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Theft (IPC)

Updated: May 12


Theft (IPC)
Theft (IPC)

Content:-



Sec. 378: Theft


“Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft”



Essential Ingredients of Theft


The essential elements of theft are as follows:


  • The property must be movable, not immovable. (However, under English law of larceny, immovable property could also be subject to theft.)


  • The property must be in the possession of someone. (Ownership is not crucial; stealing from a thief is still theft.)


  • There must be a dishonest intention to take the property out of that person's possession.


  • The taking must occur without that person's consent.


  • The property must be moved during the taking. (Even temporary removal constitutes theft, although under English law, property should be permanently removed.)



To establish the offence of theft, it must be shown that: 


  • The accused was not legally entitled to the property alleged to be stolen, and the complainant was wrongfully deprived of the property.


  • The means employed to take possession were unlawful.


  • The taking was without consent. 


The absence of consent at the time of taking and the presence of dishonest intention are essential elements of theft.

 
 

The crux of the offence of theft lies in the intention of the perpetrator, as it is this intention that determines whether the act constitutes theft.


  • The intention must be dishonest and must be present at the time of taking or moving the property. Dishonest intention, known as animus furandi, exists when the individual intends to cause wrongful gain to themselves or wrongful loss to others.


  • Under Section 24 of the IPC, "dishonestly" is defined as doing anything with the intention of causing wrongful gain to one person or wrongful loss to another person.


  • Section 23 of the IPC defines "wrongful gain" as gaining by unlawful means property to which the person is not legally entitled, and "wrongful loss" as losing by unlawful means property to which the person is legally entitled. This gain or loss need not be total but can be temporary.



Taking without dishonest intention does not constitute theft. For instance, a person mistakenly taking another's property in good faith does not commit theft, even if they cause wrongful loss.



Similarly, if someone genuinely believes they have a right to take the property, they are not guilty of theft. A bona fide claim of right negates the presumption of dishonesty.


For example, if a person seizes cattle believing they are trespassing and intends to take them to the cattle pound, they commit no theft, even if mistaken about their right to the land.



In cases of theft, the accused can only be found guilty based on proof of dishonest intention, not mere proof of illegality. Any illegality in dispossessing the complainant may lead to liability under tort, civil law, or other sections of the IPC, but it does not necessarily constitute theft.



Sec. 379. Punishment for theft 

“Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”


Theft by wife husband


If a wife removes property belonging to her husband from their shared residence with dishonest intentions, she can be charged with theft. However, under Hindu law, a woman does not commit theft by taking her stridhan (property given to her at the time of marriage) out of the custody of her husband.


According to Section 27 of the IPC, if property is in the possession of a person's wife, clerk, or servant on behalf of that person, it is considered to be in that person's possession. In cases where a husband steals his wife's stridhan, he can be convicted of theft.


However, if the movable property is jointly possessed by the husband and wife, the husband cannot be considered to have committed theft if he takes away articles from this joint possession.



Theft by servant 


A servant is not guilty of theft when what he does is at his master’s bidding, unless he participates in his master’s knowledge of the dishonest nature of the acts.



Theft by starving person


Where a man in extreme want of food and clothes steals, he is guilty of theft because the law allows no such excuses to be considered.




Analysis of the Section


  • The term "movable property" encompasses all tangible possessions, excluding land and items permanently affixed to the earth. This definition extends to corporeal property such as boats, valuable securities, Hindu idols, crops, timber, stones, sand, and minerals once severed from the earth. Notably, while a piece of land cannot be stolen under Indian law, there are exceptions in English law.



Incorporeal properties like patents and copyright, the human body (except under specific circumstances such as research or museum preservation), and ownerless or abandoned property cannot be subject to theft.



The stolen item need not have significant value for the act to constitute theft. Living or dead human bodies, wild animals, birds, or fish in their natural habitat (res nullius) cannot be stolen, but tamed animals, those dedicated to idols, or fish in enclosed tanks can be.


Similarly, animals in reserve forests are considered ferae naturae and cannot be stolen until tamed or domesticated.



Actions such as obtaining cigarettes from an automatic box with a false coin or bypassing a gas metre to obtain gas constitute theft. Electricity, although not technically movable property, is considered stolen under the Electricity Act, 1910, with intentional metre tampering qualifying as theft.



Water conveyed through pipes or irrigation canals can also be stolen, but freely flowing river water in an open channel maintained by a person cannot.



  • Taking out of the possession of another person - Theft involves the dishonest removal and taking of movable property "out of the possession of any person," regardless of whether that person is the true owner. It is an offence against possession, not ownership. The possession may be rightful or wrongful, as long as there is physical control over the property. For instance, if a tenant raises crops on land and someone else, even if entitled to the land, removes those crops without permission, it constitutes theft.


However, certain actions, like removing ornaments from a dead body or picking up lost property, do not constitute theft but may be considered criminal misappropriation. For example, if someone finds a lost watch and keeps it, it's not theft unless the intention is to permanently deprive the owner.



The act of taking property out of another person's possession need not be permanent; even temporary removal satisfies the definition of theft in Indian law, although under English law, the intent must be to deprive permanently.



  • Joint possession - The Calcutta, Lahore, and Allahabad High Courts have opined that the removal of joint property by a co-sharer does not constitute theft, while the Madras, Bombay, and Patna High Courts have held a contrary view.



Typically, theft requires that the property be in the exclusive possession of someone other than the thief. Therefore, converting joint possession of property into exclusive possession usually does not amount to theft.



However, in the case of Ram Sharnagat Singh v State of Bihar [1966 CrLJ 856 (Pat)], it was established that a co-owner of movable property, even if having a defined share, can be guilty of theft if they remove the joint property without the consent of the co-owner, with the intent to cause wrongful loss to the co-owner and wrongful gain to themselves.



  • Taking without consent - For theft to occur, the property must be taken without the consent of the person in possession of it. Explanation 5 and illustrations (m) and (n) clarify that consent may be expressed or implied and can be given by the person in possession or by any authorised person.



However, consent obtained under improper circumstances holds no validity. For instance, consent obtained through false representation leading to a misconception of facts is not considered valid consent [Purshottam v State (1962) 64 Bom LR 788].



Similarly, if wood is removed from a forest without paying the necessary fees, even with the consent of a Forest Inspector, it would still amount to theft. This is because the Inspector's possession of the wood represents the possession of the Government, and therefore, his consent is unauthorised and fraudulent [Hanmanta (1877) 1 Bom 610].



  • Moving property in order to such taking - Theft is deemed complete once the property is moved with dishonest intent, even if it hasn't reached the thief's possession. The act of moving constitutes the offence, regardless of whether the property is actually taken away. This initial stage is crucial, focusing on the intention to steal rather than the actual act of taking.



Examples illustrate this concept: A person gathering valuables in one place with intent to steal, or attempting to steal sheets from a bed but getting caught before leaving the premises, can be held liable for attempted theft. Even minimal movement of the stolen item, like cutting a string from a necklace or lifting a bag from a vehicle, constitutes theft.



The Supreme Court clarified that possession need not be ongoing; even transient possession is sufficient for theft. Evidence of possession of stolen property, especially when such items are rare or unavailable in the market, can lead to a presumption of theft, as seen in cases involving stolen electric wires and currency notes.

 
 

Seizure of Vehicle under Hire-PurchaseAgreement vis-a-vis Theft


The legal possession of the lorry rested with the purchaser, and the banker couldn't reclaim possession without the purchaser's consent, despite default in payment. Ownership status was deemed irrelevant since Sec. 378 focuses on possession, not ownership. This was clarified in H.J Ramson v Triloki Nath (1942) 17 Luck 663.

Contrary to this, several High Courts held that seizing a vehicle due to default in payment isn't theft, citing mutually agreed payment schedules. This was affirmed by the Supreme Court in Charanjit Singh Chadha v Sudhir Mehra AIR 2001 SC 3721.



Leading Case Laws


  • Sekar v. Arumugham  [(2000) CrU 1552 (Mad.)]: In this case, Sekar took a loan from a bank for a lorry purchase, hypothecating the lorry as security. The bank seized the lorry upon default in payment, per the agreement terms. Sekar alleged theft under Sec. 379. The Madras High Court ruled that the bank couldn't be charged with theft as there was no dishonest intention. Seizing the lorry under the agreement didn't constitute theft, preserving the financier's right despite the hirer's default.



  • Magma finance Corpn. v. Jugal Klshore Singh  [(2014) (SC)]: If a hirer defaults on instalment payments, the financier can repossess the vehicle as per the agreement. This doesn't constitute theft as the financier acts within their contractual rights, lacking dishonest intent. The courts have consistently upheld the financier's ownership in hire purchase agreements. However, if a creditor removes a debtor's property to enforce debt payment without consent, it amounts to theft. Temporary removal for this purpose is sufficient for theft, even under hire-purchase agreements.



  • Pyare lal Bhargava v state OF RAJASTHAN (AIR 1963 SC 1049): The appellant, a government officer, was convicted of theft for removing a file from his office and temporarily taking it home to show to a friend. Despite intending to return it, he was found guilty. The court clarified that even temporary dispossession of another's property constitutes theft if it causes loss. The appellant's actions, though temporary, deprived the department of possession of the file, constituting wrongful loss. This aligns with previous rulings where even temporary deprivation of property is deemed theft.

 
 

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