By- Shikher Badial
For the protection of a person as an individual and their property, the regulation of the administration is mandatory. 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. [Section 378 of IPC]
In P.T RAJAN BABU V. ANITHA CHANDRA BABU, 2011 CrLJ 4541, the Court held that the possession in Section 378 means actual physical possession.
ESSENTIALS OF THEFT
- Dishonest intention: Through the illustrations of Section 378 of the Act, it can be concluded that the dishonest intention of the offender is essential in the offence of the theft. Dishonesty is defined under Section 24 of IPC which means the intention of wrongful gain or wrongful loss. It must be proved by the prosecution that the accused had acted dishonestly. If circumstances show that the property was removed in the assertion of a bona fide claim of right, it is no theft. In NOBIN CHUNDER HOLDER, (1866) 6 WR (Cr) 79, the accused in the honest interest of his owner took the charge of nets of the fishermen poaching on his master’s fisheries. The Court held there was no dishonest intention as he did so to protect the interest of his master. The intention was not to do theft of the nets of the fishermen.
- Movable Property: A thing is not the subject of the theft so long as it is attached to the earth, not being movable property. It is impossible to take immovable property away and only movable property can be stolen. To be a subject of theft, a thing attached to the earth must be severed from the earth and if the same is moved without the consent of the possessor may be a theft. Section 22 of IPC defines the term “Movable Property” as any corporeal property except land and things permanently attached to the earth. Data being intangible is incorporeal and not covered under the definition of theft given in Section 378 of IPC however, stealing of data stored in hard drive, pen drive or any tangible object will be covered under this Section.
- Property in possession: The property being under theft must be in the possession of another person from where it is removed. If there is no possession of the property then it cannot be said to be a stolen property. For example; ‘A’ finds a gold ring lying on the road, which was in possession of any person. If ‘A’ takes it, then he commits no theft. There cannot be a theft of wild animals, birds, or fish but there can be a theft of tamed animals [HOSEEMEE V. RAJKRISHNA, (1873) 20 WR Cr) 80]. It’s not necessary that the transfer of possession of a movable property be permanent or for a considerable length of time nor it is necessary that the property should be found in possession of the accused. To meet the requirement of Section 378 of IPC, even a transient transfer is a sufficient [STATE OF MAHARASHTRA V. VISHWANATH, AIR 1979 SC 1825].
- Consent: If the property in question is moved with the consent of possessor then it is not a theft and the consent may be express or implied. The consent must be free from any means of coercion or fear of injury or misrepresentation of facts. The consent will not be considered valid if it is given by an unsound person or given during the state of drunkenness or intoxication. The absence of a person’s consent at the time of moving property, and the presence of dishonest intention on the part of the person moving the property, will constitute a theft [K.N.MEHERA V. STATE OF RAJASTHAN, AIR 1957 SC 369].
- Taking of the property: The property under theft should be moved. If ‘A’ meets a bullock carrying a box of treasure, and he drives the same in a certain direction to take the treasure dishonestly. ‘A’ has committed theft of the treasure as soon as the bullock begins to move.
READ ALSO: OVERVIEW OF SECTION 354(3) CRPC WITH REFERENCE TO THE CASE BALWANT SINGH VS. STATE OF PUNJAB
THEFT IN DWELLING HOUSE [ Section 380 of IPC]
A building or a vessel which is being used by a person for living or remains there permanently or even temporarily is known as Dwelling House. A waiting room at railway station is a building which is used for human dwelling and theft of articles from the roof of a house can fall under the section.
THEFT BY CLERK OR SERVANT OF PROPERTY IN POSSESSION OF MASTER[ Section 381 of IPC]
When any property in the possession of the master or employer is stolen by a clerk or servant. or being employed in the capacity of a clear or servant, will be punished with an imprisonment of either description for a term which may extend to seven years, and will also be liable to fine.
THEFT AFTER PREPARATION MADE FOR CAUSING DEATH, HURT OR RESTRAINT IN ORDER TO THE COMMITTING OF THE THEFT [Section 381 of IPC]
Any person who commits theft after having made preparations for death, hurt, or restraint or fear of the death, hurt, or restraint for the purposes of such theft or for escape or retaining such property shall be punished with rigorous imprisonment for a term which can extend to ten years, and the person will also be liable to fine.
PUNISHMENT FOR THEFT
Provision for the punishment of theft is given under Section 379 of IPC which says, “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. The offence under this section is non-bailable, cognizable, and triable by any magistrate.