Theft and its Ingredients

Section 378

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.

Explanation 1. —A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.

Explanation 2.—A moving effected by the same act which effects the severance may be a theft.

Explanation 3.—A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it.

Explanation 4.—A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.

Explanation 5.—The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied.

Illustrations

1. A cuts down a tree on Z’s ground, with the intention of dishonestly taking the tree out of Z’s possession without Z’s consent. Here, as soon as A has severed the tree in order to such taking, he has committed theft.
2. A puts a bait for dogs in his pocket, and thus induces Z’s dog to follow it. Here, if A’s intention be dishonestly to take the dog out of Z’s possession without Z’s consent, A has committed theft as soon as Z’s dog has begun to follow A.
3. A meets a bullock carrying a box of treasure. He drives the bullock in a certain direction, in order that he may dishonestly take the treasure. As soon as the bullock begins to move, A has committed theft of the treasure.
4. A being Z’s servant, and entrusted by Z with the care of Z’s plate, dishonestly runs away with the plate, without Z’s consent. A has committed theft.
5. Z, going on a journey, entrusts his plate to A, the keeper of a warehouse, till Z shall return. A carries the plate to a goldsmith and sells it. Here the plate was not in Z’s possession. It could not therefore be taken out of Z’s possession, and A has not committed theft, though he may have committed criminal breach of trust.
6. A finds a ring belonging to Z on a table in the house which Z occupies. Here the ring is in Z’s possession, and if A dishonestly removes it, A commits theft.
7. A finds a ring lying on the highroad, not in the possession of any person. A, by taking it, commits no theft, though he may commit criminal misappropriation of property.
8. A sees a ring belonging to Z lying on a table in Z’s house. Not venturing to misappropriate the ring immediately for fear of search and detection, A hides the ring in a place where it is highly improbable that it will ever be found by Z, with the intention of taking the ring from the hiding place and selling it when the loss is forgotten. Here A, at the time of first moving the ring, commits theft.
9. A delivers his watch to Z, a jeweller, to be regulated. Z carries it to his shop. A, not owing to the jeweller any debt for which the jeweller might lawfully detain the watch as a security, enters the shop openly, takes his watch by force out of Z’s hand, and carries it away. Here A, though he may have committed criminal trespass and assault, has not committed theft, inasmuch as what he did was not done dishonestly.
10. If A owes money to Z for repairing the watch, and if Z retains the watch lawfully as a security for the debt, and A takes the watch out of Z’s possession, with the intention of depriving Z of the property as a security for his debt, he commits theft, inasmuch as he takes it dishonestly.
11. Again, if A, having pawned his watch to Z, takes it out of Z’s possession without Z’s consent, not having paid what he borrowed on the watch, he commits theft, though the watch is his own property inasmuch as he takes it dishonestly.
12. A takes an article belonging to Z out of Z’s possession without Z’s consent, with the intention of keeping it until he obtains money from Z as a reward for its restoration. Here A takes dishonestly; A has therefor committed theft.
13. A, being on friendly terms with Z, goes into Z’s library in Z’s absence, and takes away a book without Z’s express consent for the purpose merely of reading it, and with the intention of returning it. Here, it is probable that A may have conceived that he had Z’s implied consent to use Z’s book. If this was A’s impression, A has not committed theft.
14. A asks charity from Z’s wife. She gives A money, food and clothes, which A knows to belong to Z her husband. Here it is probable that A may conceive that Z’s wife is authorised to give away alms. If this was A’s impression, A has not committed theft.
15. A is the paramour of Z’s wife. She gives a valuable property, which A knows to belong to her husband Z, and to be such property as she has not authority from Z to give. If A takes the property dishonestly, he commits theft.
16. A, in good faith, believing property belonging to Z to be A’s own property, takes that property out of B’s possession. Here, as A does not take dishonestly, he does not commit theft.

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

Essential Ingredients of Theft:

In order to constitute theft five factors are essential:

1. Dishonest intention to take property;
2. The property must be movable;
3. The property should be taken out of the possession of another person;
4. The property should be taken without the consent of that person; and
5. There must be some moving of the property in order to accomplish the taking of it.

1. ‘Intending to take dishonestly : Intention is the gist of the offence. The intention to take dishonestly exists when the taker intends to cause wrongful gain to one person or wrongful loss to another person. Where, therefore, the accused acting bona fide in the interests of his employers finding a party of fishermen poaching on his master’s fisheries, took charge of the nets and retained possession of them, pending the orders of his employers, it was held that he was not guilty of theft.

When a person seizes cattle on the ground that they were trespassing on his land and causing damage to his crop or produce and gives out that he is taking them to the cattle pound, he commits no offence of theft, and however mistaken he may be about his right to that land or crop. He has no dishonest intention. Where a respectable person just pinches the cycle of another person, as his own cycle at the time was missing, and brings it back and the important element of criminal intention is completely absent and he did not intend by his act to cause wrongful gain to himself, it does not amount to theft.

The intention to take dishonestly must exist at the time of the moving of the property. The taking must be dishonest. It is not necessary that the taking must cause wrongful gain to the talker; it will suffice if it causes wrongful loss to the owner. Thus, where the accused took the complainant’s three cows against her will and distributed them among her creditors, he was found guilty of stealing.’ It makes no difference in the accused’s guilt that the act was not intended to procure any personal benefit to him.

• Taking need not be with intent to retain property permanently. It is not necessary that the taking should be permanent or with an intention to appropriate the thing taken. There may be theft without an intention to deprive the owner of the property permanently. Where the accused took out an Indian Air Force plane for an unauthorized flight, even temporarily, it was held that he was guilty of theft. It would satisfy the definition of theft if the accused takes away any movable property out of the possession of another person though he intended to return it later on. In the case of Pyare Lal 1963, The accused, who was working in a Government office , removed a file to his house , made it available to an outsider and then returned it to the office after two days. It was held by the Supreme Court that the accused was guilty of theft.

• Mistake.-When a person takes another man’s property believing under a mistake of fact and in ignorance of law, that he has a right to take it, he is not guilty of theft because there is no dishonest intention, even though he may cause wrongful loss.

• Taking back property lent on hire.- There was a hire-purchase agreement in respect of a vehicle. The custody of the vehicle was handed over to the hirer. The financier was to continue as the owner till the last instalment. The financier took back the vehicle for default in payments in accordance with the agreement. It was held that this did not amount to theft by the owner of his vehicle as the vital element of dishonest intention was lacking was held in the case of Charanjit Singh Chadha vs Sudhir Mehra 2001.

• Hire Purchase.- When hirer himself committed default by not paying the instalments and under the agreement, the appellants have repossessed the vehicle, the respondent-hirer cannot have any grievance as the vital element of dishonest intention’ is lacking. The element of ‘dishonest intention’ which is an essential element to constitute the offence of theft cannot be attributed to a person exercising his right under an agreement entered into between the parties as he may not have an intention of causing wrongful gain or to cause wrongful loss to the hirer.” it was held in the case of Charanjit Singh Chadha vs Sudhir Mehra 2001.

• Movable property’: Explanations I and 2 state that things attached to the land may become movable property by severance from the earth, and that the act of severance may of itself be theft Thus, the thief who severs and carries away is put in exactly the same position as if he carried away what had previously been severed. A sale of trees belonging to others and not cut down at the time of sale does not constitute theft. But removal of a man’s trees that had been blown down by a storm amount to theft.  It is not necessary that the thing stolen must have some appreciable value.

• Earth and stones. -Cart-loads of earth or stones? quarried and carried away from the land of another are subject of theft.
• Timber :Extraction of teak timber without licence amounts to theft of Government timber.

In Bhaiyalal v State of MP 1993, it was held that the act of cutting of trees standing on Government land amounts to theft under section 378.

• Salt.- Salt spontaneously formed on the surface of a swamp appropriated by Government, or in a creek under the supervision of Government, is subject of theft; but not that which is formed on a swamp not guarded by Government.
• Human body : Human body whether living or dead (except bodies, or portions thereof, or mummies, preserved in museums or scientific institutions) is not movable property.
• Idol : Idol is movable property and can be the subject matter of theft. It’s being a juridical person for certain purposes is no bar to its also being a movable property.
• Gas. -A, having contracted with a gas company to consume gas and pay according to meter, in order to avoid paying for the full quantity of gas consumed, introduced into the entrance pipe another pipe for the purpose of conveying the gas to the exit pipe of the meter and so to the burners, for consumption without passing through the meter itself. The entrance pipe was the property of A, but he had not by his contract any interest in the gas until it passed through the meter. It was held that A was guilty of larceny in the case of White vs White .
• Electricity: – Theft of electricity is governed by section 135 of the Electricity Act, 2003. Though the electricity is not movable property within the meaning of section 378, IPC, 1860, and as such its dishonest abstraction cannot be regarded as theft under section 378, yet by a legal fiction created by section of the Indian Electricity Act, 1910, such an act should be deemed to be an offence of theft and punished under section 379 IPC, 1860.
• Water. -Water supplied by a water company to a consumer, and standing in his pipes, may be the subject of larceny. Water when conveyed in pipes and so reduced into possession can be the subject of theft; but not water running freely from a river through an open channel made and maintained by a person.
• Animals. -Bull. -A bull dedicated to an idol and allowed to roam at large is not res nullius (thing belonging to no one) but remains the property of the trustees of the temple, and can become the subject of theft;4 but not a bull set at large in accordance with a religious usage.
• Peacock. A peacock tamed but not kept in confinement is the subject of theft. So is the case with pigeons kept in a dovecote and partridges.
• Crop.–Removal of paddy crop has been held to be theft. Persons who helped removal under directions as labourers were not guilty. The fact that the land was in the possession of the complainant and it was he who had grown the crop was held to be sufficient to negative the accused’s suggestion that he removed the crop under a bona fide belief that he was entitled to it .
• Ballot Paper -Accused was allegedly found in possession of a bundle (s4 stolen postal ballot papers at gate of printing press. High Court rejected the plea of petitioner in the case of Prafula Saika vs State of Assam 2012, that since he was found in possession of ballot papers, he ought not to have been fried for an offence under section 380 IPC, 1860,rather he could have been tried under section 127(p)(iv) of Assam Panchayat Act, 1994.
• ‘Out of the possession of any person: The property must be in the possession of the prosecutor. Thus, there can be no theft of wild animals, birds, or fish, while at large, but there can be a theft of tamed animals. It is sufficient if property is removed against his wish from the custody of a person who has an apparent title, or even color of right to such property. Transfer of possession of movable property without consent of the person in possession need not, however, be permanent or for a considerable length of time nor is it necessary that the property should be found in possession of the accused. Even a transient transfer of possession is sufficient to meet the requirement of this section.
• Consent : ‘Consent. The thing stolen must have been taken without the consent of the person in possession of it. Explanation 5 says that consent may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied. But consent given under improper circumstances will be of no avail. Consent obtained by a false representation which leads to a misconception of facts will not be a valid consent.

CASES.

A sought the aid of B with the intention of committing a theft of the property of B’s master. B, with the knowledge and consent of his master, and for the purpose of procuring A’s punishment, aided A in carrying out his object. It was held that as the property removed was so taken with the knowledge of the owner, theft was not committed, but A was guilty of abetment of theft.” Really speaking, the owner did not consent to the dishonest taking away of the property. He merely assisted the thief in carrying out the latter’s dishonest intention.

• ‘Moves that property.

The offence of theft is complete when there is dishonest moving of the property. The least removal of the thing taken from the place where it was before amounts to taking though it may not be carried off. It is not necessary that the property should be removed out of its owner’s reach or carried away from the place in which it was found.

Explanations 3 and 4 show how ‘moving could be effected in certain cases.

Illustrations (b) and (c) elucidate the meaning of explanation 4. Thus, where a guest took bed-sheets from the room with an intention to steal them and carried them to the hall but was apprehended before he could get out of the house, he was guilty of theft.

Cases. – In Venkatasami 1890, the accused an employee of the postal department while assisting in the sorting of letters, secreted two letters with the intention of handing them to delivery peon and sharing with him the money payable upon them. He was guilty of theft as well as of attempt to commit dishonest misappropriation of property.

In Bisakhi 1917 the accused cut the string which fastened a neck ornament to the complainant’s neck and forced the ends of the ornament slightly apart in order to remove the same from her neck with the result that in ensuing struggle between the accused and the complainant the ornament fell from her neck and was found on the bed later on. The accused was held guilty of theft as there has been in the eyes of law sufficient moving of the ornament to constitute theft.

A, at a railway station inserts counterfeit coins into an automatic machine and causes it to eject railway tickets which A and his friends B. C, and D make use of. Here A would be guilty of theft because he has dishonestly extracted tickets worth money value from a machine which was in the possession of Railway and B. C, and D would be liable under section 411 I.P.C. for receiving stolen property as they had used the tickets.

Husband and wife Hindu law: There is no presumption of law that husband and wife constitute one person in India for the purpose of criminal law. If the wife removes her husband’s property from his house with dishonest intention, she is guilty of theft. A Hindu woman who removes from the possession of her husband and without his consent, her stridhan (woman’s property) cannot be convicted of theft because this species of property belongs to her absolutely. So also, a husband can be convicted if he steals his wife’s stridhan.

Where certain articles of movable property were in the joint possession of husband and wife, it was held that the husband who was alleged to have taken away the articles could not be held guilty of theft.

Necessitas induct privilegium quod jura privata. (“necessity induces a privilege because of a private right”) – No amount of necessity can justify an act of stealing.

Cases. –

In Vinod Samuel v. Delhi Administration 1991 , one Chandra Kala was travelling in a bus with her husband Trilokchand. When the bus stopped at Patel Nagar bus stand, one person came from opposite direction, snatched the chain of Smt. Chandrakala who was sitting by the side of the window and ran away. She raised an alarm and her husband chased the culprit. With the help of two others, Guru Dharshan Singh and Harjit Singh, he was overtaken and caught. The gold chain was not recovered. Nobody had seen the person who snatched the chain. The only reason why the appellant was apprehended was that he was seen running after the bus stopped at the bus stand. Nobody saw the appellant dropping the chain while he was being chased.

It was held that the appellant cannot be held guilty of theft. Merely because for some reason he was seen running or walking briskly after the incident it does not follow that he was the culprit although a strong suspicion may arise against him.

COMPARISON BETWEEN THEFT, EXTORTION ROBBERY AND DACOITY

Theft: S. 378 Extortion: S. 383, Robbery: S. 390, Dacoity: S. 391