RRYY

ruatcs the Iand anthing formmo part of h dealimo t h tm hrearhfthe

roprs(Vd
in him, or
contidence
s h e n hc is mot in possessiom of the land and appropriates ansthm fom1na part of the
CAUSMg t to be sCvered. or after it ha« heen severef or
hs severing it o
InndA
in ossessiOm N the land under a tenancv. he appropriates the whnle or

lcl when being

OT Sienre let to be used with the land
nart of ann fixture hererditaments
this subscctiom land does not include incorporeal
LnrDoscsof

44. 1Larceny
T n a ful taking and carrying away of things personal. with intent to deprive the
of the same. Larceny
is a felony, and is either simple or accompanied with
Pohtfiul owner
Circumstanccs of aggravat1on

Common Law, or plain theft. To constitute the offence there must be an

Simple larccny at
which implies that the goods must pass from the possession of a true owner
1unlawful taking.
in the goods, as a bailee). and wthout his
(including one who has qualified property only
a

there 1s, then, no changeof possession, or a changc of it by consent. or a

consent: where cannot be
a person without title to that of the true owner, there
change from the possession of
the ditference between with
property parted the owner of his own free wil
by
a larceny. As to and possession
fraudulently intluenced, in other vords, between property 'entrusted
however
by a trick
et asportavit). A bare
There must not be only a taking, but a carrying away (cepit
make off
which he found the goods, though the thicf docs not quite
removal from the place in and not of
or carrying away. It must be of personal goods,
with them, is a sufticient asportation must
thereto, or savouring thereof. The taking and carrying away
the restly or things adhering
the owner of the thing taken or, as
it is expressed, animo furandi
be with intent to deprive it appear that
be committed of a thing the owner of which is unkown, provided
Larceny may
taker in whom the ownership resides
there is some person other than the
SeeEmbezzlement and Act, 1916, ss. 17-19.
Larceny
to another
steal property belong1ng
A man steal his own property and can only
cannot
to another it is
Theft Act states when property is to be treated as belonging
While s.5 of the or interest
that in order to determine whether P has 'a proprietary right
immediately apparent to make
whether a person is 'under an obligation
or whether property 'subject
is to a trust or

restoration' reference must be made to civil

cases.
in civil
AlI ER 359, 363) referred to as "the finerdistinctions
Sachs LJ in Baxter([1971]2 LJ said un
to another' for the purposes of thett, as Bingham
law but whether property 'belongs Fire and Life Assurance Corpn ple ([ 1989|
3 All ER 927,
Lobson vs. General Accident be answered by
offers no answer and can only
the criminal law
31) is a question to which And in Shadrokh-Cigari ([1988| Crim LR 463, CA) whether
TCrerence to civil law principles.'
cquity.
to P was determined by reference to principles of
property belongcd who was
from a limited company by person
a
Cases involving the abstraction of moneys
who thus procures
to the abstraction. A person
n
a position to give the consent of the company
in and with the intention of permanently depriving the company
the company's consent dishonestly
s. 1(1) of the 1968 Act.
of the money is guilty of theft contrary to
 3008 LAWOFCRIMES&CRIMINOLXGY Scc 37% to 380

R Vs. Gomez (1993) 1 All ER 1, Housc of Lords (Lords Kcith of Kinkel, Jaunccc
Tullichettle. Lowry. Browne-Wilkinson and Slynn of Hadley)
45. Where there is no Bailment
The Act of 19164 prescrves the common law rules that a thing is not stolen unless tak
without the conscnt ofthe owner, or of his duly authorizcd agcnt. Upon this point a qucstion
akcn
1on
of practical importancc often arises in consequcncc of the plans laid by the policc for th
detection of a suspected thief. If, for mere purposes of detection, the owner of goods acquicsee
sCes
from being The rule is the same as in burglary, where an entry
larceny?
in a
thief s act a
permitted. after an unsuccessful attempt to deccive, does not amount to a constructive breakin
Similarly in larceny, if the owner, either himself or through another person, should suggest to the
thiet the pepctration of the theft, his action would constitute a sufticient consent to render the
taking no larceny, although his sole object was to secure the detection of the offender. Yet if he
went no further than to facilitate the commission of the theft
(e.g. by not prevent1ng one of his
from assisting the thicf),6 such conduct would no more amount to a consent than a
servants
if
man, knowing of the intention of burglars to break into his house, were to leave one of the bolts
on the front door unfastened
46. Facts which Negative an Apparent Consent
(a) Deceit

We have already discussed fully the anomalous crime of larceny by a trick' which was
devised by the judges in R. v. Pear 12 Quite apart from that fictitious doctrine, under which the

actual consent of the owner has been treated as if it were non-existent, a wrongdoer may make
such a complete misrepresentation of fundamental facts as to create a mistake on the part of
his victim so profound that when the details are examined it appears that in truth he was
consenting to an imagined situation quite different from that which actually existed. The student
must be careful to distinguish such a case as this, where the mistake induced is as to a matter
so fundamental that there is in truth no consent at all, from the more common position in which
is consent, but it is a consent which is legally regarded as vitiated by the
deceit of the
there
other party:"

covered in theLarceny Act,

Cundy v. Lindsay It is a situation of this kind which is
"the expression' "takes" includes
91641 by the provision that in the definition of stealing
'obtains the possession by any trick' be
btaining the posscssion by any trick". For ifthe phrase,remains to
for the wood 'takes in that definition, it still neccssary for the prosccution
ubstituted
rove that thc owner did not consent.
415
where it appcared that a man, A. Blenkarm.
Such was the position in Cundy v. Lindsay
looked into Wood Strect in which (at no. 123) were
Cupicd a room a housc, part of
in which exact street-
Blenkiron & Co., a firm whose good repute (although not the
=C premises of W. the address 37 Wood Strect', Blenkarn
Imber
ofits house) was well known Lindsay.
to Giving letters
ordered goods on credit from Lindsay, by
nducted some correspondence with, and
 AN APPAR
FACTSWHICRNEGATTVE
Lindsay s replics, and the
the name "Blcnkiron & Co
as tO resemblc
takcn in thcre hy
v aa
r and were
and Co., 37 Wood Street,
c h aa w
such
WBlenk1ron
to a n i n n o c e n t purchaser
in to
sgInd
all
all addressod
a
sold the goods in question
fraudulent throughout, w a s decided
in cffect
n v r e

is,
ho beng of his business It
of them n the ordinary w a y not be held to
have
Blenka w h oh
t hn
disposed
en d that Lindsay could
evidence showed On
o r d s that the to him 1
Cunds. ofo f Lords
House
to have ntended to pass
ownership of thc goods
himself
the
ntr
t h Blcnkam
actod with B lenk
n o r
Cundy, and hc must
b title in the goods to no
Blenkamn could pass
Blen
Lindsay 417
tacts

this vcw
ofthe larccny
o t larceny
ot them from
:ltv
gunlty of that the deccit practised
produces a
have
bon
Agan, it may happen
the chnges. mental confusion in the victim that although from his
actions

such
f u a t i o n and transfer the ownersh1p
of thc propcrty. yet on
by him to
to be a
consent
such c o n s c n t Of
compik would
s v m

that in fact, he did not givc any

it is plain
the
circumstances consists in the
rn ofofall
alithe which, in broad outlinc,
there
vamination
as 'ringing the changes', for
fraud known
traud
denomination in proposed payment
und
zhiskind
is the
shop a coin or
in a sh in
note of large amount of change the
nier's pproducing
fiender's
roducing
the seller to place on the counter

me small purchase
some small purcha
so as to
serious of
cause
manoeuvres such as asking for some of the
Ihereupon, by a moved about, a
uhich would be due. that the money is
with pretended changes of mind,
so
the counter, much m o r e of the money
on offender to pick up
oney created which enables the would s e e m
nfsed situation is m a n o e u v r e for
which the n a m e trick'
his due."° A
dishonest
automatic machine by
than is really somethingas from an
extracts
where a is person
is plainly taken invito
narticularly appropriate of the proper coin. The property
metal disk instead or unlocked by
a skeleton
inserting a worthless machine had been broken open,
completely as if the the ownership of the
contents
domino just as consents to pass
indicated that he only
o w n e r has
kev. since the is first put into it.
machine if the correct money
of his
(6) Intimidation haas
full and frec. It may
be that the o w n e r
owner's consent
be must
to ham
To be effective the of threats made by a wrongdoer
under the compulsion refused to regard a
consent but only
expressed his taken. The courts have always
allow the goods to be have held that notwithstanding
it the
him if he does not therefore they
and forced a
consent so enforced
as a real consent, of an auction-room
where the keepers
as for example that she should
taking of the goods is larceny, which she had not made a bid, by threatening
Woman to pay for
some lots for

not leave the until she had so paid.420

place minds Their
intended to deal.
thought. With
him they never
consensus ot mund
nothing, and of him they
never
there w a s no
1 6 . Of him they
knew a s between
him and them
him, and 465.
instant of time, rested upon Cairns, L.C., at p.
never, even for an whatever. Per Lord
'
did pass to a
or contract w a s held
that the ownership
could lead to any agrcement which it them by a cheque
which K.B. 243 in to pay for
Brooks (1919) 2 and purported
C o n r a s t the case Phillips
of v.
of a reputable
m a n
between this
c a s e and Cundy
assumed the n a m e
who prescnt in person, of the distinction 271.
purchaser, difficult question Can. Bar Review,
n a m e of that
m a n . On the
contract' (1945), 23
in the
wich he signedGlanville Willams, 'Mistake as to party in theCollom
law of 164.
sce and (1948) 2 K.B. consent w a s given
and the
Lndsay in Dennant v. Skinner
355 in which
Brookes was approved 7 Cox Russ.
nips v. Williams (1875) criticism thereof in
1 C.c.R. 125; contrast R. v.
12Q.B.D. 25 and the
McKale (1868) Hollis (1883) conversion
0 V pretences; and
sec R. v.
the changes but plain
a case
of
was obtaining by false ringing
cnce 741 was not an example of
Thomas (1841) 9 C. and P.
8 . R. v. was not a felonly. 188.
by a bailee, which at that date v. Hands
(1887) 16 Cox 18
gas-meter, R. Lovell (1881) 8 Q.B.D.
stamps, or gas from
a
1 C.C.R. 205 (T.A.C.); R. v.
matches, McGrath (1869)
1 (2) (i) (b). R.
v.

0 1arceny Act, 1916, s.

R. 171.
And sef R Y. Hilliard (1914) 9 Cr. App.
 3010 LAWOF CRIMES &CRIMINOLOGY
(Sec. 378 to 380
(c) Mistake under Common Law
The Larceny Act. 1916, fiurther provides2'
that in the definition
takcs shall include 'obtaining the posscssion undcr a mistakc on theof stealing thc cxnre.
part of the owncr
knowledge on the part of the taker that posscssion has becn so obtaincd.
substitution of these words for the word 'takes' in thc definition lcaves Hcre again
Hcrc auaun the
that the unaffected the requireme
owncr shall not have conscntcd. rement
Thus in Moynes v. Coopper,422 the appcal committee of
special case to the divisional court, expressed their quarter sessions, in stating ,

words 'without the consent of the opinion2 that in the Larceny Act,
1916 th
owner' dominated and governed the whole
larceny in section 1(1) of the Act, and that the definition nf
word 'takes' did not special meaning given by sub-section (2) to the
dispense with the necessity of a larceny being an
consent of the ovwner. No
objection to this obtaining without the
proposition was enunciated by the
delivering his judgement in favour of the prisoner court, and in
Lord Goddard, C.J., said.424
This Act was intended to alter the law and... it has not done
not
so... Section 1
(1)...provides 'the expression "takes" includes obtaining the (2)
the part of the owner with possess1on...(c) under a mistake on

obtained. This in our opinion is knowledge on the

part of the taker that
possession has been so
furandi at the time when he takes affirming the common law that the taker must
have animus
the property. In Middleton's Case" the wrong
money was paid by the post-office clerk before the amount of
clerk's mistake and so took it animo prisoner who picked it up knowing of the
furandi.426
An example of the
kind of situation covered by the words of the statute would be where
a
shopkeeper, intending to pass over a specific package to the
place in the shop, and, unknown to him but to the prisoner, has put it in a certain
has innocently moved it elsewhere and knowledge of the prisoner, one of his assistants
set down in its place another
The prisoner then asks the package of greater value.
shopkeeper (whose attention is directed elsewhere) where his
package is, and if he may take it;
whereupon the shopkeeper tells the prisoner to go to the
original spot and take the package which he will find there.
R. v.Middleton. In practice,
however, the courts have included, under the head of mistake,
transactions in which, although certainly enough the owner has been in some measure
he has yet undoubtedly consented to transfer
mistaken,
ownership in the property to the prisoner. This is
due to the assumption that the words of the Act were intended to confirm the
decision given by
the Court for Crown Cases Reserved in the much discussed
appcal of Middleton in 1873.427
t offoo olo 1 11
 a r E u m c h i s
aul
ven judgcs aganst the prisoner were (a) that the clerk
The cgal
four rsto
to transfer
transfo owncIship in the money but that his mistake was such that he did net
authonty
had
so.
hat even if he did so inted yet the prisoner s intent to steal in ome way
(b) tha
to do 479
intend
There more of the eleven judges while not agrecing with
that ntention these
n c g a

arguments vet
wCre in favour of upholding the conviction on the ground that the clerk did net
t i v e d

wer

to t r ansfer
r owncrship in the money and therefore did not transfer it One judge
authority
have all the
all the others. held that in fact the placing of the money upon the counter for
from
differing
differn topck up was a not a dclivery of the coins to him But this was rcally For irrelevant,
Mrddlcto1areeny
Middlcton
docs not depend upon there being no delivery by the owner hut upon the
larcenydo

the guilt of
gulaking the thing without the owner 's consent, and since the the clerk watched
p r i s o n e r s takin

and take away the cash, and was clearly willing that he should do so. it was
up and
Middleton pick
was not invito omino. What was overlooked by most of the judges who
obvous
that the taking
was that the clerk made
the
aftirmed the conviction
con
no mistake whatever as to the transfer of the
was quite well aware of what he was doing. His mistake related to
his reason for
0 This can hardly be the kind of mistake contemplated by the Act, for if it wers so.
doing the
hn dificulties would arise in distinguishing the felony of larceny under sect 1 from
false pretences under sect. 32,431 it would also make it a felonv
misdemeanour of obtaining by
consented
far skilled
a collector of antiques to purchase an object which an ignorant owner had
real value.
to sell at a price below its
conclusion that, whether the conviction
Therefore at the least it is difficult to escape from the
not wrong, the facts of that case are not covered by
the words of
was
of Middleton was or
1916.
sect. 1 of the Larceny Act,
when lost goods are found
47. Consent of the owner implied
an article
and liabilities ofa man who finds and picks up
The clearly law as to the rights
to goods is declared to be an
its has lost is not clearly recorded.s2 Trespass
which owner
and
seizing or damaging another's thing,
offence against the owner's possession, by wrongfully
theretore
when the thing had been lost by the owner and was
yet it was held to be trespass
even
consents 43
The handling of the thing will not be wrongful ifthe owner
no longer in his possession. into his control lost goods
established434 that where an honest finder takes
and so it came to be owner's consent to
them for their owner, then the
which are in danger, in order to preserve Here it is
and the taking will be no trespass.
Such unsolicited assistance must be presumed,
mentioned,435
movement
of the thing that a merely inquisitive
important to note, as previously 'taking' as would sutfiee
does not constitute such
a
When found, in order to ascertain what it is,
were
four judgements
others, so that in fact only
in the judgements
delivered by view of the tacts and

0ne
of these simply concurred
B.) rested upon a special and strange
one of these (by Pigott,
against Middleton, and
vered
not upon a legal point. R. Pear, ante, 234.
conviction should be
doctrine laid down in
v.
misunderstanding of the held that Middleton's
.his was a
B., who in a vigorous judgement
his was plainly indicated by Bramwell, Mod. Appr. Crim.
Law, 356-74
examination of this case see 251 n. 2.
ashed. For a
detailed
5 Cr. App. R. 102, cited ante, p. see Russ. 1141
in R. v. Fisher (1910)
et seq. On the topic of
"larceny by inding'
e Darling, J.'s Possession
remarks
Law, 173
in the Common
OOck and Wright, intentions or motive of the trespasser
will
et. seq. good
necessary implied) the
consent has not been obtained (or
nis pl. 5. C.J.
not excuse him; (1 505) Y.B. 21 Hen. VII,
27,
v. Clark (1615) 2 Bulstr. at p. 312, per Coke,
Isaack
Nedham (J.);
d3467) Y.B. 7 Edw. IV, 3, pl. 9, per
435, Ante 220
 LAWOFCRIMES &CRIMINOLOGY (Scc. 378 to 380
3012
the thing " That is the position in thc Civil la.
legal posscssion of but
to n e s t the finder with incidental and not an csscntial mator in thc
of trespasS
Or no trespass is
a
stnctly the question
for the crme is constituted by the taking and carryingg awav
cminal law of larceny. animus furand1."" Accordingly therc arc two roao
domino', and accompanicd
inspircd
by the casons
who thinks the owncr can be discovercd,
docs not commit larccn
why the honest finder.
the thing, and (2) becausc hc has no intcnt perman
()
hocause thc owner consents to his taking finder belicves that thc owncr cannot be discou
ancntly
the
owner of it. It, however,
to deprive the
and therefore resolves to kcrp the thing pcrmancntly for himsclf he
by taking reasonable steps
have the oWner's conscnt," but he is saved from the guilt of larcenny by
docs not nccessarily
that of fclony is that
to say, his defence to an accusation
his belicf in his own clam of right,*
is
he has not the require mens rea. It is well to note at this point that if the findcr does take
constitute himself a bailce ofit 441
possession of the thing he does not thcrcby
If the goods have not in fact been lost, but an honest person who lights upon them (ie
finds them) thinks they have becn lost and acts accord1ngly, then again although there cannot
be even an inmplicd conscut by the owner, yet there will still be no larcony, since the finder has
no animus furandi. It appears therefore that section 1(2)0%d) ofthe Act is unhappily worded,
in that (a) it uses the word 'finding442 as meaning 'taking after having found', and (b) it
unnecessarily indicates what will make a dishonest taker of the discovered thing guilty instead
of indicating the less obvious circumstances in which a man is free from guilt when he
appropriates for himself a thing which he has found.*** Most of the cases in which the criminal
liability of a finder has been discussed are concerned with the position where the finder has in
the first instance taken the thing with the honest intention of secking the loser but later on
succumbs to the temptation dishonestly to keep the thing for himself. It is well settled that in
such case he does not commit larceny444 since the common law rule requires that the animus
furandi must exist at the very time when the thing is first taken.*3
436. See Stephen, J.'s remarks in R. v. Ashwell (1885) 16 QB.D. at p. 216. That the material moment is when the thing
is first "taken' rather than when it is "found' can be seen from Cockburn, C.J.'s observation in R. v. Glyde (1868) 37
LJMC. 107 at p. 111. And see Feist v. Bonython (1944) S.A.S.R. 176.
437. As previously emphasized, there can be no larceny without trespass but there canbe trespass without larceny (een
when committed animo furandi, e.g. where the wrongdoer unsuccessfully uses force to detach a bicycle which is
chained to the railing of a house, or a watch from the chain which attaches it to its owner's clothing). Furthermore,
an owner of land has a 'qualified property' (propter impotentiam) in such creatures ferae naturac (post, 264) as are
too young to fly or run away, and may maintain a civil action of trespass against anyone who without his permission
takes them off the land, although such taking is not larceny.
all his rights since search would not be
may in fact have decided to abandon
a
438. In certain circumstances the owner

worth while.
439. R. v Reed (1842) C. and M. 306; Williams v. Phillips (1957) 41 Cr. App. R. 5.
control
440. It is in any case not a steal a dog (post 271), but by the Dogs Act, 1906, s. 4, anyone who takes
felony to
the police, with details, of the fact that he has it.
of a stray dog must cither return it to its owner notify
on

441. R. v. Mathews (1873) 12 Cox 489, R. v. Ashwell (1885) 16 Q.B.D. 190, per Stephen,
J., at p. 215. Ifindeed the
2 Den. 353, and all the later
finder did become bailee, then R. v. Thurborn (1849) 1 Den. 387, R. v. Preston (1851)
cases founded thereon, must have been wrongly decided.
442. A man "finds' a thing when he discovers exactly where it is, even though he
does not move or even touch it, still less
take and carry it
away
443. See Mod. Appr. Crim. L.aw, 372, 373.
Moore (1861) L.
1 Den. 502; R. v.
.V.Thurbon (1849) (T.A.c.) per Parke, B.; R. v. Thristle (1849)
1 den. 387
amd C. 1, R. v. Mathews (1905) 1 All E.R. 137 (T.A.C.) per Lord Goddard, C.J.
and long-cstablished rule was emphasized in r. v. Flowers (1886) Q.B.D. 16 643, and in Moynes
C Cnta
opper (1956) 1 QB.439. Itis expressiv conirmed in s. 1 of the Larceny Act, 1916, but it has been arbitrari
Read (1949) 1 All E.R.
of R. v. Riley (1853) Dearsly 149 (T.A.C.) and Ruse
n the cases v.
59%
(T.AC).Do
SCC. Y UNDI RCOMMONLAW
48. Property under Common 1 a

Theproperty
taking.
1lusband and Wi
onsents t the
the law
obvious
it is
ious that
that a man
there
cannot he can he no
in many
situations
treated the guilty
of larceny when the
thev had
been the acts of the
other, so conscquences
that in of acts stcaling
donc by from himf Ar
rsner
purposes regarded as onc person, it cffect cither Sim
ted
mislcading) and exagRgeratec
became common the
to hushand and sponuse
the wife as
throuh
the absurdity of tal
taking
expression
'in law
husband cmploy the loosc
and (and
werc
fror these
plainls appcar fif.an attempt be
Of co such a statemcnt wife arc n
modcrn times
made to apply it to strictly, as an hcld to be onc
the other. Th 1C CKtcnt of the
rulc can be the facts of
onc
acccptcd
principlc
pecrirn a
of law, will
ecially distinguishcd by the law 448 448 heh cxpresscd
s d by saying thatspouscn
saying killing
g or or wundinu
wounding
husband and wifc are that 'in certain
person
trecated as circumstances
ic
hrinciple harmonized well with the old
This
though they are one
chattels of a marricd
: doctrinc of the
and woman belonged to
fhoth. From this developed the ruleher husband and were hcld to be hat the gcods
possession of botlh
common law
ctiate change of possesSion, and that appropriation
of his goodscqually
an
not a
in the
449 Nor did cven therefore (at
adultery
put end to this. So if an
by her would common
law) did not constitute
chand's and then met her adulterer and
a wife
went away with
a

iving Stolen goods, for they had not beengave him this money, he could not bemoney of her
her in the original taking of the goods, he 'stolen 450 Yet if the adulterer had insteadconvicted of
hen he would have taken them
could have been convicted of a assisted
the Married Woman's Property Act,
out of the actual larceny of them,45 for
possession of the husband himself. But since
1882,*2
each other's property, if (a) they were not husband and wife are criminally liable for
stealing
the property was appropriated with a viewliving together
to ther
at the date of the
offence, if, (b) or

again are living together no prosecution can take ceasing to live Butthey together. when once
place.
she has no intention of ceasing to cohabit with the Therefore one spouse, so
long as he or
other, retains even under the Act of 1916
immunity for committing thefts of the other's property.454 And even if
were to abscond from the husband
the wifc, for example,
temporarily and to take away with her some of his property,
but in the expectation of ultimately
returning to him and bringing it back with her, then she would
commit no larceny. For she would not
satisfy the final clause of the definition of the word
stealing, since she does not intend to deprive him of the property
'permanently'
49. Characteristics of such things a matter of law
That which makes a thing 'capable of being stolen' is a matter of law, sinceit is law which
ays down the characteristics which such a thing must have and also those characteristics
446. E.g. when he takes, intending to steal it, an umbrclla which turns out to be his own though the evidence might

establish the crime of attempting to steal; ante, 62.

447. Described by Maitland at 'this impossibfe dogma'; Pollock and Maitland, 11,332.
statements about a thiru
0 . S u c h as in the crime of conspiracy, and in the publication by one to another of defamatory

person
49. R. Harrison (1756) 1 Leach 47 (T.A.C.), Statham, tit. Corone, 9.
v.
450. R.
v. Streetcr
(1900) 2 Q.B. 601.
R.v.Featherstone (1854) Dearsly 369 (T.A.C.).
2. s. 36 of the Larceny Act, 1916.
Replaced now together
h e y may 'liveby though geographically apart, 14 Cr. App. K. 1
does not receive
a wife's paramour,
receiving it from her then,
R. v. Creamer (1919) 1 K.B. 564. Hence under cight, McGregor
0. taken by a child
2 All E.R. 645, property
oCn
goods'. Cf. Walters v. Lunt (1951)
Benyon (1957) Crim. L.R. 250.
 3014
LAWOF CRIMES &CRIMINOLOGY
Scc. 378 to 380
which it is essential that the thing must be without
At common law the list of attributes which larccnablc objcct must not
a
substantially large. but statutory provisions have possess was
gradually brought within the protcction
branch of the eriminal law of this
many things which the common law had
50. The
thing must be Tangible cxcluded
lt was csscntial at
common law that the
larceny a thing which has no thing
There can be no must bc
of perccptible by thc sensc of touch.
the plot of a physical
play, the valuc of an object, a balance substance, such as a debt, a
other
incorporeal
copyright,"55
of accounts, a difference in
has becn hcld thatconception. Yet the physical substance may be of price, or any
gas is larcenable at common very slight density, thus it
cncountered in an endeavour to law,456 Any difficulty which
obviated by statute*57 under bring electric current within the common might have been
which it is a law protection was
diverted, or to consume felony
to be wasted
or
or use
maliciously or
to fraudulently
abstract or cause
51. The any electricity.
thing
must be movable
This means that the
law it has thing must be completely
always
But the common law
been held that
land, in the usual disconnected from the land. As in Roman
went further, in the legal
rule which camemeaning
of the word, cannot
be stolen
things, so particularly associated with
to be established
that
were also excluded the land that certain movable
from the felony of they could be said to 'savour
It must here be larceny. More will be said of this in 273 of the realty
noted that statutes in below.
certain specified moden times have made
trees, bushes* (or
circumstances it is a provisions whereby in
felony dishonestly to remove fixtures*5
portions thereof), from
specified minerals from plants, and the like buildings,
ore and other etc., growing in
mines45 gardens places,60 or
52. The
thing must have an owner (post, 303).
As we have
physical possessionalready ownership
seen for this
of the purpose originally consisted of an
thing, larceny being regarded
the thing from the as the forcible actual
control of its owner. But the (vi et armis)
removal of
acceptance of a notion of "legal needs of
society gradually
control, and thereafter in the possession as something different from a compelled the
general conception of larceny there
importance attached to the offender's simple physical
ensued an increase in
paid to the amount of force which dishonesty of purpose and a diminution in
he employed.
the
the term 'owner the attention
was extended
so as to
bring
Consistently with this tendency the
455. R.
more
persons within the law's meaning of
456. R.
Kidd (1907) 72 J.P.
v.

White
v.
104. protection 462 At
in effect made
(1853) Dearsly 203, R. v. Firth (1869) 1 C.C.R. 172.
an oflence punishable Under the Gas Act,
culpable negligencc to summary on
injure any pipe, meter, or other conviction with a fine
1948, 3rd sched. 29
(1), it is
meter or up to £S wilfully,
fraudulently
criminal for
to abstract or
use the
fitting
gas, all without
belonging the Area Board, or to
to fraudulently or by
dealing with the prejudice any other right or
to tamper with
Larceny Act, 1916, s. 10, offender.
a
457. gas
remedy whether civil
fraudulently without re-enacting
or
calls 45 and 46 Vict. c.
458. Larceny paying the call fee, R. v. 56, s. 23.
E.g. the current
459. Sect. 8(2).Act, 1916 s. 8(1). Scotting & Rasjke (1957) Crim.consumed
L.R. 241.
by making telephone
460. Sect. 8(3).
461.Sect. 1.
4.
he Postmaster-General has been held
to be
, 4s
Jan. 1947. And bailee of 'Button B'
a
OnCy
placed Irom
an
therein. electricity
see Martin pennies in a telephone call-box, R. v.
meter, the money Marsh (1955) Crim. L.R. 781, where
v.

it was held Goodchila,

having passed into the larceny to extract
ownership I Inf elantni fi
 however, it w.
was an
OSTHAVEE ANOWNER
law, still
nassession of the remains, neccssary that the
c o m m o n

had. such a c t u a l
thing as would ' owner 3015
ommitted against it,463 have cntitlcd cithcr has, or
trespas
him to suc previously
he Larceny Act, 19
Simce
916, for the
does
simplitithe
e
flarccny
as it then
existed,
not
purport to changc, but
it would
writ of

notwithstanding
still remains. notwithstanding the wid
ssion
wide and
"B vaguC
sccm that this
u C words of t s
only to
rccquircmcnt
roquircmcnt consolidatc
late andand
expresston
the exprcSSIon
the 'owner
'owner' inchdon
includes any part of as to
the Larcny Act which posscssin
or a ccial property in, owner, or person provides
be
It will be secn
soccn that
anything
that this provision
capable of
being stolen having
naving po
posscssion or Control
t
servant,
466 in
466
their holding of the protects, amongst others, a bailcc, a
and a sn law rule
and a
propcrty. in the above finder of lost property "
the
common
that there is no Nothing
larceny of creatures ferac
natural tate.
stat notwithstanding the ancient statutory definition alters
w (rationc
atione soli) wwhich
and undoubted
law thatnaturac living at
the landowner largc in their
property
pro gives him the exclusive right to hunt, has a
kill, or protect'qualified
are there,4 this qualified
m the sporting rights have been property also exists ratione
take, them
anter impotentiam are too yount granted." It also exists in the privilegii in any
to run or landowner over such person to

resnass471 against any unauthorized person who fly away, so that he creatures
may maintain a civil action
so to take them is not
takes any of them from the
larceny land,472 although
Ie the thing must be
subject to human
that there can be no larceny of a thing whichownership.
It follows
is not
from the preceding paragraph
a human corpse, thus the
subject
"resurrection men, who, before the
to human
ownership. An example is
used to disinter bodies from churchyards in order to passing of the Anatomy Act,473
only commit larceny if they took either coffin or
supply the laboratories with subjects, could
grave-clothes (since these remained the
of the executors who had provided them). It is not entirely certain whether the rule property
must be
taken to be 'once a corpse, always a corpse';*/° if so the
protection of the
perhaps not extend even to skeletons and similar anatomical preparations oncriminal
law would

has been expended4 or to ethnological collections of

which great labour
skulls mummies-a conclusion which
or

463. R. v. Smith (1852) 2 Den. 449; R. v. Townley (1871) 1 C.c.R. 315 (T.A.C.), R. v. Kidd (1907) 72 J.P. 104. It has
been held that provisions supplied to the crew of a merchant vessel for consumption on the ship do not pass into
the ownership of the men, who will therefore be guilty of larceny if they save them and carry them away for their
families; Morgan v. Caldwell (1919) 35 T.L.R. 381 (in which the conviction was quashed by the divisional court for
lack of mens rea). The same rule applies where rations are supplied to interned prisoners, R. v. Immer (1917) 13 Cr.
A.P. R. 22.
464. Sect. 1 (2) (ii).
and
the indictment oflarceny from the loser,
0 . S e e R. v, Swinson
(1900) 64 J.P. 73; 290, 344. There was a count in he had entrusted the property
from the wife of the finder, to whom
Oner in which a change was made of larceny the prisoner guilty
1Or safe keeping, under which latter count the jury found
466. R. v. Harding (1929) 21 Cr. App. R. 166; post, 268 n. 5.
467. Post, 264.
468. Ante, 199.
or a
469. Blades v. Higgs (1865) 11 H.L.C. 621 at p. 631 Mod. Rep. 74, 73)
soil (Keble v. Hickringill (1706) 11
on another's
, 199, As in the case of a free
warren

icence or grant of shooting or sporting rights.

471.
Halsbury, Laws of England, 1, 113. Brev, B6 and 89
472. 7 Co. Rep.15b, 17b; Fitzh. Nat.
e of Swans (1 592)
473.2 and 3 Will. IV, c.
75 leave to appeal against the
decisic
4.R.v.Haynes (1614) 12 Co. Rep. 113. Judicial
Committee refused
75. Doodward v. 107. The
Spence (1908) 9 N.S.W. 1
which recognized ownership. would of course
be larcenable.
An metal inserted, such as wiring,
 3016 LAWOFCRIMES&CRIMINOI.OXGY Scc. 378 to 380

docs not scem reasonable

Other such things are those common to the enjoyment of all, such as thc open air, and thc
Water in the sea. Yet a man acquires ownership of sca water which hc has taken into a
containcr. 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 havc no ownor. Again there may be things which are capable of owncrship
but which at the moment arc not owned by anyonc. Such are things which an owncr has
thrown away or has othenvise
abandoncd,478 these are not easily distinguishable from things
which an owner has placcd at thc
disposal of anyone who cares to take them, as where a man
throws coins into a crowd or into the sea for
boys to dive after. In all these cases it could be
argued that there is no larceny for the rcason that they are not taken invito domino. In this
category fall abandoncd wrecks and treasure trove480 whose
ascertained.
present owner cannot be
That nullius, that is something that is owned by no one, cannot be the
a res

theft. A res nullius is either (a) some subject of

thing that in law cannot be owned, or (6) something that
can be owned but
happens not to be (e.g. something that has been abandoned by its owner).
We are concemed here with (a),
things that are not
capable being
of the
subject-matter of
ounership 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 untraceable, as in the case of
brass plates being stolen from very old coffins in a
vault, or shrouds from distinterred corpses.51
It must
of course in such cases always be proved that the other essentials of larceny were
present; and in many cases it will be found that it is impossible to show how and with what
intent the suspected person acquired the
goods. The man himself cannot be compelled to give
an account of how he came to be in
possession of property," however suspicious the
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,
497) and his
or even his
giving an unsatisfactory account, does not reverse this presumption so as tosilence,
his conviction for theft. justify
54. Possession of co-owners,
bailees, servants
Butthough there can only be a larceny where the thing (at the time of
already "belonged' to some othcr person, it is not necessary that this being stolen)
person should be a sole
owner, or even a full owner. (a) He may, for
himsclf. At common law, as
instance, merely a joint-owner with the thief
be
every co-owner is lawfully entitled to the
thing, he could not commit larceny by taking it. But possession of the whole
now, by the Larceny Act, 1916, s. 1 (1), a
477.Quacre, therefore, whether who
convicted of larceny of this
a man
maliciously relcases the air from another
person's motor
4/8. E.g. simall 'gas'. tyres can be
amounts of coal farm
or
produce which have falen from cart and which the
pick
479. The
up. Scc. R. v. Peters
(1843) 1 C. and K. 245
a
owner docs not trouble to
Crystal (1894) A.C. 508, at p. 532. (T.A.C.). Justinian, Digest, XILVII, 2, 43. 5.
480. 22 Libr. Whales cast ashore are treated
Ass. 95, 99. as "wreck.
481.Haynes' Case (1614) 12
482.Unless it be first proved Co. Rep. 113; 1 Hawk P.C. c. 33, s. 29.
that the
property
was
recently stolen, see post, +74.
Sec78 o 38O IYSS SSON M
l t
(OOwNY RS RAW ES 1A
mas f
h)And stcalng
a
thereof ct s
by i?)thing wotw ithtandnp
r. the perenm1
s
that he han la
than a c-

stocn tvw c g a atolen from

bailee (or mav he me fil nersnd
nthething evem a thief ivt
sntl. whs himaelf had tolen t
l

hen Daradox1Ca1
Conscgucntly
as t mav sCem.
propert For an owner of
goxxds has
a
nman mav Commit lareens
xds hshm
or
Tc) which
o f hire ccntitles
nlitl dclivered
the bailec to them to hy tealimu
f lar anyone me
cxclude
awn

of larceny. nm n
lrs o
gunlty evcn at
common la, it hinm from
a
halment
for instance. he carries them possessin
becomc
todefraud him Hemight, thar nner
i n t e n t i o n

aim at off from ma

thrs
for the
loss. o r by
depriing him of an interest ng him defrauding
by makng him
hailee ith
m
ncobbler. upon the boots
otf a cobi which
he had in rctaning
the hen
which
he has mended, for the crost his pnssessn sch s chareable
ll sufficc cven though the int
intention was to of the
where the owner of goods,
which are in a dcfraud (not the mending
but) some Pogsibls bailce
as
ta cheat the Crown
out. in o r d e r

that486 of a man who

of the customs bondcd ware-housc. surreptitiouslyother pe-son
duty payable on them takes them
sent his servant on a
journcy charge 4 An old illustration
disguised himsclf as ahimsclf
highwayman and robbed
in of some was

the inhab the scrvant of valuables. and then

heir value from abitants of the hundred these
things. order
U ed by a crime of violcnce (under its ancient liability in
to claim
u committed within its to make good the loss
nnexion that anciently
a servant boundaries). It must be
of such of his master's(certainly when away from his master's
rememberod
nOsSession goods he had in his
as prem1ses)
in

did
55. The thing muust have some value charge (ante, 229) 457

For the of the law of

purpose
larceny only economic value (and not, for
centimental or artistic value) is taken into account. The common law was example.
the value of the thing was great or small so indifferent whether
long as it had some actual money value#8 for
nerson or persons. Since the measure of the value was of no some

mistake by the owner, legal importance it follows that a

by the taker, as to the real value of the thing is
or
we have seen, the law of larceny was always and is still
equally irrclevant As
concemed with the physical
of the tangible thing itself and although it had to have some value appropnation
(for otherwise the courts
should not be troubled with the investigation nor the taker's life or liberty imperilled) it was not
value' but the thing which was stolen.aus

An appreciation of this point will help in the clucidation of the dificulties presented by the
much cited case ofR. v. Ashwell 490

483. Sec R. v. Harding (1929) 21 Cr. App. R. 166, in which a conviction was upheld for robbing a servant oi her asier s
in the mackintosh. For a criticism ot this case
mackintOsh, on the ground that the scrvant had a 'special property'
see 46 I.Q.R. 135.
484. Rose v. Matt (1951) 1 K.B. 810 (T.A.C.).
485. R. v. Wilkinson and Marsden (1821) R. and R. 470.
486. Anon. (1698) 2 East P.C. lod, - -
654
see Pollock and Wright,
Possession in the Common
Law,
fo. 43, pl. 18. And
non. (1429) Y.B. 7 Hen. VI,
ed., 11, s. 790.
51shop's Criminal Law of U.S.A., 81th no value, see
276 post.
to choses in action) had
h e tiction that certain things (e.g. documents
rclating would be some evidence to
support
d00 had value at all, this fact, il proved, could be proved to
it taker
C i l he owner though
no
the article; while ifthe
consented to anyonc's
taking he had laken it
under
a ela
n that he must have this would go to support his contentíon that
then cqually
h a d no value,
right made in good faith.
490. 16 Q.B.D. 190 (T.A.C.), discussed in 291 post.
3018 LAWOFCRIMES & CRIMINOLOGY Sc. 378 to 380

It also follows that the smallncss ofthc intrinisic valuc of a thing is irrclcvant accordingly
comvictions have taken place for the larceny ofproof-shcets," of cancclled bank-notcs" of a
worthless cheque. and of a small slip with memoranda pencilled on it," and of pigs buricdas
being unfit for consumption."
Vagueness of the common law in the matter of valuc. The common law's indifference
nce
and conscquent vagueness in the matter of valuc had a beneticial cffect. Sincc at common law
the exact mcasure of valuc was never fixed scope was given for the humane ingenuity of
Judgcs. counsel. prosecutors, and juries, in an age when larceny was in the majority of instances
a capital felony without bencfit of
clergy. So fictions were developed and deliberate disregard
paid to obvious facts whereby many things in which a legal property existed, and which were of
Such appraisable importance that damages could have been recovered in a civil action for
taking them away, were held to be below the minimum of value that was necessary497 to
support a conviction for capital felony4 (and in some cases for any felony of larceny at all). At
one time it was stated to be
doubtful whether even diamonds and other precious stones, if
unset, had any such intrinsic worth as to be larcenable "because they be not of
men; howSoever some do hold them dear and
price with all
precious.*
Some domestic animals and larcenable at common law. There was some
ancient precedent
for such fictions since from early times it was settled
that the law of larceny afforded no
protection for such domestic animals as dogs and cats and also for such wild animals as are
kept in captivity yet do not serve either for draught or for food, such as bears,
and ferrects;500 and birds such as lions, monkeys
parrots, canaries, and nightingales. Yet captive or tamed
pheasants02 and swans and the like, which though wild by nature yet serve for
larcenable.505 Bees, however, though themselves inedible, are a source of food food, were
and are therefore
491. E.g. 'A hundredth part of a farthing', R.v. Morris (1840)9 C. and
22 Q.B.D. 23 (T.A.C.) at P.349 per Parke, B.; 'a pin', R. v. Clarence (1888)
p. 52 per Hawkins, J.; the electricity used in'á fraudulent
Rasjke (1957) Crim. L.R. 241. telephone call, R. v. Scotting and
492. A. proof-sheet
containing secret information (e.g. a telegraphic cipher code, or the
the directors of a
company) might have a very great pecuniary value to certain forthcoming annual report of
C.C.C. Sess. Pap. XILIX, 179, a trial for person. See R. v. Guernsey (1858)
stcaling from the Colonial Office a despatch, premature
which by the thief rendered futile Mr.
Gladstone's mission as Lord High. Commissioner publication of
to the lonian Islands
(Morkey's Gladstone, bk. IV, ch. X). Still greater political confusion was caused in
1878 when a Foreign Officer
copyist disclosed to the Globe the secret Anglo-Russian agreement which Lord
had not 'taken' the documents but had Salisbury had signcd. Still the copyist
merely copied one and memorized the other. This was no ofence, as the
Official Secrets Acts (428 post) had not been
493. R. v. Clark (1810) R. and R. passed then (Annual Register, 1878, 67).
181; a telegram, R. v. Newman (1910) C.C.C. Sess.
494. R. v. Perry (1845) 1 C. and K. 725 Pap. CLIII, 451.
495. R. v. Bingley (1833) 5C. and 602.
(T.A.C.).
496. R. v. Edwards (1877) 13 Cox 384.
P.
497.Under statutory provisions which operaled at that period.
498. Examples are given in Radzinowicz, Hist. Eng. Crim. Law, 1, 94 et
seq. In one case the judge (Lord
advised the jury to value a
gold ornament at less than forty shillings, in another, where a woman Mansfield)
was found
stcaling a large number of articles clearly worth several guilty of
I valuc them at pounds,
8s; in a third, where a woman had stolen seven
the prosecutor said God forbid I should take
her life!
the jury found her guineas the thirty-four shillings in a
dwelling-house,
guilty but declared the value of the
1553, cited by Lambard, Eirenarcha, 275. 'things
499. Hales, J., in stolen' to be only
thirty-time shillings.
S00. R. v.
Searing (1818) R. and R. 350
o r (T.A.C.).
$02.R. v.doubts
in the case of
peacocks, see Case of Peacocks (1526) Y.B. 18 Hen.
Rough (1779) 2 East P.C. 607 VII, fo. 11 (T.A.C.).
a e PC. S12. Yet for taking a dog damages (T.A.C.).
could be
The , pi. S, and see Manwood, Lawes of the recovered in a civil action even in very early days (1520) Y.D
dog's collar, or the
dressed skin of a dead Forest (1 598 ed.), 99. And it has never been denied
that stealing
dog, would be larceny.
 378 to 38O]
CHARACTERISTICSWHICHRENDERED
Sec
nd the
And law protected the
hcldto
be
larcenable

fo
for prnces and
its
and t s usc
use
hawk, when tamcd, in
of ils
naturc,
grcat men' respet of the
noblencss
ton was gven latcr But now
Statutory pro statutory protcctic has
kept fincment protection hecn gyIvcn t any
narily nt (such ao
in
ordinarily (such as a
imal or
bird
not bcing
cat). nO1
su canary)
being the subject of larceny at common or kept for any
(such as a
to steal a
conviction507 law "
And it 19 an
domestic
urpose
pu
on
summaiy
dog, after prcvious conviction for offcnee
punishablc
table misdemcanour to steal
an
mdictable
misdenmcan.

another 5o stcal1ng a dog

becomcs
t56. Characteristics which which rendered the thing not
larcenable at
Common Law

must
not
realty ur of the
The thing
(a)
have
nto to be a
subject of larccny, a thing must be
secn,

As
landhas
e
has nCvcr bcen movable,
capable of being stolen. Moreover the
nc and therefore in
English lau it iis not thing must be movable
hefore the acn a
the act
oftheft. and enough that it was made
take mould from a garden or sand movable by the act. Thus
bctore
to it is not
larceny al away the bric from a pit, or to
andcarry
bricks. Nor was it larceny to pull
strip woodwork, glass or other wall down a
or to down a tree; but these acts have now fixtures from
a house,
if made specific been
otfences. demolishes someone else's house
Lence a man statutory
offences 31 of
and sells the
materials, he may
proceeded against respect the fixtures. The Larceny Act, 1916, s. 1
in
l e that (with some exceptions as to fixtures, growing (3) a, preserves
plants, and mineral ores)
ached to or forming part of the realty shall not be capable of being stolen by the 'anything
rc the same from the realty, unless, afteT person who
severs
severance, he has abandoned possession
aronf512 For, even at common law, there would be a larceny if,
heen fully completed, the thing were abandoned by the thief butafter the severance had once
he afterwards changed his
mind and returned and carried it away. On this point
Townley's Case (1871)513 may again be
referred to, as showing how a poacher who shot rabbits and hid them in a
ditch, and then went
awav, nevertheless retained possession', during that
interval personal absence, by mere
of
continuousness of intention. It will be instructive to a student to compare this decision with the
case of R.Foley (1889).°" In the latter case a trespasser mowed some grass, but left it
v.

where it fell; then, after two days, he returned and took it

away. It was held by the Irish Court
for crown Cases Reserved that, even ifhe had a continuous intention, there was not a continuous
possession; and, therefore, that his ultimate removal of the grass contituted a larceny. If this

S04. Hannam Mockett

v.
(1824) 2 B. and C. at p. 944. A swarm from my hive remains mine until I abandon its pursuit.
S0S. 1 Hale P.C. 512. A
stricking instance of the forces which mould criminal policy.
D Larceny Act, 1861, s. 21, which makes it an offence punishable on summary conviction with sis months
nprisonment or payment of not more than £20 above the value of the creature
chaeny Act, 1861, s. 18, six months' imprisonment or a fine over and above the dog's value, upto £20.
S08. Larceny Act, 1916, s. 5.
U. Ihis would of course
be the crime of malicious damage,
ante, l60 Pinchbeck (1896) C.C.C. Sess. Pap
eser s Case (1338) Y.B. 11 and 12 Edw. II1, 641, (T.A.C.) Cf. R. v.

CXXII1, 205 (T.A.C.).

1916, 8. Sometimes felonies. See 304 post. And see Malicious
s. Damage Act, 1861, s. 51, and
C
Ba
$12. Inlh SCe (1954)Administration Act, 1914, s. 14 (ante, 192);, Russ. Ch. 79.
1 Q.B. 70 it was hcld that an army but bolted to a concrete base is not 'attached to.the
stolen simpliciter, see a criticism of this
Case in (1ac priviso to the section, and is accordingly capable of being
Crim. L.R. 404, and Skujins (1956) Crim. L.R. 266.
C )
15.1 C.C.R. 315 contrast R. v.

S14.26 Ir. C.L. (T.A.c.) Ante, 266.

299
(T.A.C.).
 020 AW (YCRIMIS&RIMINO XY | Ser 17% to 10

cas he regarded ns ! var13nce wth that of Townles rhe latter 1 of courc the one to he
follemed I nghsh comrte Bt the tw ma be rCCOmcied ifif be thught right to lay tress on
the distinctom that lotex h fore kaung the has. had not performed any uncquivocal act of
1a ing possessIn of snch as Townlev peformed by hd1ng the rabbit
74rops mat seem strange that land. by far themost important form of wealth in the
Midde Aps shomld have been left unprotccted by our carly criminal law 5 The omissio
hwever 1s Tendered more ntelhigible bv the fact that taking dishoncst possession ofland cannot
Iove complete destruct0n or disappearance. morcover. to do so will in most cases be
is

impossibl without resort to some act which is in itsclf criminal, such as forcible entry or
assault But a dislike of capital
punishment was probably the reason why the judges went still
further. and excluded from the scope of larccny even things that really were movable and had
only a technical conncction with
the land: as when they held it to be no crimc to
which had been sprcad carry off dung
upon a ficld.57 Morcover, even standing corn and similar
crops. although the law of growing
property gives them to a deccascd owner s cxecutors as chattels
personal were hcld in criminal law to 'savour so far of the
Yet. on the other hand. some things which do not thus to the realty as not to be larcenable
larcenable. cg. some spccies go executor, but to the heir, are
of
that though. by a very reasonable rulehcirlooms. It has similarly been held in an
American case"
of law, the keys of a house
any alienation (whcther by death or always pass along with it on
by conveyance), this legal identification of them with the
Tealty does not go so far as to prevent its being a
larceny to steal them
Title-deeds. In gcneral, however, the rule of
legal fiction identifies with the land.50 even immobility extends to all things which any
for instance. with though they be physically movable. It was the case,
so they were not
title-decds,21 thcy would not pass under a grant of 'all my goods and chattels":
larcenable. And a sealcd-up box,
so identified with them cnclosing such deeds, was once held to be
itself to become not larcenable.2
as
given for this (An additional reason has been
non-larcenability of title-deeds,
namely, that their value is so indefinite that it was
impossible to say whcther or not they were worth more than 12d.; cf. 296
reason identification with the right they post. For another
of the Larceny Act, 1916. it evidence sce. post). But now under s. 7 (1)
276
has been made a
land.23 thus abolishing the fiction. statutory felony to steal documents of title to
It may here be
convenient, if not strictly relevant, to repeat that, even at
is
larcenable, and that it is a
statutory fclony223
common law. gas
cause to be wasted or diverted, 'maliciously fraudulently
or to "abstract.
consume, or use, anyelectricity.
S15. Hence water in
become
pond-often carried off copiously by roadmen for
a
so after
having been severed, as by being steam-rollers-is not
prosecuted a man for stealing 900,000 pumped into a cart. In 1900 the Fastlarcenable;
London
but it would
in pipes). gallons of their water. And see Ferens v. O'Brien Waterworks
S16. Sce (I883) 11 QB.D. 21
(water
Stephen, Hist. Crim. 1.aw, 111, 126.
517. Carver v. Pierce
S18.3 Co. Inst. (1648) Style 66.
109.
S19. Hoskins v.
Tarrance (1840) 5 Blackford
20. Thus a villein 417.
was
$21.1
Hale P.C.
so
identified, and conscquently, though
510, Stephen, Hist. salable, he was not larcenable, 3 Co. Inst.
22.(1470) Y.B. 10 Edw. Crim. ILaw, 111, 138. 109
. iS i also is one to IV, fo. 14, pl. 9, 10; Dalton, c. 156, s. 8.
$24. R. v.Firh (1869) 1destroy them, 24 and 25 Vict. c. 96, S. 28.
525. C.C.R. 172.
Larcny Act, 1916, s. 10.
 atngg to a ch in action
Scc. 378 to 380]
relat
documcnt

be a
last paragraph,
must
not in the
trcatcd a
documcnt
The th1ng
isavoured of the rcalty was cxtcnded trgof applytutle
m c n t i o n c d

too
(b) which,
as
b e c a u s c
it 'savo land
he artificial
fiction to
The
of being
stolcn
nght,
on
principlc that the documcntary evidence any
as
incapable
r e l a t c d
to a
tselfthe. accessory must follow its principal
nght
itsch
of a

document
which

dentitcdu
ith
the
iaht could not be stolen then
right c o u l d
thc
Accordingly
ceually
of
the
document
be r instumcnts whie idencc of the right to a cruld net
subject
must
nght the mstn
that if
or

it was
held documcnts
at or a contract for thc salc of chcse in
thcir character as piccesunasccrtaincd
1notc,

e
stolen
Thus

a
pronmissory

larccnable

of paper
gords) were

acton
(Such
as

law
not
tO
be

reason for this was somctimes said to he that

heing treaterd as
absorbed or coInveited.27
c o m m o n

the documents
hcld at
C S being in the poSSCSSIon or the prosccutor. and
propcrty
sometimes that
nmort
an 528
not valuc
dd m i i n s i c

they
had no
ctatute.
s tatute. 1. It will be convcnient nere to note
bricfly
that in modern times
made by
made
ide
Changes
protection to documents
has given
wide and records
of ali kinds Thus the Larceny
legislature
thelegisl 29S7 makes it a felony to steal he wnole or
the any part not only of a document qf tutle
19143
Act.
ofa long list of records,otficial papers and other documents, and the Larceny
but also
to
Act.
to lands.
18615 makes it a felony to destroy, obliterate or cancel
lands.
(for any fraudulent purpose)
choses in action, or wills.
dacuments of title, records,
attached to the land, or to a person
thing must not be materially
(c) The
noted that a thing to be larcenable must be entirely disconnected from
We have already
or not moved. Thus it is no larceny to move (with intent to
hat which is either not larcenable
is connected by a cord to a house-rail1ng or shop-counters3 or take from
steal) an article which 52
his watch which is on a chain st1ill buttoned at the other end into his clothing
a man's pocket
if the offender pulled at the watch so hard as to drag its owner along
Nor would it be a larceny
be attached to another it would be larceny of both if both be moved. but
na
But if one article 534
of them be moved.
larceny5 of either if only
one

57. Possession
Possession has three aspects: relation between a person and a thing is a fa-
firstly, the
law. Thirdly. the-
Secondly, the advantages attached by law to that relation is a matter of
when certain other facts exist. What they
are in an
advantages are also attributed to a person
given type of case is a matter of law.
mean otneces=
in one's possession does not
As Roskill, L.J., has said, "Having something retlected in s

it one's person.*333 This is to some extent

tnat one must actually have on law
"possession in fact and "possession in
prases sometimes encountered, such as

to valuable securities).
1861, s. 27 (damage
Dalton, S01; but see now Larceny Act,
27. R. v. Watts (1854) Dearsly 326, at p. 334.East P.C. 597. Sce 269 ante
Hawk. c. 33, s. 35; 4 BI. Comm. 234; 2 of the Larceny
AC,
160
provisions from the repealed portions
S3 pCaling
$30. Sects. 27,
28, 29, 30.
$31. Anon. 2 East P.C. 556.
536.
532.R. 2 East P.C.
Wilkinson (1598) 1 Hale PC. 508; all these cases.
533.It would Or course be an attempt to steal in
reierences
3 V. Newman in
Talfourd, Guide to Quarter Sessio D d65 at o. 473, and further
R.on vs.Purdy,
p. 368.
(1975) QB. 288, at p. 298,
 L A W O F C R I M E S * C R I M I N O I . O X G Y

(Sec. 37& to
380
differcnt purposcs so much
3022
d1ffercnt things for off the law
hat cven
mcan variable conccpt
and
animus
than a

of all vagucter "nd

morc
Coorpus come
to be
no
most vaguc and sh1fh.
shifts
fact has
possession
in
Erlc, C.J.
"is oneofthe
which it is
applied-varvinu

P o s s e s s i o n ' . " s a i d

subjcct-matter
to
procccdings
53 much i
mcaning
according to thecither into civil or into criminal

introduced
sensc. as it is
vicw:
samc
expressced the 'posscsei of 'posscssion depend
Parker. C.J. has that the meaning of
Lord
c a s c on
the basis
I approach this
For my part used."537
the context in wlhich it is known as "possession
on , was
which was
into existencc,
this fact, or In Romaken
When laws c a m e
certain advantages
attached to the possessor.
law Roman the
into account in the sense that
facie evidence of ownership. (hD
0) of ownership.
wronpfful Possessicn
(a) that possession was prima
chief of these interdicts. Even a
werc

was the basis ofcertain

remedies, especially the
possessory poss
SSSor
large, but also against the true owner
not only against the world at Who
protected, Possession was an important condit. condition in the
was

dispossessed him without

due process of law. (c)
of pledge possession of the
various ways. (d) In the law thing
acquisition of ownership in of ownership.
constituted the creditor's security without any presumption
pledged
under the nomenclature
Physical control came to be distinguished from possession of
"custod" or "detection". In Roman law it
was des1gnated sometimes by the phrase n
distinct from or by coupling the word "possessio" with
possessione esse" (as "possidere"),*
such words as "corporaliter", "naturalis" and "naturaliter". It is suggested that the tems "custody
for English law and "detentio" for Roman law would be the least confusing terminology to
adopt. Three situations had thus become possible. A man could have physical control without
possession.
The appellant could not explain how he came into possession of the ornaments belonging
to and worm by the deceased when she left the Convent on the evening of the fateful day with
him. As noticed earlier, the deceased was last seen alive only with the appellant and thereafter
she nether returned to the Convent nor he home, alive and not found anywhere clse also byany
one outside the company of the appellant.
During the time of questioning under Section 313, Cr.P.C., the appellant instead ot
at least an
attempt to explain or clarify the incriminating circumstances
making
connecting him with the crime by his adamant attitude of total denial of inculpat1ngwhen nim, u
Circumstances were brought to his notice everything Lstood
by the Court not only lost the
Self
condemnd. Such incriminating links offact could, it at al1, have been opportunity but y the
only explaineu
appellant, and by nobody else they 539
being personally and exclusively within his knowlcag
Possession in their
ofthe existence of the thing ordinary sense connote a state of mind, in ness
that was in fact in the particular some ava
$36. R. vs.
Smith
(1855), 6 Cox C.C.
posessor's physical control
0ers &Co. Ltd. vs. Gray, 554, at p. 556.
by Fisher
(1961) 2 Q.B. 351, at
p. 361; Pearce
polan Police Commissioner, (1969) (1961)2 All E.R. 68, at p. 71:
mbieton Callinan, (1968) 2 AJI E.R.
v. 2 A.C. 256, at appo
p. 304; (1968) 2 All 56, at p. 38
A
at p. . 356, D.
S4,
(1976) 2 W.LR. 588, 432, (1968) 2 All E.r. 943, at at p. 387;
by Fisher, J., ano
in
%.In
S39. D. 412.10.1 361, at(1974)
1
W.L.R. 411,
p. 945; and by
Ashworth, ce
J., in Woodag v. Moss (1974)
Joseph vs. Stale Ulpain p. 363. a t a
p. 415; and Lord Widgery C.J., in Sullivan v. Earl
of explains the
Kerala, or
2000(R distinction.
S
 UMAN W Y
Sec378to 8O]
one me haa in pnmaenn whateve
use
pwe
of the word
phyeal erntrol
In the ordinarn <
r nnider
one
phv<Cally m oe cust
onc's own knowledge. e n t e n a phy1eal cnntrml r r
cstoetyo

decetivel smpie COep hst y dr net

PossessYn 1s a or comprehending it nature
a thmg withwoat knoWng
control Yon may poceese
rnr have
knovm
posscss1 unlcss v poSses3Ion sufticient to justify
the presumption
to
as to
what amNnints recent readtly from hand
The aucston
arttere is or is not calculated to pass
accord1ng as the stolennot likely to pass read1ly from hand to hand the
ofgult 'arics
articles were
such
as were
stolen when the appellant had
hand If the canno ott be said to be too long particularly
that clapscd
perod ot onevear
542
that period
dunng
becn absecond1ng
58. Human Body
at times is a movable property and in
1s

Although dcadbody Is not person. A dead body times when it is ly1ng uncaimed
DOCs and mortuary, police etc. But at
possession of relations. onc The word possessIon
Lawaris it is a movable in
property. But is not possession of any
as and according to its subject to
and shifts it meaning according to its situation
most vague tem
Is
Thc meaning varies when it applies either in
Civil or criminal proceeding the
which it applies.
with the content in which it is used
meaning of the possesion, intact various

some-what abscure. that therc

There was a rule at common law, the origins of which are
man does
property in the human body for the purpose of the law of larceny. That a
could be no
his own body intelligible enough proposition
is an (dominus memborum s u o r u m nemo

not own
is interference with a personal rather than a proprictar
videtur) since interference with the body
night of his
his property, was not part
logical extension of this rule, a man's body,death.bcing
not
As a
on his The corpse was no more the subject
estate passing to his personal representatives
The "resurrectionist" or "body snatcher" who dug up corpes
of property than the living body. other person having
was not a thief. The executor (or
after burial for the purposes of dissection
has sufficient"property in it to be able to br1ng proprietary
a
possession of thecorpse) presumably not of his estate for the purpose of the
deceascd's corpse is naturally part
claim, although the
distribution of assets.
on it by
larcenable where work had been expended
Even at common law, a corpse was had been
or mummifying it,3* and if any
material such as wire or cloth
reducing it to a skeleton
that if it was taken with the corpse Things burie
used in the process, there would be theft of deceased
laid in the administrator of the
s

with a corpse can be stolen, the property being burial does not constitut
in the person who defrayed the expense of the burial.344 The
estate, or
exclude others from what is
buried
since there is a general intention to
abandonment,
59. Abetment of the commissio-
with the offence of abetment by cornspiracy
The petitioner charged was
has clearly heldth
Trilok Chand. The High Court of Allahabad
theft b Major
of the offence evidence that Major Trilok Chand has committed the thett, therefore, unlessbei.të
of
there was no ot abettor
oftender is established, the question
the principal
SuDstantive offence, against
circumstances does not arise. lt is
axiomatic that there
cannot

held guilty under these

540. Director of Public Prosecution

vs. Brooks, 1974 AC 862.
$41.Rvs. Boyesen, 1982 AC 768 552: (1995) 3 SCC S74.
1995 SC 1598: 1995 SCC (Cr)
542. Gulab Chand vs. State of U.P, AIR
6 Cth L.R. 406.
$43. See lDoodeward v. Spenee (1908)
113.
S44. Haynes's case (1614) 12 Co. Rep.
 LAW OFCRIMES & CRIMINOLOXiY
024
ofBombon a
conspiracr
of one ln lapn
paties tO
1Is Vs The Sate
sich an agrccmcnt
1955(2)SCR
and

two or more persons

b racy for
must
onc can
tor the reason that one
Cperso
cannot conon with
alonc .
held gunltv of criminal
conspirac
Intormation Technola.
60. Computer crime and The ology Act, 2000Oesclf w
advancemcnt of technology
the type of Computer
new

technicalcrime
With the
crime has
to thc surface. This is being done by highla
known as
expertise.
come

actinity of a hacker.
Hacker is a person who is , h
Hacking is the cascd to cxplor
programmable sistem and who
sccks to extend to the maximum
or i n t o r m a t i o n for his wrongful gain and
knowledgecxploro
in
dge in ththiss fficdtesaand
who piratesthe programme
lnitialh, hacking began as somcthing or a cyber prank. It was consid
wrongful loss to ot
voung software profcssionals to brcak intoother peoplc's computers and leleave ansidcred wit yty ameomg
amnu
But as Internct gained popularity and huge monetary transactions started tol.
Some hackers realised that there was money to be made. on-ine
Cber crinminals started breaking into computer systcms at banks and siphonino .

whilc others
stole credit card details and fraudulently usedthis oning-off
information to make
money
ng-offmo
a
buck Shocked law enforcers across the world could do little more than watch helpla quick
voung cyber criminals,
out to make a political statement, hacked into sensitive data banksly asas
destroved them.
and
A hacker's greatest asset is that he can easily transcend all physical barriers. "The c.
of countries has no meaning for a cyber criminal"
Computer has two components 'Hardware and Software. Both are moveable properties
A disc when filled with the information is a movable property. In case somebody hacks the
information without the permission of owner the hacking of a program is an offence as the
information and the program which now feeded has been stealthly removed (hacked) He
commits an offence of stealing within the ambit of Sec. 379, IPC.
61. Relevant provisions of The Information Technology Act, 2000
65. lampering with computer source documents.-Whoever knowingly or
another to conea
intentionally conceals, destroys or alters or intentionally or knowingly causes buter

destroy, or after any computer source code used for a computer, computerprogra inainad maintane
or
System or computer network, when the computer source code is requiredto be kept.
up to.ne
1a tor thetime being in force, shall be punishable with imprisonment
with fine which may extend up to two lakh rupees, or with botn.
istung
the listn
code" m e a n s
Explanation.-For the purposes of this section, "computer source o fcomputer

of
programmes, computer commands, design and layout and programme aa
Tesource in any fom. C o rk n o w u n g

o rd e l e t e s

66. Hacking with Computer System-(1) Whoever with theintent destroys

nat
he is likely to cause wrongful loss or damage to the public or
Ue o r utilityo

O aters any information residing in a computer resource or an

valuc ches its
attects it
injuriously by any means, commits hacking T i s o n m e n t u p t o threce,
Jcars,

Whocver
nc
which
commits hacking shall be punished with imprisonm
may extend upto two 32

lakh rupees, or wiun

do R
( S C )

S4S.txSepoy 11l 1990 Cr

Sec. 381] SCOPE
3025

Section 381

Theft by clerk or servant ot propertyin possession of master.-Whoever

being a clerk or servant, or beng employed in the capacity ofa clerk or servant
commits thefi in espect o y propery m he possession of his master or
emplover shall be punishea witn imprisonment of either descriplion for a lerm
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
the property of the master and flouting the confidence reposed in them makes this offence
heinous. For this section the property must be in the possession of the master while for the
offence of Sec. 408 of this Code, the master entrust the property to his servant. This is the only
difference between these sections. The liability in this section comes into play from the general

duty of servant to protect the property of the master.

2. Ingredients
) Accused removed movable property.

(i) He removed it from the possession of another and without his

consent.

(ii) He did it with a dishonest intention.

to be appointed as such in the
(1v) Accu sed was a clerk or servant or was goign
taken.
cmployment of the person whose property was
(v) Accused took the property of his master employer
or

3. Clerk
record keeper, registrar
Clerk means and connates-Copyist, scribe, secretary, reconder
assistant, judicial
court employee judicial
Juaicial secretary secretary, scrivener,
court official, court scribe, judicial administrator
or otherwisc, of which clerks
his pen in any court,
Clerk denotes a person who practises
there are various kinds, in several officCs
means a writer employed in an offic,
A "clerk" is
a word of wide import and ordinarily transact other business under
accounts, recording minutes and
public or private, maintaining
for
official superior, but who is not hiumself charged
with any independent
the direction of a Court or an
 3026 LAWOFCRIMES&CRIMINOLOGY
function A clerk is a ministerial subordnate, and so long as his dutics
dutics are
by whatsoever designation he may be officially or popularly knowvn clerical, hch 1sa cler
The cssence of the cmployment of a clerk lics in his being litcrato
work invohng the use
ofa higher degrec of intelligcncc. But such a personand cmploycdto d
to do a cortain job. may be emplesyoa
Where the clerk is a wholc-timc worker for his employer, he
the scope of this scction. But outside this class there is a
uld cla
would
clearly ome ithn
large
number of within
employed for a limited purpose and who may be so employed by several worker ho
Derso who are ae
time. It is impossible to formulate a general rule as to the terms
which convert a sarme
a clerk or vice versa. The
question is one of fact. into
4. Clerk or Servant
A clerk or servant is a
person is a person bound either by an
orby conduct implying such a contract to obey the orders and express contract
master in the transaction of the business submit to the service
the econtrolerVice
which it is his duty as such clerk of his
The objects of the service of a "clerk or servant to tro
or
servant should not be criminal ransact
such a clerk or servant although the but a man mau !
objects of his service are in part illegal as being contrars
public policy. to
A clerk is necessarily a servant, though a servant may not be a clerk. It is not
the servant have been paid necessary that
by the person he robs, but he must be under his
peon paid by Government, but working with the control. So an orderly
clerks. It is the factum and not the officer, is a servant.
And same rule
the
legal aspect of their relationship that is to be lookedapplies
to.
to
As already 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
private, for maintaining accounts, recording minutes employed in an office, public or
direction of a Court, or an official and transact other business under the
function. superior, but who is not himself
charged with any independent
A clerk
or servant who
takes his master's
property is
there is some special trust, as punishable
381 Penal Code. But where for theft under Section
where the clerk or servant is
with his master's
property that he may sell or dispose of or ennusolleed
money and to pay it over to his it, where he is appointeu
Own he
use,
employer, and he
misappropriates properny DThe
the his
guilty of an offence of criminal breach
is
criminal
mis-appropriation of trust under Section 4ud
by such person of the
offence made
punishable in the same manner particular property entnistea antan
as the
when the
property taken is not in his taking of master's propery ment,
by a menial servant of possession charge in the time of his serviceo
as the thett or

An
money or other property from his masterd
unpaid apprentice is a clerk or
servant but an unpaid boatman 1s not a
laking official papers out
of custody for showing to a y's vakil is theft by
vakil is
servant."
in
United States
of party's
America,
the popular meaning of "clerk IS
d*
in shop
a salesman
or

Negus,
2. 157 42
PLR L.J.M.C. 62:
21 1905: 50 PR Chater, 9 Cox. 1.
Bom. LR 1931:27 1905 Cr. 8.
0
 CIERK OR SERVANT
Sec. 381] 3027
e s he may have with respect
respect to accounts,
repardless of any
duties he nay ave the
accaunt
and such a
mean1ny has
store,
recogniscd,
this is not th
but general understanding in England and ndia of the:
been judicially that scnse in
sensc in Penal C
Indian Pcnal (Codc and English Statutcs
uscd in that
word, and it is not
There is no difficulty in making a Master responsible for the defaults of his servant in
lity becausc
iability becausc then no question
of mens rea ariscs Wherc
however the
traat L.
absolute
casc of
involving mens cs
rea, it 1S
Ta,
is unsatisfactory to trcat
t
unsatisfactory
the Master as mens rea having
offence is onc nasuch
such thing
thing was his co
and it was servant who had thc nccessary state of mind
when in fact
he had no
nder the
under thec direct control and supervision of the master and is hound to
acts
scvant
A reasonable. ordcrs givcn to him in the coursc of his work An agent though
conform to all
ise his
e x c r c i s c his
authority
authori in accordancoC with all lawful instructions which may be given to
bound to
t e to time by his principal is not s5ubjcct in its exercisc to the direct control or supervision
r i n c i p a l . " Having regard to the nature of duties of the appellant as the Secretary
t h e Society, his status was that of an agent and not servant.4

(I) 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 of a society is bound to account to the trustees in whom the funds of the
the
society vest when required to do so, but that does not make the treasurer a servant of
trustee.
excursion organised
(4) A committee member of a friendly society selling tickets for an

collected and not a servant or clerk of th-

by the society is the joint owner of the money
society.8
(5) Parcel delivery clerk is a servant.
B to R and R agreed to give hi
(6) The prisoner, a carrier from place W to place applied when ti
some employment and agrecd to let
him carry out parcels and go on messages
fit. B gave hi
prisoner had no other employment
for which B was to give him what he thought
&C Prisoner received money a=
to receive £2 from Messrs S
-

an order upon which he was

and w-
statute 39 Geo 1II c. 85
embezzled it -

Held, the prisoner was a servant within the

rightly convicted.10
out of the officer's custody
(7) taking
The by a clerk of the office
of official papers
servant."
them to party's vakil is theft by a clerk or
Showing a
Cri. LJ 322.
1956 S.C. 149; 1956
Chandi Prasad Singh vs. State of Uttar Pradesh, AIR
. 250 (254): (1866) LRI
CC
S. 1887 All WN 54(54).
LR 2 CCR 34** (1866) 10 Cox Cri. C.
12 Cox Cri. C. 492(494): (1873) (245).
873) c. 96
**
(1869) 11 Cox Cri. C. 241
(1869) LR 1 CCR 177: 24 & 25 Vict
8. (1863) 9 Cox Cri. C. 398 (400).
9. (1856) 26 LJ MC 4(6).
10. (1815) 168 ER 813(813).
27 Cri. LI 689 (DB).
A I R 1926 Bom 122 (124, 128):
 AW OF CRIMES &
(8) In the
abscnce of CRIMINOIOGY
the evidence
conviction under this section that
property was stolen from Ser. 11
cannot stand 2 the
(9) The posscssion of tho.
Even possession of the master or
constructive the master
possessie
sufficicnt to constitute such as the employcr nccd not be actual
possession possession by ctual physical
physical possCion
(10) Where a under this
a
sorvant
scction 13 on
bchalf of ththe master
the confidence and domestic scrvant is whom
commits thcft, in his his master 19
ornaments, must be dealt with
he reposcs confidcncc
abscncc, of precious articles and trust,
(11) Section 562 Cr. very severcly, if the guilt is such as
gold and
betravs
offence under this P.C. Inovw
Section 360
proved 14 diamond
section.15 Cr. P.C. (1974)] has
A servant no
acts
under the direct application to an
conform to all reasonable control and
to exercise his orders given to him in
the
supervision
of the master
and is bound
authority accordance with all
from time to time in course of his work. An
agent
to
of the by his principal is not lawful instructions which though bound
principal. Having regard to the subject in its may be
exercise to the direct control orgiven to him
Society, his status was that of an nature of duties of the supervision
should be charged under agent and not servant. appellant as the Secretary of the
409, IPC was of noMoreover, whether
as the
Sec. 408 or Sec. the appellat
sentence imposed on him
could be maintained under Sec. 409, IPC. importance in the present case,
viz., four years
even under Sec. rigorous imprisonment,
The story of the
408, IPC.16
and was recovered from
accused that the
money was given to the servant
the accused had entrusted
the almirah seems to be
too alongwith ormaments
the keys of the almirah togood
to be true. It is too
much to think that
the servant.7
The securing of
had some obligue motive employment by giving out false name and wrong address shows that
in his mind."5 he
5. Master
In the absence of evidence as to
ownership of stolen property, a conviction under
Sec. 381, cannot stand. Sec. 381 deals with theft in
respect of the property in possession of
the master of the cmployer.20

6. Clerk as witness
It is wrong to say that the person holding clerical post cannot be called independent
witness. The respectability and the veracity of a witness is not necessarily depending on the
status in life. It cannot also be said that the clerks are less truthful and more amenable than their
superior officcrs.21

12. AlR 1916 Mad 1103(1)(1103): 16 Cri. LJ 640 (DB).

** 168 ER 228 (228): 1 Leach 251.
13. 1 Wcir 437 (438): (1854) 169 ER 717 (722): Dears 257 (1782)
14. 1959 Jab LJ 738 (738) ** 1951 AJI LJ 630(631).
.(1913) 14 Cri. LJ 113 (114) (Lah) ** (1908) 7 Cri. LJ 319(320)(Nag).
322.
Prasad State ofU.P., AIR 1956 SC 149: 1956 Cr. LJ
T.Chandi Singh vs.
Cr. LJ 688.
. State B. Eswariah, AlR 1983 SC 353: 1983
of A.P. vs. 846.
SC 446: 1983 Cr. LJ
arabhadrappa vs. Statce of Karnataka, AIR 1983
19. 16 Cr. LJ 640: 30 Ind.
Cas. 464.
20.
1974(1) Cr. LT 126 (Punj).
a z a r i Lal vs. State (Delhi Administration), AlR 1980 SC 873: 1980 Cr. LJ 364.
 CLERK AS WITNESS
S 381 029
r3avestv of tnith it persons coming trom humble
It would orig1n and helonging
eowerlov
wealthw strata of society are to be disbeclieved
Ise
rejected
to
or
as
ofticewise,

arOund
the of their humble position in socicty The conversc unworthy of
on

bolhet
solely
at s held
held that it is wrong to reject the testimony
was
unfortunatcly
a p p a r s
betue cannot be styled as independent witnesses ?
clerks
of clerks by
observing that
are
petty
thev 1he mere fact that he was a scrvant of the dcccascd,
ground to dub him
was no
an
ntercsted tisan"
or "partisa witness or to brush aside his otherwise reliablc testimony

7.Theft
4s thett in respect of any property in the
The
posscssion of his master or cmplover
that at
he time
the time of theft, the property stolen must have been in the
possession of the
enmployer of the.accused. Wherc
show

nhaster
or
wome policcmen stole a sum of moncy shut up in a
in thec lice Treasury building, over which they were mounting guard as sentinals
bon andplacod
T C hcld guilty ot an ottence under this section and not under Sec. 409 24

S. Sentence

S c 381 provides punishment for a person who being a clerk or servant of the property in
nassession of the master, committing theft in respect of any such property 25
Sentence ofthe imprisonment is obligatory under Sec. 381, however, the court can adjust
period of imprisonment.26

9. Shall also be liable to fine"

The word 'liable' means a future possibility or probability happening which may or may
not actually occur. In other words the Magistrate has the power to impose the sentencc of the
fine under Sec. 381, but it is discretionary.27

10. Procedure
The offence under Sec. 381 is Cognizable, Non-bailable, Compoundable with permission
of the Court.
11. Charge
L. (name and office of the Magistrate, etc.) hereby charge you (name of the accuseaî)
as followS
That on or about at you being a clerk of A (or servant employcd in the
capacity of a clerk or servant of A) committed theft by stealing certain property, namely
committed an offence punishable under Sec. 381,
in the possession of the said A, and thereby
IPC and within my
cognizance.
And I hereby direct that you bc tried by the said Court on the said charge.

1982 Cr. LJI.

s h a n Chand Mangal vs. Stateof Rajasthan, AIR 1982 SC 1511: 1980 Cr. LR (SC) 114.
23 211:
State of Orissa, 1980 ScC (Cr)
adhey Shyam Narendra vs. WR (Cr) 29.
uggurnath Singh. (1865) 2 WR (Cr) 55; Boidnath Singh, (1865) 3
25. 25 Cr. LJ 697.
26. 1975 Cr. LJ
27. AIR 1957
1345 1957 Cr. LJ 389.
Punj. 55: ILR 1957 Punj. 426:
 3030 LAWOFCRIMES& CRIMINOLOGY
(Scc. 182
Section 382

Theft after preparation made for causing death, hurt or

restraint in
order to the committing of the theft.-Whoever commils
thef1, having made
preparation for causing death, hurt, restraint, or fear of death, Or of
or or
hurt, or of resiraint, 1o any person, in order to the
in order io the
committing of such thefi, or
effecting of his escape afier the commilling of such theft, or in
onder to the retaining
of property taken by such thefl, shall be punished with
rigorousimprisomnentfor a term which may extend to len years, and shall
also be liable
fine.
to

Tllustrations.-fa) A commits theft on property in Zs possession; and, while

this theft. he has a loaded pistol under his committing
purpose of hurting Z in case Z should resist.
garment, having provided this pistol
for the
A has committed the
section. fofence defined in this
(b) A picks Zs pocket, having
that they may retrain Z, posted several of his companions near him, in order
if Z should perceive what is passing and should resist, or should
attempt to apprehend A. A has committed the
offence defined in this section.
SYNOPSIS
1. Scope
5. Preparation
2. Ingredients
6. Procedure
3. Proof of theft
7. Charge
4. Intention to steel
1. Scope
For this offence one
prepares himself and is ready to cause death, hurt or cause
restraint if resisted so his ready to cause
injury. In case of robbery one wrongful
This section relates to an actually causes injury.
aggravated form of Sec. 379 which
The aggravation in this case is intimidation of provides the punishment for theft.
made. Such preparation may consist
personal injury as evidence
by preparation
the
of the possession of a stick or a knife or any other weapon
used or sufficient for causing
hurt, or it may consist of the presence of confederates who
though unamed, put a person in fear of restraint.
In a casc under Sec. 382, IPC, it is not
necessary that hurt must be caused or an attempt
to cause hurt must bc made. When
hurt is actually caused or as
for attempt is made to cause hurt
committing theft, offence may become punishable to "Robbery". But in an offence
the
under Scc. 382 the
not have caused
preparation on the part of the accused to cause hurt, though he may or may
hurt, is sufficient.. One, who keeping a knife with him commits theft be
able for
conviction for the offence under Sec. 382 even though there was no occasion mayhim
for
wield the knife or to cause injury. What is relevant is the preparedness of the accused in such
dnner that he may be able to cause hurt to others who might resist
oTescaping away or taking the or may come in his way
. stolen property away.
Diwansingh, 1980 Cr. LJ 760
(M.P.).
 INGREDIENTS
3031
e C3 8 2 7

2. Ingredients
of the is movable property
subjcct-matter
)The
possession f aany
of person.
in
It was
accused
moved it.
The
() in posscssion
without the conscnt of the person
He did
so
n)
to take it out of his posscssion.
He did so intending
did so dishonestly.
He

accused had, when committing such theft, made preparation for causing
(i)
That athe
(1i) That
or fear of death, or of hurt, or of restraint to any person
death or hurt or restraint,
either-
made the said preparation
si) He
commit the theft; or
(a) to
his escape, or
(b) to make good
his spoil.
(c) to retain
of theft
3. Proof
is necessary before conviction under
this section. Where the
Proof of actual theft his cattle and was
a bed in front of an enclosure containing
was sleeping on
eomplainant to the ground and beat
find the accused persons round his bed, who threw him
awakened to
under Sec. 323 but not of one under
the accused were guilty of an offence
him.it was held, that
Sec. 382.2

4. Intention to steel
to the spot together and went with the stolen sheep,
Where all the accused came together
carried away a sheep while others waited at a distance and
two of them came forward and
was held it could be presumed
were variously armed, it
there was evidence that all of them
commit theft, that all of them wanted to
from these facts that all of them came with intent to
and thus all of them were liable for theft.3
carry away the stolen property
5. Preparation
it he was seized by B. He dropped
rice from a house. While carrying away
A stole some
before stabbing B, he
the rice and stabbed B with knife. It was held
that as A dropped the rice
and his offence was
not have caused the hurt for the purpose
of carrying away the rice
could altered to one under Secs.
380 and 324, IPC."
LCrerore not robbery. The conviction was
Ilus. (a) and the posting of
possession of a loaded pistol by A
under his garment in
ne instance of preparation
unknown to other.
Icaerates around Z in Ilus. (b) are both conviction
committing theft may be liable for
knife with him while
N Who is keeping a was no occasion
for him to wield the
though there
C n c e under Sec. 382, IPC,
even manner
accused in such a
relevant is the preparedness of the
c a u s e injury. What is
25 Cr. LJ 386.
2 Singh vs. Emperor, AlR 1923 Lah. 512: 29: 51 Cr. LJ 4*
ol
4. 7
Dala vs. Rabari Bhagu, AIR 1950 Kutch
C. LJ 446.
.
Hushurt Shaik, 6 w.R. 85.