Law and order in the society are very important. It is necessary not only to protect the individual of the society but also, his property. For the protection of an individual and his property, the laws provided by the Parliament, the bodies responsible for the protection i.e. police and the judicial system plays an important role. The various offences such as theft, extortion, robbery, dacoity, misappropriation of property, etc are offences affecting the property.It is one of the offences which affect the property of an individual. This article explores the legal provisions related to theft and its punishment along with cases.
Theft is a criminal act in which the property of a person is taken from him without his consent. The provision of theft has been covered under the Chapter XVII of the Indian Penal Code, 1860 which states the offences against property. Section 378 to 382 of the Indian Penal Code, 1860 provides the provision for theft and its punishment.
The concept of theft works on the principle of the legal maxim “Necessitas inducit privilegium quo ad jura privata” which means that no amount of necessity can justify an act of stealing. For example, if a person needs food and he steals it so that he could relieve his necessity, no such excuse has been allowed by law.
Section 378 defines theft. A person who takes away the movable property of any other person from his possession with a dishonest intention and without the consent of the person, the person taking away the property is said to commit theft.
The basic ingredients of theft are as follows:
The intention is an integral part of the offence of theft. The intention has to be dishonest and has to be in existence at the time of taking the property. The illustration (d) of Section 378 explains that if ‘A’ being the servant of ‘Z’ with the dishonest intention takes away the plate which Z entrusted in him, without the consent of Z, then A is said to have committed theft.
To constitute the offence of theft, the taking of property can be for either temporary purpose or permanent purpose. In the case of Pyarelal1, the accused who was a worker in a government office took a file from the office and made it available to an outsider and then, kept it in the office after two days. The court held him guilty of theft.
When a person in good faith or by mistake of fact takes away the property of another person, then he is not guilty of theft due to the absence of dishonest intention. If a person acting in good faith takes a thing believing it to be his property, then it is not theft.
Stealing of one’s own property also comes under the ambit of Section 378. The illustration (j) of the section refers that ‘A’ has given his watch to ‘Z’ for repairing and ‘Z’ retains the watch lawfully as a security of his debt. ‘A’ takes the watch from the possession of ‘Z’ with dishonest intention of depriving of the debt, here ‘A’ commits theft.
Property to be movable
The movable property is only the subject matter of theft under the provision of Section 378. The explanation 1 of the section denotes the meaning of immovable property. A thing which is attached to earth is an immovable property and is not the subject matter of theft. But, if the property is severed from the earth, it becomes the subject matter of theft. The act of severance is theft. The illustration (a) of Section 378 explains that if ‘A’ cuts the tree on Z’s ground to dishonestly take it out of the possession of Z without his consent, then A is said to have committed theft. The moment when the tree was severed, it became the subject matter of thef.
In the case of Bhaiyalal v. State of Madhya Pradesh2, the act of cutting trees which are on the government land is under the purview of theft.
There is no requirement that the thing stolen should have some appreciable value. Few cases which can amount to theft under Section 378 are as follows:
- Salt formed on the surface of swamp which is under the supervision of government is subject of theft. But, in cases, where the salt is formed on the surface of the swamp is not under the supervision of the government, it will not be a subject matter of theft.
- Idol is the movable property and is a subject matter of theft.
- Stones carried away from the land of another are also a subject matter of theft.
- Cooking gas passing through the pipeline is the movable property and is a subject matter of theft.
- Water supplied by a water company and conveyed in pipes is a subject matter of theft. But, the water running freely from the river through an open channel is not the subject matter of theft.
- A bull dedicated to the idol and allowed to roam is considered to be in the possession of trustees of temple and is the subject matter of theft.
- The tamed animals are the subject matter of theft.
- The removal of paddy crops also is a subject matter of theft.
An interesting question that always arises is whether ‘Stealing of Electricity’ comes under the purview of Section 378 of Indian Penal Code, 1860. The answer to this is that theft of electricity is governed by Section 135 of the Electricity Act, 2003.
The property must be taken from the possession of another person
The property must be in the possession. The property can be in possession in two ways i.e. ownership or in possession in some other manner. A person is said to be in the possession of a movable property when the person has the power to deal with it as an owner to the exclusion of all other persons. Mere physical control of a person over a thing is sufficient to constitute possession.
In the cases of joint owners, if anyone of them dishonestly takes exclusive possession, then he has committed theft.
It is possible of the tamed animals but not of wild animals. In the case of ‘Perumal3’, the animals in reserve forest are not capable of possession, till they are tamed and bought to the custody of person or government. If such animals are not bought by the government and tamed, they cannot be said to be in the possession of the government and persons who remove them cannot be convicted of the offence of thft.
The property taken is without the consent
It is an ingredient of theft that the person is said to commit a theft when he takes away the property from the possession of another person without his consent. Consent has to be valid consent. A consent obtained by misrepresentation is not valid consent. The explanation 5 of Section 378 denotes the meaning of consent. The consent can be in expressed or implied terms and it may be either given by the person in possession of the thing or by any person who is having proper authority to the thing. The proper authority may be either in expressed or implied terms.
In cases of unauthorized consent, the act of taking away property amounts to theft. In the case of ‘Hammanta4’, wood was removed from a forest without the payment of fees but the consent of the Forest Inspector was taken. The court held that the act of removing wood amounts to theft because the consent was unauthorized.
Moving of property
The offence of theft becomes complete when the property is moved dishonestly. When a person removes the obstacle which prevented him to move the thing or separated it from the other thing, it is said that person has caused a thing to move. The explanation 3 of this section states three modes of moving of property i.e. by actual moving, by removing an obstacle which prevented him to move the thing and by separating it from the other thing.
Explanation 4 of Section 378 explains when a person moves an animal by any means, he also moves the things, which is the consequence of motion, is moved by the animal.
THEFT IN CASE OF HUSBAND AND WIFE
In both Hindu law as well as Mohammedan Law, the husband and wife are not considered as one person in the criminal law. If a wife removes any property belonging to her husband with dishonest intention, it comes within the purview of theft. In the same way, the husband can also be held guilty of theft for removing any property of the wife with dishonest intention. Stridhan also comes in the ambit of wife property.
PUNISHMENT FOR THEFT
Section 379 of the Indian Penal Code, 1860 provides for the punishment of theft. The person who commits theft shall be punished with the imprisonment of a term which may extend to three years or with fine or both. Section 379 of Indian Penal Code is a compoundable offence under ‘Section 320 of Code of Criminal Procedure, 1973’.
There are other sections relating to the punishment of theft i.e. Section 380, 381 and 382 of Indian Penal Code, 1860.
Section 380 provides that if a person commits a theft in any building, tenant or vessel which is being used as a human dwelling or for keeping the property, then such a person shall be punished with imprisonment of the term that may extend to seven years and fine.
Section 381 provides that if a clerk or servant commits a theft in the property of the master, then clerk or servant shall be punished with imprisonment of a term that may extend to seven years and fine.
Section 382 provides that if a person commits theft after preparation for causing death, hurt or restraint or fear of death, restraint and hurt, such a person shall be punished with rigorous imprisonment for a term which may extend to ten years and fine.
The offences affecting property as well as life or human body are increasing day by day. Theft is also an offence which is reported every day in society. Education is the most powerful tool which can help inculcate good values in the people and the rate of crime may be reduced.
1 A.I.R 1963 S.C. 1094
2 1993 Cr L J 29 (MP)
3 (1995) Mad 795
4 (1877) 1 Bom 610
- Ratanlal & Dhirajlal: The Indian Penal Code (PB) 36th Edition, 2020 Lexis Nexis
- N. Mishra: The Indian Penal Code, Central Law Publications, 2017
This blog is written by Jyotsna Singh, Banasthali Vidyapith
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