Sec.

378 to 3801 3005

ROBBERS
O u t a m pens and anything clse of value. The hush-worker can bc idcntificd bccause hc dOCs

not confinc his thefts to cash alonc, but it is difficult to apprehend him.

(x) Auto thiefs

ficld. True, professional
opcrate in this
At the prescnt time not too many professionals crimcs. This is also
truc
re-salc. They take them for use in other
Crminals steal cars, but not for then drops
uses
it
it,
He stcals a car,
in need of transportation.
ne joy-TIdcr or the person
all within a short period of time.
stolen cars. His technique
The professional auto thicfmust have a
means of disposing ofthe of a
the forging or securing in some m a n n e r
and serial numbers, and
involves changing motor term "red tape" in the
what their officials like to
certificate. States not requiring into the
registration of stolen cars. An investigation
are a fertile area for disposal
transfer of ownership
or of an organized group,
must depend to a great extent upon recovery
operation of such persons,
of the property and a trace-back of the ownership.

39. Robbers
The unarmed
Robbers use force or possession of their victim's property.
violence to take
their techniques differ. The robber
robber must use force; the amed robber may. Naturally
who feigns possession of a dangerous weapon utilizers
the same techniques as an armed
unarmed and armed. The armed robbery
robber. Robbery is divided into two main classifications:
the
the type of weapon used. In both classifications, general
classification is subdivided by
facts.
description, scene of operation, and use of vehicle, are additional identifying

40. Suggestions
IPC, were the value of property stolen does not exceed
two
1. The effences of 379 & 381
section 320 CR.P.C. So
hundred and fifty ruppes are compoundable as per provisions of
these effences are minar. Such effences should be tried by way
of summary trial this
In England there is a
would decreased the number of cases pending before the court.
such wider
law viz. The Criminal Justice Act of 1855 provided for the summary trial ofa
all thefts involving property valued at less
range of hitherto indicate larcenies, including
than five shillings if the accused consented to the surnmary trial, and all other simple
thefts if the accused pleaded guilty.
2. Legal aid to accused at State expense. As per section 304 CR.P.C. lcgal aid to
effencc
accused is to be provided only where a trial is before the court of session. The
of theft
of theft is triable by a magistrate so legal aid cannot be provided to an accused
means to cngage an
case. In majority of theft cases the accused seldom have sufficient
advocate. To safë guard the interest of the accused and in the interest of justice law
should be made to provide legal aid to all those who stand criminal prosecution.
effence of theft and
In the state of Florida (state of USA) one Gideon was tried for an
Mr. Clarence Earl
he was convicted as he was not being represented by a lawyer.
the act
Gridcon field a writ of Certiorari in the fedal court of supreme court challanging
of the florida, which was similar to our law (340 CR.P.C.) not providing the legal
aid
offences. The plea was that he has fundamental
Cxcept and accused of a capital sentence
right of due process. The court held unanimously "Any person haled into court, who is
too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided
 3006 LAWOFCRIMES & CRIMINOLOGY Scc. 378 to 380

for him. This secms to us an obvions truth" Gideon v. Wainwright 372 U.S. 335
(1963)
The nuling of the Supremc Court on March 18, 1963, after Gidcon had scrvcd almost
two ycars in prison, entitled Gidcon to a new trial. He was immediately retried in the
same courtroom and by thesamejudge as in the initial trial, but this time he was represcnted
by counsel and was acquitted. Gideon was set free, as were thousands of other prisoners
in Florida and elsewhere because they had been tried unrepresented by an attorney
Note: The law of the state of Florida (mention above) was decleared on concussion.
41. American Law
Whoever shall feloniously take and carry away anything of value of the amout or value
of $50 or upward, including things savoring of the realty, shall suffer imprisonment for not less
than one nor more than ten years. "Section 2201 of Title 22
of the District of Columbia Code.
Interpreting this statute, this court has held that "one who obtains money from another
upon the representation that he will perform certain service therewith for the latter,
the time to convert the money, and actually
intending at
converting it, to his own use, is guilty of larceny".28
People vs. Edwards, 72 Cal. App. 102, 236 P. 944, provides an even closer precedent.
There the defendant took money from the complaint, representing to her that it would be used
to bribe oftficers investigating criminal activities by her husband. The complainant did not knoOw
exactly how the defendant was going to use the money but understood that it was going to be
used in some manner to corrupt the police. The court, in sustaining a conviction for larceny, held
that under these circumstances "title would remain in [the complaint] until the
accomplishment
c purpose for which she gave [the defendant) the money, i.e., until its final delivery by
[him] to the officers whom she was led to believe were to be bribed" 236 P. at 952.
Common law of crime. England and Wales has no criminal code. From very early
times Parliament has created criminal offences. The law relating to theft and related offences
is to be found in the Theft Acts 1968 and 1978.
42. Appropriation
Theft Act 1968, s 1:
(1) A person is guilty of theft if he dishonestly appropriates property belong1ng to another
vith the intention of pernmanently depriving the other of it, and 'thief' and 'steal' shall be
construed accordingly.
(2) It is immaterial whether the appropriation is made with a view to gain, or is made for
he thief's own benefit..

3. Property
Cheft Act 1968, s 4:
0Property' includes money and all other property, real or personal, including things in
action and other intangible property.
A person cannot steal land, or things forming part of land and severed from it by him
or by his
direction, except in the following cases, that is to say:
a when he is a trustee or personal representative, or is authorised by power of
A
udator of a attorneys
company, or otherwise, to sell or dispose of land belonging to another, anu
e
appropriates the land or anything forming
confidence reposed in him; or part of it by dealing with it in brcach of thc

(b) when he is not in possession of the land and

appropriatcs anything
land by severing it or
causing it to be scvercd, or aftcr it has bccn scvcrcd, forming
or,
part of the
(c) when being in possession of the land under a tenancy, hc
part of any fixturc or structure let to be used with the land. appropriatcs the whole or

For purposes of this subscction land' docs not includc

incorporcal hercditamcnts;
44. Larceny
The unlawful taking and carrying away of things
rightful owner of the
personal, with intent to deprivethe
same. Larceny is a
felony, and is either simple
circumstances of aggravation.
or
accompanied with

Simple larceny at Common Law, or plain theft. To constitute the offence

there must be an
unlawful taking, which implies that the goods must pass from the
(including one who has a qualified property only in the possession of a true owner
consent; where there is, then, no change of
goods, as a bailee), and without his
possession, or a change of it by consent, or a
change from the possession of a person without title to that of the true owner, there cannot be
a larceny. As to the difference
between property parted with by the owner of his own free
however fraudulently influenced, in other will,
words, between property "entrusted' and 'possession
by a trick'.
There must not be only a taking, but a
carrying away (cepit et asportavit). A bare
removal from the place in which he found the
goods, though the thief does not quite make off
with them, is a sufficient asportation or
carrying away. It must be of personal goods, and not of
the restly or things adhering thereto, or savouring thereof. The
taking and carrying away must
be with intent to deprive the owner of the thing taken or, as it is
expressed, animo furandi.
Larceny may be committed of a thing the owner of which is unkown, provided it appear that
there is some person other than the taker in whom the ownership resides.
See Embezzlement and Larceny Act, 1916, s. 17-19.
A man cannot steal his own property and can only steal property belonging to another.
While s.5 of the Theft Act states when property is to be treated as belonging to another it is
immediately apparent that in order to determine whether P has 'a proprictary right or interest
or whether property is 'subject to a trust' or whether a person is 'under an obligation to make
restoration' reference must be made to civil cases.
Sachs LJ in Baxter ([1971]2 All ER 359, 363) referredto as 'the finer distinctions in civil
law' but whether property 'belongs to another' for the purposes oftheft, as Bingham LJ said in
Dobson vs. General Accident Fire and Life Assurance Corpn plc ([1989] 3 All ER 927,
937) 'is a question to which the criminal law offers no answer and can only be answered by
reference to civil law principles.' And in Shadrokh-Cigari ([1988] Crim LR 465, CA) whether
property belonged to P was determined by refercnce to principles of cquity.
Cases involving the abstraction of moneys from a l1mited company by a person who was
in a position to give the consent ofthe company to the abstraction. A person who thus procures
nOOnt
n+di ncatl7 andUith the intention ofnermonentl, da I 1 1 n o
 e, 1,
House of Lords
Lowry, Scc. 378 to
Browne-Wilkinson
Where there is no and Slynn of (Lords Keith
Kcith of
380
Hadley). Kink
nkel, Jaunccy
Kinkel, Jauncey of
The Act of Bailment of
19164
nout the consent of preserves the common law
the owner", or rulc5 that a
ractical importanceoften of his duly authorized thing is not stolen
unless taken
tion of a suspected ariscs in agcnt. Upon this
thief's act from thief. If, for mereconsequencc of the
plans laid point a qucsticon
by the policc for
itted, after an being a larceny? The purposcs of detection, the the
rule is the same owner of
unsuccessful
arly in larceny, if the goods
attempt to deceive, does not as in burglary, whereacquiesces an
the owner, either himself or amount to a entry
perpetration
2no larceny,
of the
theft, his action would through constructive
another person, should brcaking
no further thanalthough his sole object was to constitute a sufficient consent suggest to the
to facilitate secure the to render the
nts from assisting the the commission of the theft detection the offender. Yet if he
of
<nowing of the intention thief),6 such conduct (e.g. by not preventing one of
would his
front door unfastened. of burglars to break into his more amount to a consent than if a
no

house, were to leave one of the

acts which bolts
Negative an
Apparent Consent
ceit
Ve have already discussed
fully the anomalous crime of
by the judges in R. v. Pear.412
Quite apart from that 'larceny by a trick' which was
consent of the owner has been treated as if fictitious doctrine, under which the
it were
complete misrepresentation of fundamental facts non-existent, a wrongdoer may make
tim so profound that when the details as to create a mistake on the
are examined it part of
ting to an imagined situation quite different from appears that in truth he was
that which actually existed. The
careful to distinguish such a case as this, student
where
amental that there is in truth no consent at all, fromthe mistake induced is as to a matter
consent, but it is a consent which is the more common position in which
arty 413 legally regarded as vitiated by the deceit of the
undy v. Lindsay It is a situation of this kind which is covered in
the Larceny Act,
by the provision that in the definition of stealing 'the
expression' takes" includes
g the possession by any trick'. For if the phrase, 'obtains the possession by any trick be
ted for the wood 'takes in that definition, it still remains
ncccssary for the prosccution to
aat the owner did not consent.
ch was the position in Cundy v. Lindsay415 where it appearedthat a man, A. Blenkarm
1 a room in a housce, part of which looked into Wood Street in which (at no. 123) wer
 eted thiet. It, tor mere the
plans laid
ief s act from being a purposes detection. the ownerbyofthe police for the
of
ted after an unsuccesstullarceny? The rule is the same
as in
goods acquesces
iy in larceny. if the owner,attempt to deceive, does not amount toburglary. where an entr
either himself or
through another person,constructive
a
e
perpetration of the theft, his action should
breaking
o
larceny, although his sole would constitute a suggest to the
sufficient consent to render the
further than to facilitate object was to secure the detection of the
the commission of offender. Yet if he
from assisting he thiet).6 such the theft (e.g.
by not preventing one of his
owing of the conduct would no
intention of burglars to more
break into his house,
amount to a consent than
ront door unfastenad were to leave
if a
one of the bolts
ts which Negative an
Apparent Consent
ir
have alreadv discussed
fully the anomalous crime of larceny by a trick' which
v the judges in R v. Pear.412 Quite apart from that fictitious was

nsent of the owner has been treated as if it vere non-existent,doctrine. under which the
wrongdoer may make
a
mplete misrepresentation of fundamental facts as to create a mistake on the part of
so profound that when the details
are examined it
appears that in truth he was
to imagined situation quite different from that which actually existed. The student
an
areful to distinguish such a case as this, where the mistake induced is as to a matter
ental that there is in truth no consent at all, from the more common position in which
nsent, but it is a consent which is legally regarded as vitiated by the deceit of the
413

v Lindsay: It is a situation of this kind which is covered in the Larceny Act.

the provision that in the definition of stealing 'the expression' "takes" includes
e possession by any trick'. For ifthe phrase, "obtains the possession by any trick' be
for the wood 'takes in that definition, it still remains nccessary for the prosecution to
he owner did not consent.

the position in Cundy v. Lindsay

*13
where it appeared that a man, A. Blenkam.
as
in a house. part of which looked into Wood
Strect in which (at no. 123) were
0om the exact street-
of W Blenkiron & Co., a fim whose good repute (although not
37 Wood Street', Blenkarn
house) was well known to Lindsay. Giving the address
letters
me correspondence with, and ordered goods on credit from Lindsay, by
Sec.378 to 380] FACTS WHICH NEGATIVE ANAPPARENT CONSENT 3009

such a way as to rescmble the name 'Blenkiron & Co.'. Lindsay s

replics, and thc
Signed in
takcn in therc by
were all addrcssed to W. Blenkiron and Co.,
37 Wood Strcct, and wcrc
goods,
to an innoccnt purchascr
Blenkarn, who, bcing fraudulent throughout, sold the goods question It was decidcd in cffect
in
of his busincss.
Cundy, who then disposcd of them in the ordinary way
showed that Lindsay could not be hcld to have
by the Housc of Lords that the cvidencc
to pass owncrship of the goods to him 41 On
contracted with Blenkam nor to have intended
the goods to Cundy; and he must himsclf
this view of the facts Blenkarn could pass no title in
have becn guilty of larceny of them from Lindsay,417
that the deceit practised produces a
Ringing the changes. Again, it may happen
victim that although from his actions
complicated situation and such mental confusion the
in

there would seem to be a consent by him to transfèr the ownership of

the property, yet on
examination of all the circumstances it is plain that in fact, he did not give any such consent. Of
this kind is the fraud known as 'ringing the changes, which, in broad outline, consists in the
offender s producing in a shop a coin or note of large denomination in proposed payment for
some small purchase so as to cause the seller to place on the counter the amount of change
which would be due. Thereupon, by a serious of manoeuvres such as asking for some of the
the money is moved about, a
money on the counter, with pretended changes of mind, so that
confused situation is created which enables the offender to pick up much more of the money
than is his due.*15
really dishonest A
manoeuvre for which the name 'trick' would seem
particularly appropriate person extracts something41s from an automatic machine by
is where a
taken invito
inserting a worthless metal disk instead of the proper coin. The property plainly a skeleton
is
domino just as completely as if the machine had been broken open, or unlocked by
since the owner has indicated that he only consents to pass the ownership of the contents
key,
of his machine if the correct money is first put into it.
(6) Intimidation
be that the owner has
To be effective the owner's consent must be full and free. It may
threats made by a wrongdoer to harm
expressed his consent but only under the compulsion of
refused to regard a
him if he does not allow the goods to be taken. The courts have always
consent so enforced as a real consent, and therefore they
have held that notwithstanding it the
the keepers of an auction-room forced a
taking of the goods is larceny, as for example where
a bid, by threatening that she should
woman to pay for some lots for which she had not made

not leave the place until she had so paid.420

intended to deal. Their minds
416. Of him they knew nothing, and of him they nev thought. With him they never
consensus of mind
and as between him and them there was no
never, even for an instant of time, rested upon him,
Lord Cairns, L.C., at p. 465.
which could lead to any agreement or contract whatever.' Per
in which it was held that the ownership did pass to a
417. Contrast the case of Phillips v. Brooks (1919) 2 K.B. 243
of a reputable man and purported to pay for them by cheque
a
purchaser, who present in person, assumed the name betwecn this and Cundy
of the distinction case
which he signed in the name of that man. On the difficult question
contract' (1945), 23 Can. Bar Review, 271.
v. Lindsay see Glanville Willams, 'Mistake as to party in the law of
Phillipsv. Brookes was in Dennant v. Skinner and Collom (1948) 2 K.B. 164.
approved
v. Williams (1875) 7 Cox 355 in which
conscnt was given and the
418. R. v. McKale (1868) 1 C.c.R. 125; contrast R.
R. Hollis (1883) 12 Q.B.D. 25 and the criticism thereof in Russ.
offence was obtaining by false pretences, and sec v.
1078. R. v. Thomas (1841)9 C. and P. 74l was not an example of ringing the changes but a plain case of conversion
not a felonly.
by a bailce, which at that date was
419. E.g. matches, stamps, or gas from a gas-mcter; R. v. Hands (1887) 16 Cox 188.
420. Larceny Act, 1916, s. 1 (2) (i) (6). R. v. McGrath (1869) 1 C.C.R. 205 (T.A.C.), R. v. Lovell (1881) 8 Q.B.D. 185.
And see R. v. Hilliard (1914) 9 Cr. App. R. 171.
 LAWOFCRIMES &CRIMINOLOXGY (Sec. 378 to 330
3010

(c) Mistake under (Common Law

The Larceny Act, 1916, further provides21
that in the definition ofstcaling thc cxpression
of the owncr with
shall include 'obtaining the possession undcr a mistake on the part
takes has becn so obtaincd'. Here again thc
knowledge on the part of the taker that possession
definition leaves unaffected the requiremcnt
substitution these words for the word 'takes' in the
of
that the owner shall not have consented.
committee statinga
of quarter sessions, in
Thus in Moynes v. Coopper,422 the appeal
that in the Larceny Act, 1916, the
special case to the divisional court, expressed their opinion23 definition of
words 'without the consent of the dominated and governed the wholc
owner
by sub-section (2) to the
larceny in section 1(1) ofthe Act; and that the special meaning given an
dispense with the necessity of a larceny being
did not obtaining without the
Word 'takes and in
consent of the owner. No objection to this proposition was
enunciated by the court,
said:""
delivering his judgement in favour of the prisoner Lord Goddard, C.J.,
done so.. Section 1 (2)
This Act was not intended to alter the law and... it has not
the possession...(c) under a mistake on
)..provides "the expression "takes includes obtaining taker that possession has been So
on the part of the
the part of the owner with knowledge animus
the common law that the taker must have
obtained. This in our opinion is aftirming of
In Middleton's Case425 the wrong amount
furandi at the time when he takes the property. the
clerk before the prisoner who picked it up knowing of
the post-ofifice
money was paid by 426
animo furandi.
clerk's mistake and so took it
by the words of the statute would be where
An example the kind of situation covered
of certain
over a specitic package
to the prisoner, has put it in a
a shopkeeper, intending
to pass
one of his assistants
unknown to him but to the knowledge of the prisoner,
place in the shop, and, another package of greater value.
moved it elsewhere and set down in its place
has innocently his
(whose attention is directed elsewhere) where
The prisoner then asks the shopkeeper to the
if he take it; whereupon the shopkeeper tells the prisoner to go
package is, and may
original spot and take the package which he will find there.
the courts have included, under the head mistake,
of
R v. Middleton, In practice, however,
although certainly enough the owner has been in some measure mistaken,
transactions in which,
in the property to the prisoner. This is
he has yet undoubtedly consented to transfer ownership
Act were intended to confirm the decision given by
due to the assumption thatthe words of the
the Court for Crown Càses Reserved in the
much discusscd appeal of Middleton in 1873.
bank depositor,
A post-office clerk, when about to pay out money to Middleton, savings
a
the sum against
consulted by mistake the wrong letter of advice, and without properly checking
on the counter for hima
the figures in the man's deposit book and withdrawal warrant, placed
£S note and a number of coins to the total amount of £8. 16s. 10d., instead
of the amount really
due, which was only ten shillings. Realizing that there was a mistake the prisoner nevertheless
421. Sect. 1(2) (i) (c).
422. (1956) 1 Q.B. 439, post, 249 a.
423. At p. 441.
424. At pp. 444, 445.
425.(1873) 2 C.c.R. 38, infra.
2
common law doctrine
of R. v. Peat. ante Oud seem possible to read subs. (2) (i) (c) as intended to confirm the
427.R. v.
Middleton (1873) 2 C.c.R. 38 (T.A.C.).
 Sec. 378 to 380] CONSENTOF THE OWNER IMPLIED 3011

took the moncy. His conviction was uphcld by a numerical majority of cleven" judgcs against
wcre (a) that the clerk
four. The legal arguments adoptod by scvcn judgcs against the prisoncr
mistake was such that he did not
had authority to transfer ownership in the moncy but that his
intend to do so, (b) that cven if he did so intcnd yet the prisoner's intent to stcal in some way
while not agrecing with thesc
negatived that intention.42 There more of the cleven judges
the conviction on the ground that the clerk did not
arguments yct were in favour of upholding
therefore did not transfer it. One judgc,
have authority to transfer ownership in the money and
of the money upon the counter for
differing from all the others, held that in fact the placing
But this was really irrelevant, for
Middleton to pick up was a not a delivery ofthecoins to him.
the owner but upon the
the guilt of larceny does not depend upon there being no delivery by
since the the clerk watched
prisoner's taking the thing without the owner's consent; and it was
Middleton pick up and take away the cash, and was clearly willing that he should do so,
obvious that the taking was not invito domino. What was overlooked by most of the judges who
affimed the conviction was that the clerk made no mistake whatever as to the transfer of the

money: he was well aware of what he was doing. His mistake related to his reason for
quite
doingit. This can hardly be the kind of mistake contemplated by the Act, for if it were so,
then difficulties would arise in distinguishing the felony of larceny under sect. 1 from the
misdemeanour of obtaining by false pretences under sect. 32,431 it would also make it a felony
for a skilled collector of antiques to purchase an object which an ignorant owner had consented
to sell at a price below its real value.
the conviction
Therefore at the least it is difficult to escape from the conclusion that, whether
covered by the words of
of Middleton was or was not wrong, the facts of that case are not
sect. I of the Larceny Act, 1916.
47. Consent of the owner implied when lost goods are found
and picks up an article
The clearly law as to the rights and liabilities of a man who finds
is declared to be an
which its owner has lost is not clearly recorded.432 Trespass to goods
another's thing; and
offence against the owner's possession, by wrongfully seizing or damaging
had been lost by the owner and was therefore
yet it was held to be trespass even when the thing 43

no longer in his possession. The handling ofthe thing

will not be wrongfulifthe owner consents,
finder takes into his control lost goods
and so it came to be established45 that where an honest
then the owner's consent to
which are in danger, in order to preserve them for their owner,
will be no trespass. Here it is
such unsolicited assistance must be presumed, and the taking
movement of the thing
important to note, as previously mentioned,455 that merely inquisitive
a
constitute such a 'taking' as would suffice
when found, in order to ascertain what it is, does not
delivered by others, so that in fact only four judgements were
428. Some of these simply concurred in the judgements and
Middleton, and one of these (by Pigott, B.)
rested upon a special and strange view of the facts
delivered against
not upon a legal point.
v. Pear, ante, 234.
429. This was a misunderstanding of the doctrine laid down in R. conviction should be
was plainly indicated by Bramwell, B.,
who in vigorous
a judgement held that Middleton's
430. This 356-74.
this case see Mod. Appr. Crim. Law,
quashed. For a detailed examination of 251 n. 2.
431. See Darling, J.'s remarks in R. v. Fisher (1910) 5 Cr. App. R. 102, cited ante, p.
432. Pollock and Wright, Possession in
the Common Law, 173 et seq.On the topic of larceny by finding' see Russ. 1141
et. seq.
motive of the trespasser will
433. But if his consent has not been
obtained (or necessary implied) the good intentions or
Hen. VII, 27, pl. 5.
not excuse him; (1505) Y.B. 21
Y.B. 7 Edw. IV, 3, pl. 9, per Nedham (J.); Isaack v. Clark (1615) 2 Bulstr. at p. 312, per Coke, C.J.
434. (1467)
435. Ante, 224.
 3012 LAWOFCRIMES & CRIMINOLOGY Scc. 378 to 380

to invest the finder with legal possession of the thing.4 That is the position in thc civil law, hut
ncidcntal and not an csscntial mattcr in the
strictly the question oftrespass or no trespass is
an
and carrying away invito
criminal law of larceny. for the crime is constitutced by thc taking
therc arc two rcasons
domino, inspired and accompanicd by thc animus furandi. Accordingly
docs not commit larccny, (1)
why the honest finder, who thinks the owvner can bc discovercd,
because the owncr consents to his taking the thing, and (2) bccausc hc has no intcnt pcrmanently

to deprive the owner of it. If, however, the finder believes

that the owncr cannot bc discoverced
by taking reasonable steps and therefore resolves to kccp thing
the pcrmancntly for himself hc
does not necessarily have the owner's consent,438 but he is savcd from the guilt of larceny by
is that
his belicf in his claim of right,439 that is to say, his defence to an accusation of fclony
own

he has not the require mens rea.a40 It is well to note at this point
that if the finder does take
bailee of it.441
possession of the thing he does not thercby constitute himselfa
If the goods have not in fact been lost, but an honest person who lights upon them (1.e.
there cannot
finds them') thinks they have been lost and acts accordingly, then again although
no larceny, since the finder has
be even an implicd consent by the owner, yet there will still be
therefore that section 1(2)(i)(d) of the Act is unhappily worded,
no animus furandi. It appears
as meaning 'taking after having found', and (b)
it
in that (a) it uses the word *finding** instead
make a dishonest taker of the discovered thing guilty
unnecessarily indicates what will when he
circumstances in which a man is free from guilt
of indicating the less obvious in which the criminal
which he has found.445 Most of the cases
appropriates for himself a thing where the finder has in
of finder has been discussed are concerned with the position
liability a
loser but later on
instance taken the thing with the honest intention of seeking the
the first is well settled that in
to keep the thing for himself. It
succumbs to the temptation dishonestly the animus
the common law rule requires that
such case he does not commit larceny444 since
must exist at the very time
when the thing is first taken.*
furandi
moment is when the thing
at p. 216. That the material
remarks in R. v. Ashwell (1885) 16 Q.B.D.
436. See Stephen, J.'s C.J.'s observation in R. v. Glyde (1868)
37
'found' can be seen from Cockburn,
is first 'taken' rather than when it is 176.
v. Bonython (1944) S.A.S.R.
L.J.M.C. 107 at p. 111. And see Feist
be no larceny without trespass but there can be trespass without larceny (even
437. As previously emphasized, there can uses force to detach a bicycle
which is
where the wrongdoer unsuccessfully
when committed animo furandi, e.g. Furthermore,
to its owner's clothing).
watch from the chain which attaches it
chained to the railing of a house, or a
creatures ferac naturae (post, 264) as
are
impotentiam) in such
an owner ofland hasa 'qualified property' (propter who without his permission
maintain a civil action of trespass against anyone
Loo young to fly or run away, and may
takes them off the land, although such taking is not larceny.
decided to abandon all his rights since a search would not be
438. In certain circumstances the owner may in fact have
worth while.
41 Cr. App. R. 5.
439. R. v. Reed (1842) C. and M. 306; Williams v. Phillips (1957) control
but by the Dogs Act, 1906, s. 4, anyone who takes
440. It is in any case not a felony to steal a dog (post 271),
with details, of the fact that he has it.
of a stray dog must either return it to its owner on notify the police,
the
441. R. v. Mathews (1873) 12 Cox 489; R. v. Ashwell (1885) 16 Q.B.D. 190, per Stephen, J., at p. 215. If indeed
Den. 353, and all the later
linder did become bailec, then R. v. Thurborn (1849) 1 Den. 387, R. v. Preston (1851) 2
cases founded thereon, must have been wrongly decided.
even touch it, still iess
Aman "linds' a thing when
he discovers exactly where it is, even though he does not move or
take and
carry it away'.
443. See Mod.
Appr. Crim. Law, 372, 373.
** hurbon (1849) 1 den. 387 (T.A.C.) per Parke, B.; R. v. Thristle (1849) 1 Den. 502; R. v. Moore (1861)
,R. v. Mathews (1905) 1 All E.R. 137 (T.A.C.) per Lord Goddard, C.J.
v. Coopper(19sndlong-cstablished rule was emphasized in r. v. Flowers (1886) 16 Q.B.D. 643, and in Moyn
Overrie 6Q.B. 439. It is expresslv confirmed in s. 1 of the Larceny Act, 1916, but it has
398 becn a1 All D
(T.AC.). post, 288. cases
of R. v. Riley (1853) Dearsly 149 (T.A.C.) and Ruse v. Read (1949) E.
 Il l
cei
the a l b s u r d i t to apply that ' n
Of course be m a d e by saying onc
if a n attempt be oxprossed
can trcatcd a s though they arc

appear rulo
plainly
The true
extentof the usbancd and wilo
are

the other. by the law,""

law that the goods
distinguishod
Speciall
of the
common

old doctrine in the

person
well with the w e r e held
to be cqually
harmonized
husband and her would
This principle to her goods by
w o m a n belonged appropriation of his
and chattels
of a married the rule tlhat an not
c o n s t i t u t c aa

From this developed

law) did
of her
common

possession of both. possession,

and theretore (at went away
with moncy
ot wife
c o n s t i t u t e a ehange this. So ifa c o n v i c t e d of
not
adultery put an end to he could not be
larceny443 Nor
did e v e n him this money, instead assistcd
adulterer and gave adulterer had
met her 4 0 Yet if the
husband's and then
had not been
'stolen',
of a larceny
of them,431 for
for they convicted
recciving stolen goods:
been But since
of the goods, he could have the husband himsclf.
taking of
her in the original out of the
actual possession liable for stealing
have taken them wife are criminally
then he would husband and o r if, (b)
Woman's Property Act, 1882,432 at the date of the offence,
the Marricd togother" But when they
if (a) they were not living
once

other's property, to live together.

cach their ceasing so long as he
or
with a view to Theretore one spousc,
w a s appropriated
the propcrty ean take place. the Act of 1916
no prosecution even undcr
are living together the other, retains
again to cohabit with for cxample
she has no intention of ceasing
property."04 And even if the wife,
thcfts of the other's
her s o m e of his propcrty,
immunity for committing husband tennporarily and to take away with would
from the with her, then she
were to abscond
to him and bringing it back
ultinmately returning dcfinition of the word
but in the expectation of the final clause of the
she would not satisty
commit no larceny, For of the property 'permancntly'.
she does not intend to deprive him
stcaling; since of law
such things a matter
49. Characteristics of since it is law which
stolen' is a matter of law,
of being
That which makes a thing 'capable
characteristics

thing have and also those

must
which such a
ays down the characteristics though the evidence nnight
out to be his own;
umbrolla wlhieh turnN
to stoal it, an
446, .g. when he takos, intending
to nloal; anto, 62. 11, 332.
establish tho erime of attenmpting Pollook nnd Maitland, about a third
imponsibfo dogma'; another of detamatory
statements
Described by Maitland at 'thin
publication by one to
447,
and in tho
48. Such as in the crime of' connpirncy,

person
Loach 17 ('T.A.C.),
Stathm, tit, C'orono, 39
v. Harrison (1756)I
449.R.
450. R. v. Strecter (1900) 2 .13, 601.
451.R. v. Featherstono (1851) Dornly 369 (T.A.C.)
Iarcony Act, 191
452. Rejplaced n o w by n. 36 of' the 14 C App., R. 19,
thouph goographically apurt; from her then, does not receive
4 3 . Thcy may "live topother' wilo'N paramour, rocoiving it
(1919)IK.I. S6«1. lonoo a
454.Scc. 36. R. v, C'roamer tnkon by a child under eight; MeGrepor
v. I.unt (1951)
2 All 1.R. 645, proporty
stolen gods', Cr. Walter
LR 250.
Benyon(1957) Cim.
 PROPERTYUNDER COMMON LAW
Sec. 378 to 380] 3013
48. Property under Common Law
can bc no larccny whcn the owncr
The property of Husband and Wife-As therc
man cannot be guilty of stcaling from himsclf.46 Sincc
consents to the taking, it is obvious that a
in many situations the law trcated the consequences of acts donc by cithcr spouse as though
that in cffect the husband and thc wife werc for these
of the other, so
they had been the acts
it becamc common to employ thc loose (and in modern times
purposes regarded as one person,
'in law husband and wife are held to be onc person' 447
misleading) and exaggerated expression
statement strictly, as an acceptcd principle of law, will
Of course the absurdity of taking such a
it to the facts of one spouse killing or wounding
plainly appear if an attempt be made to apply that in certain circumstances
the other. The true extent of the rule can be expresscd by saying
the law,44s husband and wife are treated as though they are
one
specially distinguished by
person
common law that the goods
This principle harmonized well with the old doctrine of the
and were held to be equally in the
and chattels of a married woman belonged to her husband
of his goods by her would
possession of both. From this developed the rule that appropriation
an
constitute a
not constitute a change of possession, and
therefore (at common law) did not
So if a wife went away with money of her
larceny44s Nor did even adultery put an end to this.
husband's and then met her adulterer and gave him
this money, he could not be convicted of
assisted
'stolen',450 Yet if the adulterer had instead
receiving stolen goods; for they had not been for
could have been convicted of a larceny them,*3
of
her in the original taking of the goods, he But since
actual possession of the husband himself.
then he would have taken them out of the for
husband and wife are criminally liable stealing
the Married Woman's Property Act, 1882, if, (b)
were not living together
at the date of the offence, or
each other 's property, if (a) they
with a view to their ceasing to
live together. But when they once
the property was appropriated
one spouse, so long as he
or
can take place. Therefore
are living together no prosecution
again even under the Act of
1916
intention of ceas1ng to cohabit with the other, retains
she has no
even if the wife, for example,
for committing thefts of the other's property.4* And
immunity with her some of his propcrty,
were to abscond from
the husband temporarily and to take away
then she would
to him and bringing it back with her,
but in the expectation of ultimately returning clause of the definition of
the word
not satisfy the final
commit no larceny. For she would
to deprive him of the property
'permanently.
intend
stealing, since she does not
a matter of law
49. Characteristics of such things since it is law which
being stolen' is a matter of law,
That which makes a thing 'capable of have and also those
characteristics

which such a thing must

characteristics
lays down the the evidenee might
his own; though
turns out to be
umbrella which
to steal it, an
40. E-8. when he takes, intending 62.
establish the crime of attempting to steal, ante, Pollock and Maitland,
11, 332.
statements about a third
Maitland at 'this impossible
dogma'; another of detamatory
441. Described by and in the publication byone to

8. Such as in the crime of conspiracy,

Corone, 39.
person.
47 (T.A.C.);
Statham, tit.
1 Leach
449. R. v. Harrison (1756)
601.
450. R. v. Streeter (1900) 2 Q.B. 369 (T.A.C.).
451. R. v. Featherstone (1854)) Dearsly
Act, 1916,
36 of the Larceny
by s. 14 Cr. App. R.
19.
452. Replaced now
geographically apart; it trom her then, does
not receive
together' though paramour, receiving
4 3 . They may 'live Hence a wile's
McGregor v.
Creamer (1919)
1 K.B. S64. taken by a child under eight;
454. Sec. 36. R. v. Lunt (1951) 2
All E.R. 643, property
Walters v.
stolengoods'. Cf.
Crim. L.R. 250.
Benyon (1957)
which it is csscntial that the thing must be without.
At common law the list of attributes which a larcenablc objcct must not possess was
substantially large: but statutory provisions have gradually brought within the protcction of this
branch of the eriminal law many things which the common law had excluded.
50. The thing must be Tangible
It was essential at common law that the thing must be perceptible by the sense of touch.
There can be no larceny of a thing which has no physical substance, such as a dcbt, a copyright,455
the plot of a play, the value of an object, a balance of accounts, a difference in price, or any
other incorporeal conception. Yet the physical substance may be of very slight density; thus it
has been held that gas is larcenable at common law 456 Any difficulty which might have been

encountered endeavour
n an
to bring clectric current within the common law protection was
obviated by statutes under which it is a felony maliciously or fraudulently to abstract or cause
to be wasted
diverted, or to consume
or or use any electric1ty.
51. The thing must be movable
This means that the thing must be completely disconnected from the land. As in Roman
law it has always been held that land, in the usual legal meaning of the word, cannot be stolen.
But the common law went further, in the rule which came to be established that certain movable
things, so particularly associated with theland that they could be said to 'savour of the realty',
were also excluded from the felony of larceny. More will be said of this in 273 below.
It must here be noted that statutes in moderm times have made provisions whereby in
specified circumstances it is a felony dishonestly to remove fixturesss from buildings,
trees, bushes (or portions thereof), plants, cte., growing in gardens and the like places,50 or
ore and other specified minerals from
mincs46 (post, 303).
52. The thing must have an owner
As we have already seen ownership for this purpose originally consisted of an actual
physical possession of the thing, larceny being regarded as the forcible (vi et armis) removal of
the thing from the control of its owner. But the needs of society gradually compelled the
acceptance of a notion of legal possession' as something different from a simple physical
control, and thereafter in the general conception of larceny there ensued an increase in the
importance attached to the offender's dishonesty of purpose and a diminution in the attention
paid to the amount of force which he employed. Consistently with this tendency the meaning of
the term 'owner was extended so as to bring more persons within the law's protection 462 At

455. R. v. Kidd (1907) 72 J.P. 104.

456. R. v. White (1853)
Dearsly 203; R. v. Firth (1869) 1 C.C.R. 172. Under the
Gas Act, 1948, 3rd sched. 29 (1), it is
in cffect made an oflence
punishable summary conviction with a fine up to £5 wilfully, fraudulently or by
on
culpable ncgligence to injure any pipe, meter, or other fitting belonging to the Area Board, or to
meter or
tamper with a gas
fraudulently to abstract or use the gas; all without prejudice to any other right or remedy whether civil or
criminal for dealing with the offender.
437. Larceny Act, 1916, 10, re-enacting 45 and 46 Vict. c. 56, s. 23. E.g. the current consumed by making
s.
calls telephone
fraudulently
458. Larceny Act,
without paying the call fee, R. v.
Scotting & Rasjke (1957) Crim. L.R. 241.
1916 s. 8(1).
459. Sect. 8(2).
460. Sect. 8(3).
461. Sect. 11.
04 1e Postmaster-General has been held to be a
bailee of 'Button B' pennies in a
e s , 23 Jan.
money from an
1947. And see Martin
telephone call-box, R. v. Goodcniid,
v. Marsh (1955) Crim. L.R. 781, where it was held
placed tharai clectricity meter, the mong
larceny to exXract
 ANOWNER 3015
Sec. 378 to 380]| THE THINGMUST HAVE

'owner' cither has, or previously

neccssary that thc
common law, however, it was an still remains, would have cntitled him
to suc for the writ of
of the thing as
had, such actual posscssion
trespass against it.465
committed
docs not purport to change,
but only to con[olidate and
Since the Larceny Act, 1916, as to pogscssion
as it then existed,
it would sccm that this requircmcnt 464
simplify the law of larccny words of the Larceny Act which provides:
the wide and vague
still remains, notwithstanding or control
or person having possession
includes any part owner,
the expression 'owIner stolen.
special property in, anything capable of being
of, or a
of lost property,"5
amongst others, a bailee, finder
a
provision
scen that this protects, alters
It will be in the above statutory defínition
their holding of the property. Nothing
and a servant,455 in ferae naturaeas living at large
in their
common law rule
that there is no larceny of creatures
the law that the landowner has a qualified
notwithstanding the ancient and undoubted
natural state, or protect*a them
which him the exclusive right to hunt, take, kill,
gives
property (ratione soli) also exists ratione privilegii
in any person to
while theythere,469 this qualified property
are such creatures
granted.0It also cxists in the landowner dver
whom the sporting rights
have been he may maintain a civil
action
yount to run or fly away, so that
as propter impotentiam
are to0 42
the land, although
unauthorized person who takes any of them from
oftrespass against any
so to take them is not larceny.
from the preceding paragraph
be subject to human ownership. It follows
Le. the thing must An example is
which is not subject to human ownership.
that there can be no larceny
of a thing Act,4"3
'resurrection men', who, before
the passing of the Anatomy
thus the could
a human corpse; laboratories with subjects,
in order to supply the
used to disinter bodies from churchyards these remained the property
took either coffin or grave-clothes (since
only commit larceny they
if whether the rule must be
them).44 It is not entirely certain
of the executors who had provided of the criminal law would
a corpse,4 so if the protection
taken to be 'once a corpse, always
labour
similar anatomical preparations on which great
to skeletons and a conclusion which
perhaps not extend even or mummies-
collections of skulls
to ethnological
has been expended4"6 or 72 J.P. 104. It has
C.C.R. 315 (T.A.C.); R. v. Kidd (1907)
449; R. v.
Den. Townley (1871) 1 on the ship
do not pass into
463. R. v. Smith (1852) 2 merchant vessel for consumption for their
supplied to the c r e w of a them and carry them away
been held that provisions of larceny if they save court for
will therefore be guilty was quashed by the
divisional
the ownership of the men, who which the conviction Immer (1917) 13
Cr.
35 T.L.R. 381 (in prisoners; R. v.
v. Caldwell (1919) interned
families, Morgan where rations are supplied to
The s a m e rule applies
lackofmens rea).
A.P. R. 22. and
from the loser,
indictment of larceny
464. Sect. 1 (2) (iii). in the count the property
344. There w a s a had entrusted
64 J.P. 73; 290, to whom he
465. See R. v. Swinson (1900) from the wife of the finder,
w a s made of larceny
another in which a change found the prisoner guilty.
under which latter
count jury
the
for safe keeping, post, 268 n. 5.
21 Cr. App. R. 166;
466. R. v. Harding (1929)
467. Post, 264.
468. Ante, 199. 11 Mod. Rep. 74, 75) or a

H.L.C. 621 at p. 631. Hickringill (1706)

Higgs (1865) 11
v.
469. Blades v. another's soil (Keble
on

470. Ante, 199. As

in the c a s e of a free warren

shooting or sporting rights.

licence o r grant of
113. 89K.
471. Halsbury, Laws of
England, 1, Fitzh. Nat.
Brev. 86 and
7 Co. Rep. 15b, 17b,;
(1592)
472. Case of Swans
IV, c. 75.
473. 2 and 3 Will.
12 Co. Rep.
113. Committee refused leave to appeal against the decision
474. R. v. Haynes (1614) The Judicial
9 N.S.W. 107.
(1908)
475. Doodward v. Spence
which recognized ownership. larcenable.
such as wiring, would of course be
metal inserted,
476. But any
 LAWOFCRIMES& CRIMINOLOGY (Scc. 378 to 380
3016

does not sccm rcasonable.

Other such things are thosc conmmon to thc cnjoymcnt of all, such as the opcn air, and the
water in the sea. Yet a man acquires owvnership of sca watcr which hc has taken into a
container. and of air which he has pumped into a cylinder, and accordingly on principle such
collected water or air (which is a 'gas")*" may be stolen.
Derclict things have no ownmer. Again there may be things which arc capable of ownership
but which at the moment are not owned by anyone. Such are things which an owner has
thrown away or has otherwise abandoned,478 these are not easily distinguishable from things
which an oWner has placcd at the disposal of anyone who cares to take them, as where a man
throws coins into a crowd or into the sca for boys to dive after. In all these cases it could be
argued that there is no larceny for the reason that they are not taken invito domino. In this
category fall abandoned wrecks79 and treasure trove480 whose present owner cannot be
ascertained.
That a res nullius, that is something that is owned
by no one, cannot be the subject of.
theft. A res nullius is either (a) some
thing that in law cannot be owned, or (b) something that
can be owned but
happens not to be (e.g. something that has been abandoned by its owner).
We are concerned here with (a),
things that are not capable of being the subject-matter of
ownership or proprietary rights. It is doubtful whether there are now many such things.
53. Possession is evidence of
ownership
It should be noted that the owner
may be unknown or quite untraccable, as in the case of
brass plates being stolen from very old coffins in a
vault, or shrouds from distinterred corpses.81
It must of course in such cases
always proved
be that theother essentials of larceny were
present, and in many cases it will be found that it is impossible to show how and with
intent the suspected person acquired the
what
goods. The man himself cannot be compelled to give
an account of how he came to be in
possession property,*2 however suspicious the
of
circumstances may appear. Even if a tramp be found to
have, say, six gold watches in his
pocket, this by itself is not enough to raise the legal presumption that he has stolen them. His
possession indeed is prima facie evidence of his ownership of them (post,
or even his 497)
giving an unsatisfactory account, does not reverse this presumption and
his silence,
so as to
his conviction for theft. justify
54. Possession of
co-owners, bailees, servants
But
though there can only be a larceny where the thing (at the time of
already "belonged' to somc other person, it is not being stolen)
necessary that this person should be a sole
owner, or even a full owner. (a) He
may, for instance, be merely a joint-owner with the thief
himself. At common as law, every co-owner is lawfully entitled to the
thing, he could not commit larceny by taking it. But now, by the
possession of the whole
Larceny Act, 1916, s. 1 (1), a
411.Quaere, thereforc, whcther a man who maliciously releases the air from another
convicted of larceny of this person's motor
8. 'gas. tyres can be
E.8. Small amounts
of coal or farm produce which
pick have fallen from
up. Sce. R. v. Peters
(1843) 1 C. and K.
a cart and which the owner docs not trouble to
he
480.22 Crystal (1894) A.C. 508, at
245 (T.A.C.). Justinian, Digest, XLVIL, 2, 43. 5.
Libr. Ass.
95, 99. p. 532. Whales cast ashore are treated
481.Haynes'
482. Unless itCase (1614) 12 Co.
as wreCK.

be first Rep. 113; 1 Hawk P.C. c.

proved that the 33, s. 29.
proper
operty was recently
stolen; sce post, 492.
 Sec. 378 to 3801 POSSESSION OF CO-OWNERS, BAILESS, SERVANTS
-
3017
part-owner may be guilty
of stealing a thing
thereof; s. 40 (3). (b) And by s. 1 (2) ii, the'notwithstanding
that he has lawful
cf. possessions
than a co-owner, person stolcn from may be onc who is even
mercly some 'person having posscssion or control of, or a spccial less
in, the thing stolen e.g. a bailcc (or cven a
thicf who himsclf had stolcn it, scc 10
property3
Cushing 397)
Conscqucntly, paradoxical as it may sccm, a may commit larccny by stealing his own
man
property. For when an owner of goods has delivered them to
anyonc on a bailment4 (c.g. of
pawn or of hire) which entitles the bailee to cxclude him from
become guilty of larccny, even at common law, if he carries possession, that owner may
them off from this bailee with
intention to defraud him. He might, for instance, aim at any
for the loss; or by depriving him of an interest defrauding him by making him
chargeable
which he had in retaining his
the lien ofa cobbler, upon the boots which he has possession, such as
it will suffice even though the mended, for the cost of the
mending. Possibly
intention was to defraud (not the bailee
as where the owner of but) some other pcrson
goods, which are in a bonded ware-house,
out, in order to cheat the Crown of
the surreptitiously takes them
customs duty payable on them.485 An old
thats5 of a man who sent his servant on illustration was
a
journey in charge of some
disguised himself as a highwayman and robbed the servant of these valuables, and then
their value fromthe inhabitants of the hundred things, in order to claim
sustained by a crime of violence (under its ancient liability to make good the loss
committed within its boundaries). It must be
this connexion that
anciently a servant (certainly when away from his master s remembereddidin
have possession of
such of his master's goods as he had in his charge (ante, premises)
55. The thing must have some 229).487
value
For the purpose of the law of
larceny only economic value (and not, for
sentimental or artistic value) is taken into account. The common law was indifferent
example,
the value of the thing was whether
great or small so long as it had some actual money valuea*s for
some
person or persons. Since the measure of the value was of no
istake by the owner, or by the taker, as to the real legal importance it follows that a
value of the thing is
of larceny was always and is still concerned with the equally irrclevant.
we have seen, the law As
of the tangible thing itself and physical appropriation
should not be troubled with the
although it had to have some value
(for otherwise the courts
value' but the thing which was
investigation nor the taker's life or
liberty imperilled) it was not
stolen.45s
An appreciation
of this point will help in the elucidation of the difficulties presented by the
much cited case of R. v.
Ashwell.490
83. Sce R.
v.
Harding (1929) 21 Cr. App. R. 166, in which a conviction was upheld for robbing a servant of' master s
ndckinlosh, on the ground that the servant had a 'special property' in the mackintosh. For a criticism her
ot this case
see 46 1.Q.R. 135.
484. Rose v. Matt (1951) 1 K.B. 810 (T.A.C.).
485. R. v.Wilkinson and Marsden (1 821) R. and R. 470.
486. Anon.
(1698) 2 East P.C. 654.
*o
Anon.Bishop's
Ct.
(1429)Criminal
Y.B. 7 Hen. VI, fo. 43, pl. 18. And see Pollock and Wright, Possession in the Common I.aw, 165. 228.
Law of U.S.A.,
8th ed., 11, s. 790.
o r the fiction that ecertain things (eg. documents relating to choses in action) had no alue, sec 276 post.
489. Of course if the owner
though it had no valuc at all, this fact, if proved, would be some evidence to support the
contention that he must have consented to anyone's taking the article; while if the taker could be proved to have
thought it had no value, then equally this would go to support his contention that he had taken it under a claim of
ight made in good faith.
490. (1885) 16 Q.B.D. 190 (T.A.C.), discussed in 291 post.
 less aken Hessess of the OGY
being unfitcheque,"" place
and of a for the intrinisic
for small sliplarceny ofof value4s491 ofof a
value
and Vagueness of the consumption.495 with pro of
memoranda - s heet
proof-sheet s,4
s,97 thing
athing
of
of iiss
cancclled
canccl licrdrclevant
irTclevant
Scc.318 to 381
bank-notcs
consequent vaguenesscommon
the exact
in the
law in the matter
penCilicd on it,andbank-notaccorting
of
accores"din
judges, measure of matter of pigs
buruda
a counsel, value was never
of value
had valuc. The
capital felony prosecutors, and fixed a
beneficial common law's
effect.
aid to
obvious without benefit ofjuries, in an agescope was given for Sincc at indiffrence
uch facts clergy. when larceny the
humanc common law
akingappraisable
whereby So
many things in fictions were was in the ingcnuity
them importance that which
away, were held to damages could legal property
upport a conviction
a developed and majority of
instances
deliberate disregard
of

ne time for be below the have cxisted,

been recovered and which were of
it was
stated capital felony4s5 (and minimum of value in civil a
nset, had any such to be
doubtful
in
some cases for that was
action for
en; howsoever intrinsic worth as towhether even diamondsany felony of larceny necessaryat
to
some do
hold be
larcenable and other all). At
Some domestic them dear and precious
'because they be not of stones, if
r such animals and precious 493 price with all
fictions since from larcenable at common law.
otection for such early times it was settled There was some ancient
pt in captivity yet domestic
do not
precedent
animals as dogs and cats that the law of larceny afforded
and
d serve either for also for such wild
no
ferrects; and birds such as draught or for food, such as animals as are
easants02 and swans and the parrots, canaries, and bears, lions, monkeys
cenable.0 Bees, however, though like, which though wild by nightingales.
Yet captive or tamed
themselves inedible, are a nature yet serve for food, were
source of food and are
.. E.g. 'A hundredth part therefore
22 Q.B.D. 23 of a farthing', R.v. Morris (1840) 9 C. and P.349 per
(T.A.C.) at p. 52 per Hawkins, J.; the electricity Parke, B.; 'a pin', R. Clarence
Rasjke (1957) Crim. L.R. 241. used in á fraudulent telephone call, R.
v.
(1883)
.. A. proof-sheet containing secret Scotting and v.

the directors of a information (e.g. telegraphica

company) might cipher code, the forthcoming annual
or
C.C.C. Sess. Pap. XLIX, have a
very great pecuniary value to report of
179, a trial for stealing from the Colonial certain person. See R. v. Guernsey (1858)
which by the thief rendered futile Mr. Office a despatch,
Gladstone's mission as Lord premature publication of
(Morkey's Gladstone, bk. IV, ch. X). Still greater political High Commissioner to the lonian Islands
confusion was caused in 1878 when a
copyist disclosed to the Globe the secret Anglo-Russian agreement which Lord Foreign Olicer
had not 'taken' the documents but had Salisbury had signed. Still the copyist
merely copied one and memorized the other. This was no otfence, as the
Official Secrets Acts (428 post) had not been passed then
(Annual Register, 1878, 67)
R. v. Clark (1810) R. and R. 181; a telegram, R. v. Newman (1910) C.C.C. Sess. Pap. CLII, 451.
R. v. Perry (1845) 1 C. and K. 725 (T.A.C.).
R. v. Bingley (1833) SC. and P. 602.
R. v. Edwards (1877) 13 Cox 384.
Under statutory provisions which operated at that period.
xamples are given in Radzinowicz, Hist. Eng. Crim. Law, 1, 94 ct seq. In one case the judge (Lord Mansfield)

idvised the jury to value a gold ornament at less than forty shillings, in another, where a woman was found guilty of
several pounds, the prosecutor said 'God forbid I should take her life
tealing a large number of articles clearly worth
seven guineas the thirty-four shillings in a dwelling-house,
value them at 8s'; in a third, where a woman had stolen
stolen' to be only thirty-time shillings.
found her guilty but declared the value of the things
ie jury 275.
dales, J., by Lambard, Eirenarcha,
in 1553; cited
v.Searing (1818) R. and R. 350(T.A.C.). Hen. VIII, fo. 11 (T.A.C.).
Peacocks (1526) Y.B. 18
S in the case of peacocks, see Case of
vRough (1779) 2 East P.C. 607 (T.A.C.).
in a civil action even in veryearly days (1 520) Y.B.
2 . Yet for taking a dog damages could be recovered 0 0 And it has neer heen denied that stealing
 Sec. 378 to 380] CHARACTERISTICS WIHICH RENDERED 3019

held504 to bc larcenable. And the law protected the hawk, when tamcd, n respect of the
505
nobleness of its naturc. and its usc for princcs and grcat men.
Statutory protection was given later. But now statutory protcction has becn given to any
animal or bird ordinarily kept in confincment (such as a canary) or kcpt for any domcstic
common law.305 And it is an offcncc
purpose (such as a cat). not being the subject of larccny at
punishable on summary conviction50 to stcal a dog, aftcr prcvious convIction for stcaling a dog
it becomcs an indictable misdcmcanour to steal another.08
56. Characteristics which rendered the thing not larcenable at
Common Law
(a) The thing must not savour of the realty
As we have scen, to be a subject of larceny, a thing must be movable; and therefore in
English law land has nover been capable of being stolen. Moreover the thing must be movable
before the act of theft, and it is not enough that it was made movable by the act. Thus it is
larceny at common law to take mould from a garden or sand froma pit; or to pull down a walls09
not
and carry away the bricks. Nor was it larceny to strip woodwork, glass or other fixtures from
a house, or to cut down a
tree;" but these acts have now been made specific statutory
offences." Hence if a man demolishes someone else's house and sells the materials, he
may
be proceeded against in respect of the fixtures. The
Larceny Act, 1916, s: 1 (3) a, preserves
the rule that (with some exceptions as to
fixtures, growing plants, and mineral ores) 'anything
attached to or forming part of the realty shall
not be capable of being stolen by the person who
severs the same from the realty, unless, after severance, he has abandoned
thereof1 For, even at common law, there would be a larceny if, after the severance had once
possession
been fully completed, the thing were abandoned
by the thief but he afterwards changed his
mind and returned and carried it away. On this
point Townley's Case
referred to, as showing how a poacher who shot rabbits and hid them in(1871)513 may again be
a ditch, and then went
away, nevertheless retained 'possession', during that
interval personal absence, by mere
continuousness of intention. It will be instructive to a student
of
to compare this decision with the
case of R. v. Foley
(1889).1
where it fell; then, after two
In the latter case a trespasser mowed some
grass, but left it
days, he returned and took it away. It was held by the Irish Court
for crown Cases Reserved
that, even if he had a continuous intention,
there was not a continuous
possession; and, therefore, that his ultimate removal of the
grass contituted a larceny. If this
504. Hannam v. Mockett (1824) 2 B. andC. at p. 944. A swarm from my hive remains mine until I abandon its
505. 1 Hale P.C. 512. A
strickinginstance of the forces which mould criminal pursuit.
06.
Larceny Act, 1861, s. policy.
21, which makes it an offence punishable on
imprisonment or payment of not more than £20 above the valuc of the creature. summary conviction with six months
07. Larceny Act, 1861, s. 18, six months' imprisonment or a fine over and above the
S08. Larceny Act, dog's value, upto &20.
1916, s. 5.
S09. This would of course
be the crime of malicious
10. The damage, ante, 186.
Forester's Case (1338) Y.B. 11 and 12 Edw. II, 641,
CXXIII, 205 (T.A.C.). (T.A.C.) Cf. R. v. Pinchbeck (1896) C.C.C. Sess. Pap.
I1. Larceny Act. 1916, s. 8. Sometimes felonies. See 304
post. And see Malicious Damage Act, 1861, s. 51, and
Criminal Justice
Administration Act, 1914, s. 14 (ante, 192); Russ. Ch. 79.
2. In Billing v. Pil (1954) 1 Q.B. 70 it was held that an army but
realty' within the priviso to the section, and is bolted to a concrete base is not 'attached to..the
case in accordingly capable of being stolen
simpliciter, see a criticism of this
(1955) Crim. L.R. 404, and contrast R. v. Skujins (1956) Crim. L.R. 266.
S13.1 C.C.R. 315
514. 26 Ir. C.L. 299 (T.A.C.) Ante, 266.
(T.A.C.).
 3020 LAWOFCRIMES &CRIMINOLOGY
Scc. 378 to 380
casc be regarded as at variance with that of Townley, the latter is of coursc thc oncs
onc to b
followed by English courts. But the two may be rcconciled if it be thought
right to lay streo
the distinction that Folcy, bcfore leaving the hay, had not performcd any uncquivocal act of
taking possession of it, such as Townley peformed by hiding the rabbits.
274. Crops. It may scem strange that land, by far the most important form of wealth in the
Middle Ages, should have been left unprotected by our early criminal law.1 The omissicn the
however. is rendered more intelligible by the fact that
taking dishoncst possession of land cameon
involve its complete destruction or
disappearance, moreover, to do so will in most cases he
impossible without resort to some act which is in itself
assault.516 But a dislike of capital criminal, such as forcible entryor
punishment was probably the reason why the judges went still
further, and excluded from the scope of larceny even
only a technical connection with the land; as when things
that really were movable and
had
which had been sprcad they held it to be no crime to
carry off dung
upon a field.317 Moreover, even standing corn
and similar
crops, although the law of property
gives them to a deceased owner's executors as growing
personal, were held in criminal law to 'savour so far of the chattels
realty as not to be
Yet, on the other hand, some
things which do not thus go to the executor, but tolarcenable
the
518
larcenable, e.g. some species of heirlooms. It has heir, are
that though, by a very similarly been held in an American case319
reasonable rule of law, the keys of a house
always pass
or by conveyance), this legal identification ofalong
any alienation (whether by death with it on
realty does not go so far as to prevent its them with the
being a larceny to steal them.
Title-deeds. In general, however, the rule of
legal fiction identifies with the immobility extends to all things which any
for instance, with land, even
though they be physically movable. It was the case,
so they were not
title-deeds;321 they would not pass under a
grant of all my goods and chattels":
larcenable. And a sealed-up box,
so identified with thcm
as itself to
enclosing such deeds, was once held to be
given for this
become larcenable.322 (An additional reason has been
not
non-larcenability of title-deeds, namely, that their value is so indefinite that it was
impossible to say whether
they were worth more than 12d., cf. 296 post. For another
or not
reason identification with the right thcy evidence-
of the Larceny Act, sce. 276 post). But now under s. 7 (1)
1916, it has been made a statutory
land,523 thus abolishing the fiction. felony to steal documents of title to
It may here be convenicnt, if not
is strictly
relevant, repeat that, to
common law, gas even at
larcenable,24 and that it is a statutory felony525 'maliciously or fraudulently' to
cause to be wasted or diverted, consume, or
"abstract,
use, any electricity'.
$15. Hence water in a
pond-often carried
off copiously by roadmen for steam-rollers-is not larcenable; but it would
become so after having been
severed, as by being pumped into a cart. In 1900 the Fast
prosecuted a man for stealing 900,000 gallons of London Waterworks
in pipes). their water. And see Ferens v. O'Brien
(1883) 11 Q.B.D. 21 (water
S16. Sce Stephen, Hist. Crim.
S17. l.aw, 111, 126.
Carver v. Pierce
S18. 3 Co. Inst. (1648) Style 66.
109.
S19.Hoskins
52 Tarrance (1840) 5 Blackford 417.
v.

521 a villein was so identified; and consequently, though salable,

Hale P.C. 510, Stephen, Hist. he was not larcenable; 3 Co. Inst. 109.
$23 (1470) Y.B. 10 Edw. Crim. Law, 111, 158.
s il IV, fo. 14, pi. 9, 10; Dalton, c. 156, s. 8.
$24 also
s is One to p.
$25 ne
Iuth (1869) destroy them, 24 and 25 Vict. c. 96, s. 28.
1COn
.
action* (such promissor IIOLC,
as a
treated as
their character as pieces of paper being
hcld at common law not to be larcenable,
absorbed' or 'converted',52/ the rcason
for this was sometimes said to be that the documents
of the prosecutor, and sometimes that
did not inmport any property as being n the possession
528
they had no intrinsic value.
Changes made by statute. It will be convenient here to note modern times
briefly that in
the legislature has given wide protection to documents and records of ali kinds. Thus the Larceny
Act, 191452S. 7 makes it a felony to steal the whole or any part not only of a document of title
to lands,
but also of a long list of records, official papers and other documents; and the Larceny
Act, 1861,530 makes it a felony to destroy, obliterate or cancel (for any fraudulent purpose)
documents of title, records, choses in action, or wills.
(c) The thing must not be materially attached to the land,
person or to a
We havealready noted that a thing to be larcenable must be entirely disconnected from
that which is either not larcenable or not moved.
Thus it is no larceny to move (with intent to
steal) an article which is connected by a cord to a
a man's
house-railing or shop-counter3 or take fromn
pocket his watch which is on a chain still buttoned at the other end into his clothing552
Nor would it be a larceny if the
offender pulled at the watch so hard as to
another it would be larceny of both if drag
But if one article be attached to its owner along.
larceny33 of either if only one of them be moved.334 both be moved, but no
57. Possession
Possession has three aspects:
Secondly, the advantages attached firstly,
by
the relation between a
law to that relation is a person and a thing is a fact.
advantages are also attributed to a matter of law. Thirdly, these
given type of case is a matter person when certain other facts exist. What
of law. they are in anyy
As Roskill, L.J., has said, "Having
actually have it on one'ssomething in one's possession does not mean of necessity
That one must
phrases sometimes person."535 This is to some extent reflected
encountered, such as
"possession in fact" and "possession in law. in the
26.
Dalton, 501; but see now
$27. R.
Watts (1854)
v. Larceny Act, 1861, s. 27
28. 1 Hawk.
c. 33, s.
Dearsly 326, at p. 334. (damage to valuable securities).
29. 35, 4 BI. Comm. 234, 2
Repeating
$30. Sccts. provisions from the
East P.C. 597. Sce
269 ante.
531. Anon. 2
27, 28, 29, 30. repealed portions of the
Larceny Act, 1861.
East P.C. 556.
32. R.
33. It
v.
Wilkinson (1598) 1 Hale P.C. 508, 2
would of course be an East P.C. 536.
34. R. v.
Newman in Talfourd,attempt to steal in all these
$35.R. vs..
Purdy, (1975) 0 R Guide to
Quarter Sessionscases.
(ickin
 Corpus and animus mean different things for differcnt purposcs so much so that cven
possession in fact has comc to be no more than a variable concept of the law

*Posscssion." said Erlc, C.J., "is one ofthe most vague of all vaguc terms, and shifts its
meaning according to the subject-matter to which it is applied- varying very much in its
sensc, as it is introduccd cither into civil or into criminal procecdings."36
Lord Parker, C.J.. has cxpressed the same vicw
"For my part I approach this casc on the basis that
the meaning of "possession' depends
on the context in which it is used "537
When lawS came into
existence, this fact, which was known as "possession", was taken
into account in the sense that
certain advantages attached to the
chief of these were (a) that possessor. In Roman law the
was the basis
possession was prima facie
evidence of ownership. (6) Possession
of certain remedies, especially the
was
protected, not only against the world at possessory interdicts. Even a wrongful possessor
dispossessed him without due process of law. (¢) large, but also against the true owner who
acquisition of Possession was an important condition
ownership in
various ways. (d) the law of In
in the
pledged constituted the creditor's security pledge possession of the thing
without
Physical control came to be
any presumption of ownership.
"custody "detection". In Roman
or distinguished from
possession under the nomenclature of
law it was
possessione esse" (as distinct from designated sometimes by the phrase "in
such words as
"corporaliter", "possidere"),535 or by coupling the word
"naturalis" It is suggested that the"possessio"
and with
for English law and "naturaliter".
"detentio Roman law would be the least terms
adopt. Three situations had thus for "custody"
become possible. A man could confusing terminology to
possession. have physical control without
The appellant could
not explain how
to and wom
by deceased when she lefthethecame into possession of the ornaments
the
him. As noticed
she neither
earlier, the deceased
Convent on the
was last seen alive evening of the fateful belonging
day with
returmed to the Convent nor he only with the and thereafter appellant
one outside the home, alive and not found
company the appellant.
of anywhere clse also by any
During the time of questioning under
least
attempt to explain or clarify Section 313, Cr.P.C., the appellant instead of
at an

connecting him with the crime by his the incriminating circumstances making
circumstances were brought to his adamant attitude of total
denial of
inculpating him, and
self condemnd.
Such notice by the Court not
only lost
everything when those
appcllant, and by nobodyincriminating links of fact could, it at all, have opportunity but stood
the
else they been only
Possession in their
being personally cxclusively within hisexplained by the
and
of the ordinary sense connote a state of
existence of the thing knowledge.339
536. R. that was mind, in
in fact in the particular some awareness
S.
vs.

lowerS
Smith(1855),
& Co.
6 Cox C.C.
554, at
possessor's physical control.
Warner Metropolitan
v.
Ltd.
Gray, (1961) 2 Q.B.p. 556.
vs.

Police 351, at p. 361;

1 in Hambleton v. Commissioner, (1969) 2 (1961) 2 All E.R.
68, at p. 71:
All 5. 427, at p. Callinan, (1968)
432; (1968) 2 All 2 All E.R.
A.C. 256, at p.
304; (1968)
approved by Lord Pearce
2 All E.R.
at p.
976) 2 WLR. 588, (1974) 1 E.r. 943, at 356, at p. 387; by 356, at p. 387;
$38.In D. 36l, W.L.R. p. 945; and
by
Fisher, J., in Hambleton
$39.
Joseyh412.10.1 Ulpain
at p. 363. 41
411, at p. 415; and
Lord
Ashworth, J., in Woodage v.
Callinan,
vs.
State of explains the v. Moss,
Widgery C.J., in Sullivan v. Earl (1974) T
Kerala, distinction.
2000(3) Sunram of Caithness,
 3023
In the
ordinary use of the word possession onc has in one's possession whatever is, to
one's knowledge, physically in one's custody or under onc's physical control.540
own

Possession is a deceptively simple concept. It denotes a physical control or

control. You may possess a thing without knowing or comprchending its naturc: but
custody or
you do not
possess it unless you know you have it.541
The qucstion as to what anmounts to rcccnt posscssion sufficient to justify the presumption
of guilt varies according as the stolen article is or is not calculated to pass rcadily from hand to
hand. If the stolen articles were such as were not likely to pass rcadily from hand to hand, the
period of oneyear that clapsed cannotbe said to be too long particularly when theappcllant had
been absconding during that period.542
58. Human Body
Although dead body is not person. A dead body at times is a movable property and is in
possession of relations, DOCs and mortuary, police etc. But at times when it is lying unclaimed
asLawaris it is a movable property. But is not in possession of
any one. The word possession
is mostvague termand shifts it meaning according to its situation and according to its subject to
which it applies. The meaning varies when it applies either in civil or criminal proceding the
meaning of the possesion, infact various with the content in which it is used.
There was a rule at common law, the origins of which are some-what abscure, that there
could be no property in the human body for the purpose of the law of larceny. That a man does
not own his own body is an intelligible enough proposition (dominus memborum suorum nemo
videtur) since interference with the body is interference with a personal rather than a proprietary
right.
As a logical extension of this rule, a man's body, not being his property, was not part of his
estate passing to his personal representatives on his death. The corpse was no more the subject
of property than the living body. The "resurrectionist" or "body snatcher" who dug up corpes
after burial for the purposes of dissection was not a thief. The executor (or other person having
possession of the corpse) presumably has sufficient"property" in it to be able to bring a proprietary
claim, although the deceased's corpse is naturally not part of his estate for the purpose

distribution of assets.
Even at common law, a corpse was larcenable where work had been expended on it by
and if any material such as wire or cloth had been
reducing it to a skeleton or mummifying it,*3
used in the process, there would be theft of that
if it was taken with the corpse. Things buried
laid in the administrator of the deceased's
with a corpse can be stolen, the property being constitute
of the burial.544 The burial does not
estate, or in the person who defrayed the expense exclude others from what is buried.
intention to
abandonment, since there is a general
59. Abetment
offence of abetment by conspiracy
of the commission
The petitioner wascharged with the that
Trilok Chand. The High Court of Allahabad has clearly held
of the offence of theft b Major the
Trilok Chand has committed the theft; therefore, unless
there was no evidence that Major of abettor being
the principal offender is established, the question
substantive offence, against It is axiomatic that there cannot
be
under these circumstances does not arisc.
held guilty
862.
Prosecution vs. Brooks, 1974 AC
540. Dircctor of Public
1982 AC 768.
541. R vs. Boyesen, SCC (Cr) S52: (1995) 3 SCC 574.
vs. State ofU.P.,
AlR 1995 SC 1598: 1995
542. Gulab Chand 406.
v. Spence (1908)
6 Cth L.R.
543. See Doodeward
12 Co. Rep. 113.
544. Havnes's c a s e (1614)
 3124

conspir of cm In fapon y vr mhyt '

hold gult of crminal conepiracv
for the reatnn that m
60. 9egn
Computer crime and The Informatinn
Wsth the Terhnngy tet. #9
adiancement of technologv the new
CTime has
come to the surface This Is bemg done vpe f mmter
b mghiy reimeai
a
Hacking is the
activity of a hacker Hacker is a
programmable sTstem and who seeks
who to extend to
personvt
the maxium
zieaeei
piratcs the
programme or information for has rMierg
Initially. hacking began as wrongtiul gam nct vromg ri
Voung software somethng of a cvber prank t ws osuero
professionals
But as Internct gaincd to break into other peopie s computers anei
some hackers popularity and leave99
realiscd that there was huge monetary transactions startud ta
moncy to be made
Cyber criminals started
while brcak1ng into computer systems at
others stole credit card deta1ls baks s i
buck. Shocked law enforcers and fraudulently used sapnoung
this
across ntormatoe
young cyber crim1nals, out to make a thc world could do little more than vatch
o

destroyed them. political statement, hackod cipi

nto
enssêsve ata

A hacker's
greatest asset is that he can eas1ly
of countries has no
meaning for a cyber criminal" transcend ail phystcai barftcTs

A disc
Computer has two components "Hardware' and
information is a movable'Sottwarc Both
when filled with the are movcadic prope
nformation without the property. ln case omcbedy ack
information and the permission of owner the hacking of a program ttece
commits an offence program which now feeded has been stcalthiy
of stealing within the ambit of removed (hacked'
61. Relevant Sec 379, IPC
65.
provisions of The
lnformation Techaology Act, 2000
Tampering with
intentionally conceals, destroys computer
or
source
documents.-Whoevcr
destroy, after any computer
SVetan
or alters
saurrr
or
cod
intentionally or knowingiv cauiti knowingi ihi 0
 Sec. 381] SCOPE 3025

Section 381

Theft by clerk or servant of property in possession ofmaster.-Whoever

being a being employed in the capacity ofa clerk or servant,
clerk or servant, or
his master or
commits thefi in respect of any property in the possession of
either description for a term
employer; shall be punished with imprisonment of
which may extend to seven years, and shall also be liable to fine.
SYNOPSIS

1. Scope 7. Theft
2. Ingredients 8. Sentence
3. Clerk 9. "Shall also be liable to fine"
4. Clerk or Servant 10. Procedure
5. Master 11. Charge
6. Clerk as witness

1. Scope
The clerk or servant because of their service and opportunity to commit offence against
in them makes this offence
the property of the master and flouting the confidence reposed
in the possession of the master while for the
heinous. For this section the property must be
to his servant. This is the only
offence of Sec. 408 of this Code, the master entrust the property
section comes into play from the general
difference between these sections. The liability in this
duty of servant to protect the property of the master.

2. Ingredients
) Accused removed movable property.
of another and without his consent.
(i) He removed it from the possession
(ui) He did it with a dishonest intention.
as such in the
or was goign to be appointed
(iv) Accused was a clerk or servant taken.
was
cmployment of the person whose property
or employer
(v) Accused took the property of his master

3. Clerk
and connates-Copyist, scribe, secretary, record keeper, registrar,
Clerk means
recorder,
Judicial secretary, secretary scrivener,
courtemployee judicial assistant, judicial
court official, court scribe, judicial administrator
of which clerks
Clerk denotes a person who practises
his pen in any court, or otherwise;
offices.
there are various kinds, in several
means a writer employed in an offic,
A "clerk" is a word of wide import and ordinarily
transact other business under
private, for maintaining accounts, record1ng minutes and
public or
official superior, but who is not himself charged with any independent
the direction ofa Court or an
 LAWOFCRIMES& CRIMINOLOGY Scc. 381
3026
his dutics arc clerical, hc is a el.

subord1nate, and so long as

ministerial
function. A clerk is a
or popularly known
be officially
whatsoever designation he may litcratc and cmplovcd t do
by clcrk lics in his being
of the cmploymcn of a cmnlos.ed
The e s s e n c e
of intcll1gencc. But
such a person may be
work involhing the use of a higher degrcc
to do a certain job
whole-time worker for his cmploycr, hc would clcarly come
within
the clerk is a
thcre is a large number of workcrs wh are
1Where
of this section. But outside this class
the scope several persons at the s
for a limited purpose
and who may be so cmployed by same
emploved terms which convert a contractorint
time. It is impossible to
formulate a general rule as to the into
v e r s a . The question is
one of fact.
a clerk or v7ce

4. Clerk or Servant
A clerk or servant is a person is a person bound either by an express contract of service
or by conduct implying such a contract to obey the orders and submit to the control of his
master in the transaction of the business which it is his duty as such clerk or servant to transact.
The objects of the service of a clerk or servant' should not be criminal but a man may be
such a clerk or servant although the objects of his service are in part illegal as being contrary to
public policy
A clerk is necessarily a servant, though a servant may not be a clerk. It is not necessary that
the servant have been paid by the person he robs, but he must be under his control. So an orderly
eon paid by Governmnent, but working with the officer, is a servant. And the same rule applies to
lerks. It is the factum and not the legal aspect of their relationship that is to be looked to.
As alrcady observed, the phrase "clerk or sèrvant" is taken from the English law. A
clerk" is a word of wide import and ordinarily means a writer employed in an office, public or
rivate, for maintaining accounts, recording minutes and transact other business under the
rection of a Court, or an official superior, but who is not himself charged with any independent
anction
A clerk or servant who takes his master's property is punishable for theft under Section
I Penal Code. But where there is some special trust, as wherethe clerk or servant is entrusted
th his master's property that he may sell or dispose of it, or where he is appointed to collect
ney and to pay it over to his employer, and he misappropriates the property or money to his
m use, he is guilty of an offence of criminal breach of trust under Section 408 IPC. "The
minal mis-appropriation by such person of the particular property entrusted to him is an
ence made punishable in the same manner as the taking of master's property by a servant
en the property taken is not in his possession or charge in the timeofhis servicc or employment,
the theft by a menial servant of moncy or other property from his master's house".

An unpaid apprentice is a clerk or servant but an unpaid boatman is not a servant

aing oficial papers out of custody for showing to a party's vakil is theft byservant.
Untcd States of America, the popular meaning of "clerk" is a salesman in shop or
2.
Negus, 42
L.J.M.C. 62: Chater, 9
157 PLR 1905:
27 50 PR Cox. 1.
Bom. 1R 1931: 1905 Cr. 8.
27 Cr. LJ G87 A ID
 Sec. 3811 CLERK OR SERVANT 3027

store, regardless of any duties he may have with respect to accounts, and such a mcaning has
been judicially rccogniscd, but this is not the gencral understanding in England and India of the
word, and it is not used in that scnse in Indian Penal Code and English Statutes.
There is no difficulty in making a Master responsible for the dcfaults of his servant in
cases of absolute liability because then no qucstion of mens rea arises. Wherc however the
offence is one involving mens rca, it is unsatisfactory to trcat thc Master as having mens rca
when in fact he had no such thing and it was his servant who had the necessary state of mind
A servant acts under the dircct control and supervision of the mastcr and is bound to
conform to all reasonable orders given to him in the course of his work...An agent though
bound to exercise his authority in accordance with all lawful instructions which may be given to
him time to time by his principal is not subject in its exerCIse to the direct control or supervision
of the principal." Having regard to the nature of duties of the appellant as the Secretary
of the Society, his status was that of an agent and not servant.
(1) This section also deals with an agravated form ofthe offence oftheft. The aggravation
consists in the abuse of trust and confidence which exists in the relationship of master and clerk
and master and servant and the punishment is accordingly more severe than that for ordinary
theft.5
(2) The test whether a person is a clerk or a servant within the meaning of this section is
whether the person is under the control of and bound to obey the orders of his employer, he
may be so without being bound to devote the whole of his time to his employer's service
(3) The treasurer ofa society is bound to account to the trustees in whom the funds of the
society vest when required to do so, but that does not make the treasurer a servant of the
trustee.
(4) A committee member of a friendly society selling tickets for an excursion organised
the is the
society owner of the money collected and not a servant or clerk of the
joint
by
society.
(5) Parcel delivery clerk is a servant.
R and R agreed to give him
(6) The prisoner, a carrier from place W to place B applied to
some employment and agreed to let him carry out parcels
and go on messages when the
B
fit. gave him
prisoner had other employment for whichB was to give him what he thought
no
and
an order upon which he was to receive
£2 from Messrs S & C - Prisoner received money
the statute 39 Geo III c. 85 and was
embezzled i t - Held, the prisoner was a servant within
rightly convicted.10
for
of the office out of the officer's custody
(7) The taking of official papers by a clerk
clerk or servant.
showing them to a party's vakil is theft by a
322.
State of Uttar Pradesh, AIR 1956 S.C. 149; 1956 Cri. LJ
4. Chandi Prasad Singh vs.

5. 1887 All WN 54(54). LRI CCR 41.

LR 2 CCR 34
**
(1866) 10 Cox Cri. C. 250 (254): (1866)
6. (1873) 12 Cox Cri. C. 492(494): (1873) 241 (245).
LR 1 CCR 177: 24 & 25 Vict C. 96
**
(1869) 11 Cox Cri. C.
7. (1869)
8. (1863) 9 Cox Cri. C. 398 (400).
(1856) 26 LJ MC 4(6).
10. (1815) 168 ER 813(813).
11. AIR 1926 Bom 122 (124, 128): 27 Cri. LJ 689 (DB).