' 11
I·-\,, ""if I r1 ,11
~ ,, , ('.~ n·o ' ,~ ri~h
, / '''"'' h \'tfl fn"m ~ hrdl},1.'.. of a hoy ' it ,, f"
i,- . n ,, . \\iho ta'- m <"nn,cl\. ,,,~1 t nrn,"111f\,'
tt'~r.-
1 i. .
1f a $Cr\'~nt w )(', l 1p~ h1s \)Cl) it, ~e~ ~1on f , ~ q th'
,,11
'ii,,~
,,1,1 ,,,1 11~- l
. I j
~
h' ('~ rnn, an 'I ' :\l' t rif 1 I ,
I•?' ~\ fr "'n' thr rod~ct oi a person, it
,~ m~st . n11rr " ' t• "II,'
I\ ('ll \t i. wa_ s held th 'h er ~ lnk W\u, p nr',q 1 II• 1111,rt
\) 1

i\~, "' , ' nd n1.'1 ya\uc a~ a com yet ,1 had som at C

'
n·re
e v \ \vas g,11\tv of th t\1hr ~r r 11 ~~r1 ,, ,, '~ ,
1 1
'
t l l 1,
;, n1r ~~ i\ c\\rrcncy note was cancelled b\, a uc as . c I her ,1 11 1
j
tear · ·
f f a Ptcce of n
il,l'o .
)11,f'l · . n\0 pieces an t 1cn dcstro .
d \ J c mg o ce t . 1" a1rd. '1 ' 111 1,,,11 111t,
~t
nc. 1t 1 y1ng it by b . rain partt ht1t 1 • t \~Hr L.11 ,, v1 ,
' i\1\\I • ~ --lkd was not re nu lhus and
. urnin g re .
.ma1ned It \,V 'l o h'Id1c lih1nh tr, prr\r l"1i;
cou\d be th t
~h l-.~n~ :1. · . .
h,,11~ between mtent10n to destroy or abandon d Ject•matt e sub c t ~, q1 .
<l,

n11;t10n f . er of theft fh H h 1 nnr,

,~:~ \f the o\\11er o property mten an actual d . er'.! i1y 1 .,,,
-,~(~\ ding to destro estru ct1on or aba d , (. ;ir
", i~ ~~ri;.0n for the p.urposc o destruct
f · Yor aband . ' n nnnicnr r
.~,r..) \'~ . · · ·
ion he sti\\ retai ns h. . hon property. hand s it nv ;
· · , , i-mr, it out of \us possessio lS rtg ts th
•;i( 1als . .
n 1s thef t and improp . _as e owner of the Cr to l
,., er use of it ts b
•
t offen ces against property in common law
• reac h of tru:;t 91 prof)(:rtv

1\
. SECTION 1-HISTORICAL OUTLINE

Common Law Definition-The distinctive feature of

th . .
it",ntheph\'s1.cal or matena . lh
arm
th
ey cause to their victim e cnmes so far discussed h·
""' . · s rather th
:it\' brmg to the offender. But we now pass ' an any economic. advantage ,lS
~. . . to offences of dishonest · · h th
µurpose 1s the unla\.\rful ennchment of the perpetra~ors ~vith Y, m w111c c mam
out necessarily doing any physi cal
hurl to person or to property. Of these the most ancient m Engl
ish law and the most common at
me ?resent day is theft, or larceny. 94 The first comphrensive
definition95 of theft for English law
was given by Bracton96 (who borrowed it, with
some modification, from Roman law)97 as
~ntrectatio rei alienae fraudulenta, cum anomo furandi, invito
illo domino cuius res illa fu~rn
t·Tue fraudulent handling of another man's thing, without
his agreement , and with the mtcnt1on
,:if stealin g it'). The Latin word fraudulenta
had a wide meaning in Roman law and co1vered
dishonest dealing of many subtle kinds involving dece
it and trickery; but in the days when our
common law cnm . es were h ·
. first defined t e economic re1a1·ions of men were simple and the
. • th
mam need of society was for legal protection · of physical force rath~r an
. . agam st cnme s . . d th '
against deceit. 98 The crime of theft, or larceny, began as a t espass v1et anrrus, an c: purpu!I'\!
· r . t d tinnustakable fonn
.
was no more than to punish such dish as t00k 'the v101en at
1
onest dea1mg
of a change of possession' .99

;- N t N
'.\ 19 l O by l\atd1 dur .111J lu,>, l.1
92 Fo e · p. 162. . d .·•e·• on Nowin ber . '
· ranc,s Manik
(Unrep Born)
°
um Criminal Appeal No . 342 f 191 O CCIU u
'
93 · · d) 21
· AIR (Sin
94 Moti(~9~3) 17 SLR 260 : 26 Cri . LJ 189: (192S ) ·
. Latroc1nium
95 ·
96. See L' Steph en, H'1st. C nm . . Law, 111 129 130
, , ·
9~ · 1b 'l 'l
. ," un~,
. .J, c . .J2, fo l SOb . .. r)'III'' awa) , 1 11
'· lust I I ''tal<ing, aOL1 car "
9&, p · nst. lV, I·, Dig. XLVll, 2 . 1. 3 . d
think, be little ou_btl that lw
e Eng,\ish idea ot. the\\· ·
o\\ock and Mait\and 11 498 'There can, we
Whi h , ' ti e very core ol l I
'
('\9
' · \bid.
c our later \aw insist s had been from the first l
'
 2952 LAW OF CRIMES & CRlMINOLO<iY l'-kr, I /Vi 11 I \ ..r,,,

The actu al t::i king nnd ca rrying away of the mat eri al ohj cct itself h;i q rcm:1it1<'d
.. . I . f 1· N , tr1 th,..•
Present daY as an essential roq111 rcmcnt m t ,c crnnc o stca mg o one c;i n C<Jm,11 ,t 1::ir,,,
. .. . . ,,f".n/ r,r
an~thmg mcoq)()rea l such as a ropynghL or a debt , or the value of anything t()ri
Narrow Conrrpt ion of Thr.ft in E~rly LAw- _Thc ancient co~ccp t1 nn nf theft N:ci q 1

subsequently na rrowed still fo rt.her by vanous subtleties which were introduced hy iurt ,~ 1~ 1
decision. Some of these limitations would seem to us unaccountable, if we did not knr1w th::i r
the~· had been inspired by motives of humanity. The desire of avoiding capita l punishmen t ,~nri
in later ti mes the desire of restricting the number of offences in which , by the old procedure ,n
trials for felony. the accused person was denied the support of counsel and witness) 101 led our
medie, ·al j udges to invent ingenious reasons for depriving many acts, that seemed natu rally to
fall " ·ithin the definition of larceny, of all larcenous character. For so severe was the law of
larceny that it exacted death as the penalty for stealing, except when the thing stolen did not
exceed the value of n,·elve pence; see 296, post. This severity was ultimately tempered by two
active forces. One was that which Blackstone102 leniently terms 'a kind of pious perjury' on the
part of juries, who repeatedly assessed the value of stolen articles at much below their reaJ
103
value. The other force which similarly opposed putting men to death for thefts was that
ingenious judicial interpretation which we have mentioned above. 104
(ii) SECTION 2-STATUTORY DEFINITION
The first statutory definition of stealing (but not a definition of larceny) was given in the
Larceny Act, 1916, 105 but this did not purport to make any change in the common Iavv of
larceny as it was then understood to be. 106 It runs as follows :-
For the purposes of this Act
(1) a person steals who, without the consent of the owner, fraudulently and without a
claim of right made iri good faith, takes and carries away anything capable of being stolen with
intent, at the time of such taking, permanently to deprive the owner thereof:
Provided that a person may be guilty of stealing any such thing notwithstanding that he
has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently
converts the same to his own use or the use of any person other than the owner:

100 . Post, 259.

I O1. An le, 74.
102 . 4 Bl. Comm. 239. .
J 03 . Thus in J 808, to avoid convicting a woman for the capital offence of 'stealing in a dwelling-house to the value of
forty shillings ', a jury went so far as to find on their oaths that a £1? Bank ~f England note was _worth on\: 39s~
R.v. Macallister (1808) c .C.C. Sess. Pap. LXXXVI, 18, Sir S. Rom,lly mentioned another case, m 1732, ."here
woman had stolen two guineas and two half-guineas, yet the jury pronounced the total value of the four coms to be
'under 40s .' In J823, in an indictment for stealing a guinea and a sovereign, their value w~s pr~dentl~ placed at ~en
· · more proba bl e (Th e r·1mes, 21 Oct · 1823) · See Radz111ow1cz, Hist . Eng. Crun.
pence, in order to make a conv1ct1on
Law, 1, 94 et. seq.
l 04. For examples see 270, post.
105 . 6 and 7 Geo, V. c. 50, s. l. . ,, B'll . th ' g but a careful
106 . When introducing the Bill in the House of Lords the Lord Chancellor said : fhe · 1 .. . ts ~~ m )'dated
· d re d o ffiences .. · Tl 11's Bill has faithfully 1
· · of all the existing law relating to larceny and km
comp1latton h conso n law
· law and not imposed anything new.' The words ,eXJstmg
th cxi·stmg · · Iaw • mus t be taken to mean bot commo ·th larceny
e
1
~~db atutc law (e.g. embezzlement fraudulent conversion, stealing dogs, etc.). The Act only dea ~ ':"' such as
st
na le on ind·,c t mcnt and kindred offences.
' , . bl I mmary conv1ct1on,
the Ii . Some thefts that are pumsha e on Y on su
ma ITcncc o f st ca rmg a dog, are dealt with in unrepealed sections
0
· o f the J.Jarceny Act , 1861 ·
............, ,s1)l ~- - - - - ••J l \ )l (Y
nr -:r:1Nrt·f<>
----...... ,~,,,,....... . , "' . , N
.· . rL·ssion takl;s mcludcs oht ai .
•:· I c c''P .. .k c ntng the
,'l (') I \ ) h~· 311~· t~·1c .~ . 11o~~c~~1<m i·1; \
1
( b\' inturndatton.
(h) . . k l
indcr a nusta c on t ,c part of' th
(C ) l C O'v
t::ikcr that possession has been s b vncr With kn
• . 1 o o tai d <>wlcd
l) bv iindtng. w ,ere at the time of th n_e ; gr. rm th<, p·
tu . 1· db c find1n h ;:in •Jf 'h
c:1n be u1scovcrc y taking rcas g t c finder b ':
. , . onablc steps· cl1cvcq th
C c~prcsston earned away' includ ' ;:it fhc r,,,•✓ 111~ r
(n) tI1 . _. b . cs any re
·hich 1t occupies, ut m the case of a th. tnoval of an th
'' . tng attached Y ing frorn h
detached : ' only ,fi t ha b t c pl;in~
· , , · .s ccn 1
... ) the expression owner mcludes any p rt crm plr.1•I· ·
,e 1
(111 · ·
1
control of, or a spec1a property in anyth· a owner
, or person havi
.. ' mg ~apable of bein ng posscs<;jirm 0r
this basis, a defimtion of the narrower crim f . g stolen ·
0n h ' 1· c e o simple la
·h· h101 declares t at stea mg 1or which no speciat1oe . rceny is established
, ,, JC 109 c. h . b . . punishment . in section
~· . otl1er Act . ior t e time emg m force shall be . 1 is provided under th A
ar an~ . c. . s1mp e larcen d is ct
th [imprisonm ent] ior any term not exceeduig five yea ' 110 y an a felony punishable
11
' •e"' of other forms of felonious stealing that the punish rbsl · _ The Act also recogmzes a
ran •; . . c 1·c. a e with
, ,af\ing up to 1mpnsonment 1or 11e. Some of the graver of th hperiods Of Iong detection
~l~sed together as '~ompound', or ,aggravated'' or ,grand' larce:s\u:d~::fore the Act been
to :simple' appears m the Act. No definition of 'larceny' in the t ' .e o~these ant1theses
,c. 1 . 1· ' . '
:b
s ract, is given; probablv tt
must now be 1e omous stea mg . The margmal notes of section 5 11 d 16 (b) ,
'1 ' · f · . , an of the Act
applythe tenn arce~y to species ~ stealing which do have 'special punishments ,, and moreover
are less severely pumshable than simple larceny; but the modem view is that marginal notes arc
not part of the statute. 111
Under Dishonest Intention Actus Reus in Larceny-The actus reus in the early
common law was simple. It is abundantly clear thaJ it comprised only three facts and \~as
constituted when a man (1) without the consent of the owner (invite domino), (2) seized a thing
(cepit) and (3) carried (or drove) it away (asportavit). 112 These essentials still exist, as is to be
seen in the definition given in section 1 of the Act of 1916. It was essential at common law co
. Ck
aIIege and prove both the taking and the carrying away: as . ,0 e sai·d,113 'an indictment quod
felonice abduxit equum is not good, because it wanteth cepit · .
. . his definition of the Latm word
The Taking-Notwithstanding Bracton's adoption, m fi1I d~alino0 with movabk
cot · 11 4 dd nlytosuchw rong
n.rectatio the English law oflarceny exten e O Ofth c
' · . •
h lain act
3

. of seizing
. l 1
Property as consisted of an actual phys1ca of control, i.e. t e p
c iange
. ,. ~I' s \7 \~). Ci
107 As . . · I pu11 ish111cnt , ' · -
· modified by the Criminal Justice Act, 1948. y' constitute a specta
I08 E
· ven the words 'to be punished as in the case ol, simr · le tureen
c and P. 293.
I09 R. v. Millar (183 7) 7 C and p 665; R. v. Gooch ( 18~8 )_ 8!in~ Act, 1866, ss. 44, ;,5.sec post, 2'J7, a11J R. v. Bryant
. E.g. the Army Act 1881 s. 18 ( 4 ), and the Naval 01s_c:,cr crime of 'simple larcen) , .
110 . A . ' ' . • · a specut
(ls to the question whether this prov1s1on creat.es 297); Russ. 1I 65 . . f England ( I938), ~ XI 46.:.\ .
- . , . ·tavit inll'1 catc--l the
I]] _9SS) 1 W.L.R. 715; 39 Cr. App . R. 59 (post,, 4 l·lalsbtlfy's Laws oE R. 60 that the word aspo1
112· Nixon v. A-G . ( l 930) 1 Ch. 566 at PP· 593, 59 , ·. y ( 1946) 2 All . . ke per i11cuna11, .
. Stud ' . · R v I urve ate shp ma
ents should note th at the suggestion 111 · ·d , -an unfortun · \ha\ sy~\e1n a\sl.)
abse garde as · althO\lg'1 \I\
I13 nee of the ov-.ner 's consent must be re . with the thing, ·
I I . 3 lnst. I 07 . . of dishonest dealtng
4· Which · nd
in Roman law connected almost anY k•
th th
e ing had to be moved .
 Lt\WOF ClllMES & C'HlMINOLOOY ,. rscc 178 lo lR<,

thing and tnkinu it awa\'_,,~ 17,c taking t\\\tSl be o seizing of the thing acquis
itively. ft is not
eno~gh mcrc-\Yto touch the 1hing. or to move it or even to pick it up if these
1 actions arc no more
than inqmsiti~rc in order to ascertain what the thing is. What is needed is a taking
into possession
~
Sl:Cpost "'"~
L ••• •~ :'I"
~o.

The Seiiing\ a Trespass- A strict distit1'ction was made between the seizin~
of the
thing. which could be effected by laying hands upon it without moving it, and
the carrying of 1t
awaY. for ,,·hich it was necessary that the whole of the thing should be moved from
its place. To
lay hands on a man ~s thing " ~thout his pcnnission would be a trespass, therefo
re it was held
that there could be no larceny " ~thout trespass: the converse, however, is not
true, because for
larceny in addition to the trespass of seizing (cepit) there must always be the
m?ving away of
the thing (asporta,~t) 116 also. But the taking and carrying away need not be by
the hand of the
prisoner: it is enough ifhe procures some innocent person (or even an animal,
such as a dog) to
take the thing for him.m
The Asportation-The slightest removal of the thing will suffice and the
crime is then
complete even though the thief at once abandon the thing, 118 or subsequently
change his mind
and return it. The test seems to be: Has every atom left the place in which that
particular atom
,,as before? Thus there may be a sufficient asportation even though part of the
thing still
occupies the place which some other part of it previously did; e.g. by half-dr
awing a sword
from its scabbard, or pushing a bag· partway out of the boot of a coach, 119 or
pulling a pocket-
book not quite out of a man's pocket. 120 But if the thing is attached either to
the land or to a
person it must be entirely detached therefrom (see 278 post).
(iii) SECTION 3-POSSESSION IN COMMON LAW
To begin with, in the common law there were none of the modem difficulties
in fixing the
precise meaning of the word 'possession', 121 which in those days denoted
actual control as
understood in everyday life; the word had no technical, legal meaning. If a man
had a thing in
such a place and in such conditions as the ordinary English owner usually
kept it, then he
controlled it sufficiently to make it a felony dishonestly to take it away withou
t his consent.
Thus for the purposes of law oflarceny a man held in his possession aii his goods
in all parts of
his house, all his domestic animals in his stables and fields, the fish in his fishpon
d, the bees in his
hive, and so on. But strictly speaking he did not, in this simple conception, 'posse
s' such of his
things as another person , e.g. his servant or his guest, might, while on his premis
es, be holding
· at any given moment, although (in the normal case) they had taken up, or receive
d, these things
I I 5. Anon . ( I 584) Crompton 35a (T.A.C.) Stephei1, Hist. Crim . Law, Ill,
133, conjectured that this narrowness in early
law was fa voured because the only available proceedings for the owner were
(a) appeal, in which he might lose his
life in trial by combat, or (b) indictment in which, although successful, he
would not be able to recover his property,
which would be forfeited to the Crown. But by civil proceedings for trespass
he would not have the hazard of battle
and could be awarded compensation .
116 . LarcenyAct, 1916, s. I (2)(ii ).
117 . E.g. getting an ostler at an inn to saddle another person's horse by
pretending that it is your own; R. v. Pitman
(1826) 2 C. and P. 423 (TAC .).
11 8 · E.g. to take plate out of a chest
and lay it on the floor, R. v. Simson ( 1664) Kel. 31 ; to shi fl a bale from
the back
to the front of a cart, R. v. Coslet ( 1782) l Leach 236 (but not so where the
n prisoner had raised up and slit open one
e u only of a long parcel of cloth, R. v. Cherry ( 178
I) 1 Lench 236 (T.A.C. )); also pulling an earring from a
;oman's car, even though it were then caught by and remained in her hair,
119 ·
· v. Walsh (1824) l Moo 14 R. v. Lapier ( 1784) l Leach 320 (T.A.C .).

I
\20 . R. v_. Taylor (191 l) l K.B: 67~
\ l \ · Which Eric C J · R . .
111
' · ·, · v. Smith (1853) 6 Cox S54 called 'that vaguest
of all vague questions '.
 N .
f>OSSl-: SS IO fN ( <>l'vlrvf(-)N I ./\ W
S l•: C rt O N 1 -- - - 1•
••
'
,
- <i ro isO I th i s it fo ll rh .
se n t. F ro m o w ed ' in C ll'l<) 'll' :in , .,r.nt IJ' r,, 11 I •'I r 1 1 •
. 1 ,,
ds ,, •,t h h i s co.n I r,c lo n y if th ey p ro cc cdcd I h 'Jnc~ tl y 1,, , 1y,• , ,v1 •,I '
~ -· 11 ·111 . J 11ot CO ll ll ll ll t. l d
C . < iq •n::t ·1"1 ,.,1 11,
,1, ,
I
,11c1r •·0 11 l . o m i n o o f the dc fitn .1t1on ap PI'1cd hflth tr, th 1 . ·1.1'1r1 i,C r,- 111 Ill \
111 v 1t o. ' • -r l -<
1
,, l".
,,,1,1 c th e w o rd s •
'
1h l'.'
rh•' 1 - I ,e ,11
1s sp o rt av 1 t) .
:1wav· (a
a~ ,c . I l
owcv.cr ' th c <1c~ ir c o f prnp crt y ri vm , .r ·,' tr, '~ "V ·; th '·
th 11
1 ~ · t'lt !Y lll g
•
• n - QU t·t c c a r y, ,1 '
/1C ' . . ss io
po ss e • , . , . · ns o f th e c ri m in al f fc l< my C()11ld g1vP. th ,,.m ;J~'" "' ,1,
1 n ct io c Ia w Q '' ·
1,cj?A ·hic h th e ti e, cc sa ·udges· t 0 c reate th art1f, c1al d n r.t ri n r·. ~ ,f I •.w,a l /
1,11
u e s ts led the 1 c
· ftl )J l ,, th e ir se rv a nts o
rg · l I th fi
· ed from actual p. hysica contra . Under 1~ 1ctirm th<"- r ' nr:, ''• i1
f w
,n1IL'1.. 1.,. () .
c._ as distm g u1sh . d ing th th cd th itc:3 I r ,r,m rr,1
/
d,~/ ll,11 ,0 ~ . ' l' ssession notwithstan a c all ow e act11a l ph :;
11 . p o . o f h.
- c'- s
. -t:iinrng le ga
h l· d fh 1s servant or IS guest,1
23
11l,~srcJas t(;• p a ss .mto t e 1an s o
·
1rC-•th C t111.11g
1 to
n ly reta ined legal possessi.on so long as the 'le rvant was
mast"Ier . o .
-A t first the
· If d
l,t S er·v a n ts f I1e th .mg w I st still on
h the master' s premises or Iand ·th e maste r ha
th d . h
k . away from his land he en ts bonestl ppropn ated ,t
ya this •,1:as
control o t e It Id
I C
s c nrant to ta er it wou e felony if -a servant purl 0 med
. ·en t 1
g1' 11. ttc. d the I a d o u bt as• to wheth which had
-111 There was a so h els in a casket d b en expre ssly comImrtted
P(_; 1 )' ·124 . su e . as Je w be d
o fe on ouse .itself property rpretation an y statute were m , a e unt, rt was
n 01 the h rther exte h nsions by inte - of su h f h. ne
fr o . b arge . 12s But fu
a s le g al p o ss es sio~
ri° Ids . m as te r s propeArtcty as 19 1 S
e r is cc mne m the Larceny
to !HS c hed that a servant nev se rv ant. A nd this ru le
.. on ·1 .
· .
on ed
·
blis si tio n a s h ss ly m en ti
e o f his po. h h . ant from the ordinary ba I ee w o is ex. pre
estat ols by virtu d. . e se.rv . not acting in th at capacity (e .g . if he isn on
.
con r which thus 1stm'fgmhs e s t at the time en trusted to hu b"
'
17 . e se rv a n t is e o f a th in g
s. , 1. O f course i . t . . e a baile mes int~
. sect . . Id
e rt a m _ c1 rc u ~sta?ces becom in the master's possession co
J.I1
e cou m c already ver been
holiday) then li r, a th m g which is not ide so u rc e, then it has ne
e v e u ts riate
his master. Wh
ere, how
th e m a~ te r from some o ro ce ed d ish o n estly to appro p
e servan~ fo
r should p
the hands o f th th u s a c q ~ lf e d control o f it,
ant, havmg e master. bv a statute o
f
larceny ifthe serv s the legal possession o f th d o f th e o w n er an d
he came to the· ai of
it before it reac y e v e n tu a lly fe lo n ei s , u n der -the name
minal polic e list o f t
Here again cri d th is si tu ation into th e fl y st ate d th us : the dishones
va te ay be b ri
1799·126 the le 127
gislature ele fo re th e distinction m m a st e r 's possess ion~
but
th e re out o f his
N o w a days hich he takes r 's possession .·
:s
embezzlement. f th e c h a tt e l w c h e d h is m as te
its larceny o it has rea
servant comm h ic h h e in te rceps before
w
o f the chattel
embezzlement 130 carried away from
the h r.
129 or stones,
10. Cases -l o a d s o f earth taken from an
ch:.umc
n e. - C a rt rt h si x p ie s
Sto earth w o ay be
(a) Earth and th e ft . B u t n o t clods o f b je c t o f th ef t, but there m
f
of another, are
subjects o 131 A house ca
nnot be the su
e n t.
to G o v e m m
bed belonging 132 y 8 1.3 Ern ·l . lV p35~h .
ri a ls . 0st. . · !
theft o f its mate n tim es . Se e 29 0P
C ) an d (1 473)'d · to· th e market, and h\
lled i~ moder · Ass . 39 (T A
· · ·
e' it came to be ca 2_7 L tbr. t to n c
122. Or 'con struct iv
er at an in n : see ( 13 53 )
de liver a ho rs e todml~, sen:an
·
123 · ' Guest , includes a cust om , pl. 21, 'i f I h y
II, Hil. fo. 14 th roug h e ,ver ·
. 21 H en . V by th e orse
124 - (15.06) YB comes legally Hen. vn (, c.
7).
· · it is not felony for he in 15 29 (2 1
with it, ute
m~ved by stat not a crime at
all.
125 · Such doubts were re it w as ost d
efor e this st at u te
, 19 16 . Sec .318 por .
126 · 39 Geo . III, c. 85 . B
) (b ) o f th e Larce n y A ct ·r
1 npltedl dcrc
y
(1
ained in s . 17 master has ex
press1Y or 1
127. Now cohnt th e
128 · Or sue other destin at io n as d 531 (FB).
4 27 M a
129. Shivrarn (1
891) 15 Born 792 . a ( 19o ) · LJ 632 .
adula Vcnkann 18 C
130 S . cnkatappayya Sastri v. M ( 1 9 17) . n . 558
· un V amas w am y ·
13 I. Puhric p ro~ecutor v. Tsandra R 6 ) (PC) 7: I Cn
. LJ
1 (1 9 0 4 -0
32 awtara Singh (1904) UBR
.N
 .:..,_
2956 _ _ _ __ __ __ _Lt\WOF
_ ___ ___
CJHMr ___
·:S & crurvfl __
NOL< ___ ___ _l ~ r.
X ,Y l/~rr, ,
- 11,..1I
(h) Cmi1s. - · T he rc::i l tcs l 111 n ca se of c111 alleged
then of crop.<i grow n <,n lr1n d
. of . h::id I WI I 11
,yh1ch the p:111,cs
'
grm\11
0
t 1c crops.
•
1crc t 1c comp IHinant
· ·s show
1 n to h~vi · gr ;i •i ,''
. ~ ' () \V il ti
crops. the accused ~uttmg and rcmovm ? the same woul~ he g_ u tlt~ of t~1cfl:. 111 Merely bci:;i, , 1~
I

tbc_accuscd w as la~·mg a claun ~o the disputed Ian~, he 1s not Justifi

ed intakin g away r-hc C rr: -
which is proved to ha\'C been raised by the complamant on a land on w hich he: 1s proved
11
P
in actual possession . 13 4 Generally speaking, in the case of the fl: of crops, the ques
. I1e 1irst
- matter to Iook to, b . .
tion whrJ : hr:
tl1e crops 1st ut 1t 1s not thcony I t I1mg
. ma. 11 cases. 'f'hc questio grc\1/
. . n of
though secondary 1s relevant and so 1s the state of ev1.d
ence as regards past possess ion -1~ title
Growing crops are not movable property. A person who removes such crops attache
db
village Court, which has only po\.ver to attach movables, is not guilty of theft.136 Where
ccr/ a
gro\\1ng crops were attached in execution of a decree by beat of drum without affixing
a co;n
of the warrant of attachment on the land and another copy on the outer door of the house
oft/
judgement-~ebtor, as provided b~ O.XXI, r. 44, Civi! Procedure Code, and the accused
remove:
the crnps with the consent of the Judgement-debtor, 1t was held that the accused were
not guilty
of theft as the attachment was irregular and the crops had not passed out of the possessi
· d 131 o f
th e JU gemen t-debtor. Where the auction -purchaser at a rent execution sale of a hold.no
. . .
too k delivery . of possess10n and subsequently the persons who were m mg
<
possession cut and
removed certam bamboo clumps standing on the land, it was held that when the auction
-purchaser
acquired the land he acquired the bamboos too and the accused were guilty of theft.1 8
3
If a person trespasses on land in the possession of another and sows paddy on it that does
not entitle him to property in the paddy that results from the sowing and if the person in
possession
reaps and removes such paddy he does not thereby commit theft. 139 Where a crop
on a land
was raised by the lessee of the accused after the court-sale, and delivery of the crop
was not
ordered by the Court, the removal of the crop could pot be said to be dishonest and
a conviction
of the accused for theft was unsustainable. 140
Where the accused removed the paddy in v~olation of the order of a Court attachin
g the
land with the crop on it, the removal of the paddy standing on land attached and taken
possession
of by the Court was held to constitute theft. 141 Where prohibitory orders were issued
under s.
144. Code of Criminal Procedure, I 898, in respect of a land in dispute restraining
both the
parties from going upon it and one party against the order entered upon the land and
harvested
the crops and the other party filed a complaint of theft, it was held that the charge
of theft ,vas
not maintainable. 142
Three persons ,vcre appointed custodians of the attached property. While the prop~r
ty
Nas in custody of the custodians three accused cut away the crop. It was held
that the custodians
K ·i h s · h ( J ) PWN 60 J :( 1941) 22 PLT 765: 43 Cri. LJ 294: (I 941) AIR (P) 613 ;_ Karamsa
33 · 31 as mg 941 ni ( 1966) Cri .
L.1 I 039: ( 1966) AJR (Orissa) l 86; Kaland1. Bchcra (I 9 6 5) 2 c n·. LJ ·383 · ( 1965) AIR (Onssa) 166 .
· ,
34. Um~ Charan _v. ~haran Das k~J96S~) Chri(•.1L9J4410) 84~-Cri LJ 83 · (1944)
3 5 . Hanhar Nara111 Singh v. Ban ey mg AIR (P) 274; Jaswantsinhji Bapubha (1952) 5
· ·
SLR 9 .
36. Nallama dan Chcttiar ( 1929) 31 LW 719: 58 MU 509: (I 930) MWN · 96 · ( 1930) AIR (M) 509.
352 : 31 Cn LJ I I ·
37 . Ram Sakal Singh (1930) 32 Cri . LJ 437 .
38 · Jagmoha n Singh (1932) 13 PLT
519: 24 Cri . LJ 355 : (1932) AIR (P) 344 ·
!;· Nga_I: myin (1906 ) 3 LBR 199: 4 Cri . LJ 465 .
14 \ · ~~nkatas ubbaray adu ( 1940) MWN 869: ( 1939) 52 LW 346. . 0 · following
· ,tnbo rctar v. Pri ya nat h ( 1952) Cri . LJ 994 · DHagirathi Srichand an v. Damoda 1987 6 31
cnKuc r v S h p r Cn. LJ · (_ n) (P t)
' ' h 1970Cn I 14 84 a ·
1 " 2 . \ ):, \l' •• •. · • . co rasaJSin ghAIRl
966SC3 59and distinguish ingMah en d ra p rasa dS mg ·
. l \ )a n Ku..:n (1 9 '5(,\ "' , ,-,._ ~ J
 ,~OI
1 itO ·
•. _: ~ . . to reap the crop when it wn s ready l .
.... 1orit' d l . ( ant lht1
;., • '.'1 11t l .• honest an t \CY were guilty of thcf\ H1 ~ rd ore J'J','
i 1\1,. ·1" d1 S the r 11 1t1
11•1' ,~•1i ,,, · _Standing teak trees arc iminovahl ,
. . , n.,,qf th1•'
11
/''i'1'-'· -
' .rr,1 , Ir, 11,,
.1
l( • · l,
·/ , . , t ion of 1cmovmg t \ctn d'1shoncs tly
. < c property 1i1i1 f
{I hC,ntt;ll ' .
th ft . Jut a ri
lC ,~ Commj • 1 ()()n ;1rt th,. I r,;i
,
• t ,, ith t . nortgngcc~ who is m possession of tr,, ttcd
. •1·c ,, , -~ -irr;
wh1.- . ,, right to cut an d appropriate .
i1
i
"cs ll'ndcr th
:1,•,ng • them c t c tcrn, q <i f 3
ht111l1 1" t because he 1,as to recoup the owner, of u sand appr .
I . I
ml)rt)!,aw • rl
opriatc" the t:rr•cq h
,, 11 ,,it thcl. 145 J, 1:r:~
11 q oss, under s 7(, ()f .h .. c rlr,~111(11
'l'\111 A. ct.
i ~1( ~ t C f rar,qfrr r f
rr11pl · ., It _ Salt spontaneously formed on the , J
£
rd) ~,1t ,·46 or in a creek under the supervision of Gosuvr ace of a swamp appropnatP.r1
ncn · L

G0,,cn11_·\ i, fonned on a swamp not guarded by Govcrnernmen t 147 · b. ,,J r,•1

me t 14e' is su ~cct 0f theft b11t nr.t
,,·\11C1 ~ · n.
th~t B 01 _ A boat may be the subject of theft 149 '
(C) 0 . . .
!) T/a/uable security. - The halves of currency bankn t
(f1 ,. .
on who steals them 1s · · d.
m 1ctable for larceny 150 s· .o es , sent in a Ietter, are goods
3nd a pc~·ect of theft_1s1 Bank draft forms are notjust.ordi tm1 1~ 1Y, any valuabl e security
m~;
beth~sumJeasures such as custody accountability etc Thni_saryb . orms; th ey s
ntY are ubject to stnct
secu rty and remove of it from proper and legal custod ' · emg a valu bl d · ·
y witho t th a e ocumen t it is a
prope ts to commission of theft. 152 u e consen t of the
person amoun . authori sed
lnl Human body. - A human body, whether living
!b' h ft 153 or dead is not m bl
fore
.
stealmg a corpse
.
1s not . ' ova e property and
re t · e . But
the . . . a different principle would aPP1y m • th ,
e case of
human bo~es, or portions of such, or mummies, preserved in museums or scientif
ic institutions.
MJdol. - Idol is _movable pr~perty and ~an be the subject-matter of theft. Its being a
juridical person for certam purposes 1s no bar to its also being a movable property_1s4
(i) Electricity. - In Avtar Singh's 155 case the Supreme Court has held that electric
itv is
not considered to be movable property and that s. 378 by itself would not include
a theft of
electricity. Abstraction of electricity is by virtue of s. 39 of the Electricity Act to be deemed
to
be an offence under the Indian Penal Code and the offence so created would entail the
punishment
is not under the Indian Penal Code for that offence even though t~e punishment is not under
the
Indian Penal Code itself. Theretore, though theft 9f electricity ~s not theft within the
meaning of
143. Mahendra Prasad Singh 1970 Cri. LJ 484 (Pat) following Osman
Mistry v. Ah1l Krishna Ghosh AIR 1949 Cal 632 .
This case docs not appear to lay down a sound proposition of law and should
have been d_ecided in line with, ~e
decision in Bhagirathi Srichandan 1987 Cri. LJ 631 (Ori) following Deo Kuer
v. Sheo Prasad Singh AIR 1966 SC-') :),
See also 1963 BUR 211 where a contrary vie"vv to 1970 Cri. LJ 484 (Pat) was
taken but it does not appear 10 ha\'e
been cited at the bar.
144 · Ka Doe U ·
(1929) 8 Ran 13.
145 · Tarachan<
l Sah (1940) PWN 778: (1940) 41 Cri. LJ 795 : (1940) AIR (P) ?Ol.
46
~ · Tamma Ghantaya (1881) 4 Mad 228; Fakira (1872) Unrep Cr. C. 66
7 ·
: · Mansang Havsant (1873) 10 BHC 74. ·
1
!·
14
Government Pleader ( 1882) 1 Weir 412 .
· Mehar Dowalia (1871) 16 WR (Cr) 53, 63 .
150
. Mead (l 831) 4 C & p 535 .
!SJ Kah' · .
l 52 · s iraJ Martand (1870) Cr. R of 1870 Unrcp Cr. C. 4 3 ·
153 · ~shok Datta Naik 1979 Cri. LJ (NOC) 95 (Goa).
1s 4· amad hin (1902) 25 All 129.
lss·. ~~cd O9~7) Cr. LJ 1053: ( 1967) AIR (Raj) l 90 . nkar Sinha ( 1968) Cri. LJ 537 : ( \ 968) /\lR 0)~\) \3 \ ·,
BS) l Cn. LJ 605: (1965) AIR (SC) 666 . See also Ra~a Sh\ubh awan 1984
Cri. U \ 16 \ (A\\).
Yderabad Vanaspathi Ltd . 1978 Cri. LJ 1824 (AP), Ram
 2958 · LAW OFCRJMES&CRJMTNOLOOY I""',., 1·7
- - - -- -- - -- - - -- - - - - - - - - - - -- - -'.:.'-'.:.. 1'-1<1 1Vi<i

·s. 378 itself. nevert heless a theft by virtue of fiction created bys. 39, Electricity Act jq liable tr,
be punished in the like manner as a theft under s. 379. Where the respondent had unauthorrsedly
connected VIR ,,i re \\·ith the '!1ains of the electricity board and thus consumed electricity
without obtaining a proper meter, the accused was held guilty under s. 39 of the Electricity Act
read withs . 379 of the Penal Code.156 Similarly, where the consumer had wilfully or fraudulently
altered the inde:x oftl,c meter and tampered with the wiring for preventing it from duly regjstering
the energy consumed157 or where he had introduced a piece of wood in the meter of the tube~
,veil thereby impeding free movement of the meter resulting in dishonest abstraction of electrical
158
energy he must be held to have committed the offence of theft of energy.
(I) Gas. - English cases. - A having contracted with a gas company to consume gas
and pay according to meter, in order to avoid paying for the full quantity of gas consumed,
i~troduced into the entrance pipe another pipe for the purpose of conveying the gas to the exit
pipe of the met~r, and to the burners, for consumption without passing through the meter itself
Th~ ~ntrance pzpe was the property of A, but he had not by his contract any interest in the gas
until 1t passed through the meter. It was held that he was guilty of larceny.159 A stole gas for the
~se of a manufactory by means of pipe which drew off the gas from the main without allowing
it to pass through the meter. The gas from this pipe was burnt every day, and turned off at night.
The pipe ,,as never closed as its junction with the main, and consequently always remained full
of gas. ft was held that as the pipe always_remained full, there was, in fact a continuous taking
of the gas: and not a series of separate taking, but that even if the pipe had not been thus kept
160
full the taking would have been continuous, as it was substantially all one transaction.
(k) Water. - Water supplied by a water company to a consumer, and standing in his
pipes, may be the subject of Jarceny. 161 The Calcutta High Court has held that water running
freely from a river through _a channel made and maintained by a person is not a subject of
theft. 162 The Madras High Court 163 has ruled that running water in irrigation channels is a
subject of th~ft. Jt has distinguished the Calcutta case on the ground that there water was not
reduced in~ possession. SimiJar1y, the Allahabad High Court has held that water when conveyed
164
n pipes and so reduced into possession can be the subject of theft.
(!) Animals. - In order to render an animal ferae naturae the property of any person
1ere must be a complete capture, the result of which is to reduce the animal completely _into
ossession. Mere pursuit short of capture will not do, and so long as it is possible for the an~al
, escape it cannot be said that there is such a reduction into possession as makes the ammal
·operty of the pursuer. 165
The accused was involved in the shooting of a deer inside the reserved forest. It was held
lt animals found in reserve forests could not be said to be in the possession of the Government,
r until they were tamed and domesticated they c~ir!d not be said to be brought into the
:i . State- v. Dharam Pal 1980 Cri. LJ 1394 (Del).
7. Tamil~agu Electricity Board v. Kanniappa Mudaliar 1985 Cri. LJ 561 (Mad).
~. Jh alkan Singh 1981 Cri . LJ 1230 (MP).
J . White ( 1853) 6 Cox 213.
o. f ill'1 ( 1869) LR l CCR 172.
1
· Fcrcns v. O'Dricn ( 1883) 11 QBD 21 .
·.~ ~ h l:1kh Arif( \908) 35 Ca l. 4 37. .
l l1 11d ; a \llloa 0 p 1·11 .
f, 4 f, '.
M ,\:i1 u cn ." at ( \ 9 12) MWN 119: 13 Cri. LJ 131.
<,, Rw i, ... .... ,'i1 Xad( l 9 23 )45All680 ·
 (' ASH..~ 7.'J"i'J
o 1R0) --- - ----
~ I .
• th .
the r it be t.hc Gov ern men t or An v oth er ind, v,<1 .. a l ;:i nr\ rr n<it
v of n per sonf, whe , ' ' , ·; ' '";

I G ovcn1m cnt tI,c. n,C"C',cnc c o f the ft w a ~ not c'·'" m m 1t i u. 1 1e.r, ( .-.11

, •
_ •
cu c.W d.
J

. 1\r,t urn, >r}

· 1 )osscss ion o t ,c · l . . • .
ow ne r 11nl c 1 ,., th '• r.r,n1 ru ·;
j11tlCI
ra ze
. I t
1n t ,c pas u rcf or Jun g c arc st, 11 in the po~scs~ ion nf the ,
g k" I l • ~ell ~ it •rnh qcq111..:n tl y h1"1 r1'r1hr,n,:-.t
ou t to catt e ,s the ft . Wh ere the tak er
is sho"11. and the ta_ mg o sue l
in fe rred from tha t fac t ,",
.,ntcn t·on while tak mg awa y the cattle can be
rr,p~rt ·;
wed to roa m at lar ge rem ain q the p
t
bul l ded icat ed to an idol a nd allo
(m) null. . A ·<¥, but " '"it a
ome the subject of theft, 1'l'I nr mi qch icf.
1

tms tccs ot the tem ple, and can bec

of the
bull set at large in accordance wit
h religious usagc _HO
t , f theft · 1 •
not kept in confinement 1s the subJec 1
(n) Peacock. - A peacock tamed but
h in an ord ina ry ope n irri gat ion tan k,172 or in a tank not enc\c)se d on all
(o) Fish. - Fis cree k
on the ove rflo w of a nei ghb our ing channel ,173 or in a publ ic rive r or
•des but depend ent r, :75 are Je rae
ing in w~ ich has bee n ~e
- t ~ut, 174_ or in a tidal and navigable rive
:~e righ t of fish
Fis h m the u free stat e are regarded asf era e nat u rae but
naturae and not the sub jec t of the ft.
o has possession of any expanse of w
ater
be in the pos ses sio n of a per son wh
they are said to g in the
live but from wh ere the y can not escape~ they are also regarded as bein
,vhere they spot knmvn as
ion of a .per so~ ~h o ow ns an ~:c l~s i~e right to catch them in a particular
possess
hm tha t spo t. 1
Fis h m an enc lose d tan k are restrained of the1r natu ral
a fishery, but only w1t ing to the pleasure of the owner , and are
,
to be tak en at any tim e acc ord
liberty and liable ld escape . lf
jec t-m atte r ofth eft. 17 7
The tes t of possession is, whether the fish cou
therefore, sub 178 otherwise not .179 Fish in the
are una ble to esc ape , the y bec ome the subject of theft,
they catching fish thercin
ern men t tan k is pro per ty in the possession of the government and 180 Wh ere
gov l intention will am oun t to theft.
and wit h the riec ess ary crim ina
without a licence by one
a low -lyi ng are a inc lud ing the plo t of the com pla ina nt we re covered
various plots is ther tho ugl
the fish cou ld not be res trai ned from esc api ng fro m one plo t to ano
sheet of water, to be exclusiv
dem arc ate d by ridg es and suc h pos ses sio n of fish cou ld not be sai d
otherwise 181
of the com pla ina nt and be a sub jec t-m atte r of the ft.
possession
166. Perumal (195 5) Mad 795 .
4) Cri. L 280 .
167. Adhargir (195 3) NLJ 600 : (195 rt con fuse s the two term s ferae best ia and
res mu\lius . The Magisti
. In this case the Cou
168. Nalla (188 7) 11 Mad 145 conviction shou ld re
null ius. The Hig h Cou rt held it was not and decl ined to interfere. The
regarded the bull a res
have been for thef t.
169 . Abd ul Qay um (194 6) ALJ 27. (188 5) 8 All 51~ Nih al (188 7) 9 All
3-t
esh Chu nde r San nya l v. Hiru Mon dal (189 0) 17 Cal 852 ; Ban dhu
170 . Ram
41.
17 I. Nanhe Kha n ( 189 7) 17 AW N 384 ; Haj i Cha nga l v. Bas arm al (19 11
)5
ba Red di v. Mun sho or Ali Sah eb (190 0) 24 Mad 81: (187 8) 1 Weir that both the supp l~
172. Sub to such an e:de nt
13 Cri. LJ 22 . If the wat er in an ope n irrig atio n tank has fallen ,..-ith out the co
I 22: catc hing of such fish
dom of fish is circ ums crib ed and the
distribution cha nne ls are dry, the free
bian Servai (191 1) 36 Mad 472 .
of Gov ernm ent wou ld be theft: Sub
Kat ani (18 88) 15 Cal. 402 . o (~8 73) 19 WR lC
173 . Maya Ram Sur ma v. Nic hala 388 ; Hur imo ti Mod doc k v. Den o Nat h Mal
r Dom e (18 88) 15 Cal
174 . Bhagiram Dom e v. Aba (193 6) PW N 153 : 37 Cn . U 452
.
u Poth adu (18 82) 5 Mad 390 ; Elah i Bux (19 36) 17 PLT 189:
Rcv
Kar (19 49) Cut 740 .
175 . Gov indh a Mah ji v. Aro bind a Cri. LJ 496 .
Roy (19 64) 1 SCJ 419 : (19 65) 1
l76. Cha ndi Kum ar v. Aba nidh ar atm a ( 192 8) 29 Cri. U 50 l.
177 · Sha ik Ada m (l 886 ) 10 Bor n 193 ; Sree niba sh Mah Ileh ara ( \ 921 ) S\ 1
ims ctti Tam may ya (19 14) MW N \68 : 15 Cri. LJ 77; Nok olo
178 . Man chu ·Pai diga du v. Kad 1
(19 42) 2 MU S56: ( \ 942 ) MW N
bian Scrv ai (19 11) 36 Mad 472 ; Kris hna Rcd di v. Mun iapp a Red ui
Sub
(M) 34.
LW 696 : 44 Cri. LJ 173 : (19 43) AIR 32 Cri . LJ 572; Tha kur Jokhan Sip
gh (.1939) \4
17 9. Kaloo Kha n v. Ady ana th Hal dar (19 30) 35 CW N 455 :
18 0 . State v. Poo ran Sing h 197 7 Cri . LJ 105 5 (Ra j) .
· 1· Rou t v. Bra hma nan da Das 197 0 Cri. LJ 6~8 (Or i).
l 81 · B airag