Supreet Kaur
Theft is a very common crime. Theft means taking away someone’s property without the permission of real owner or possessor. The theft can be of money or any other movable property. The person who commits theft is called a thief.
Elements of theft
To commit a theft, following two conditions must be fulfilled.
1. Actus Reus: It means actually taking away the property without the permission of possessor.
2. Mens Rea: While the property is being taken away, there must be intention to steal that or a mala fide intention to deprive the real owner of that property.
These two essentials must coexist.
- If A has thought that he will steal B’s car, but he never dares to do so, there is only mens rea not actus reus, so theft is not committed.
- Similarly, if one takes other’s property to use it for some time and to return it as soon as possible, there is only actus reus not mens rea, this again is not theft.
- Taking away someone’s property by mistake is not theft as intention to steal is not there.
Legal provisions for theft under Indian Penal Code:
Indian Penal Code, 1860 contains provisions for offences against property and theft is one of the offences against property. Other offences against property are Robbery, Dacoity, Extortion etc.
Section 378 to 381 of IPC, 1860 deals with theft.
378. Theft. —Whoever, intending to take dishonestly any moveable 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 are:
Movable property: The theft is an offence against the movable property. It means there can’t be theft of land, house etc. Also, the things attached to the land cannot be stolen but if someone severe it from the land and then move it, it is theft. For example a safe (locker) in almirah is detached by the burglar, it is made movable by the thief, it amounts to theft.
Property in the possession of other: It doesn’t matter that who is the real owner, the person in possession of that property is considered its owner for the time being. A purse lying on road us taken up by someone does not amount to theft as it is in possession of no one. Taking this into consideration, it can be said that a person can commit theft of his own property.
In Hoseenee v. Ramkrishna[1]: It was held that the property must be in the possession of someone. If a property belonging to a dead person without any actual possessor, is stolen, it is not theft.
Without consent: The consent can be expressed or implied. It is the important factor which determines whether the act amounts to theft or not.
Criminal intention: There must be a dishonest intention on the part of accused. If there is no such intention, it does not amount to theft. If the intention is to protect one’s own interest, it is not theft.
Seizure of trespasser’s property is not theft.[2]
Moving the property: Unless the property is not displaced, it doesn’t amount to theft. Making an immovable property movable and then taking it away without consent of its possessor amounts to theft.
The moving of property need not be permanent[3],even removing the property for two days amount to offence. [4]
Section 379: Punishment of theft: The theft is punishable with imprisonment which may extend to three years with fine or both.
When theft is committed, the complaint is lodged under Section 379 which deals with punishment of theft not under Section 378 which merely defines theft. However, if the theft is committed by a person who belongs to a gang of robbers, thieves who habitually commit thefts, then the punishment is up to seven years along with fine.
However, the offence of theft is non – bailable, cognizable and compoundable at the instance of owner of the property.
Illustrations:
1.A thief enters a house to steal a television. He picks up the TV. While he was moving out of the house, he was seen by the neighbours. In chaos, he dropped the television and ran away. It is a theft although he failed in carrying the TV with himself, but he displaced the television with an intention to steal it, which is essential to constitute a theft.
2.A and B travelled in the same bus. While B was stepping out of the bus, his purse was left behind and A watched all the incident and took away the purse. This amounts to theft.
3.A purse is lying on road and is picked up by someone, it does not constitute theft, as there is no possessor of that property.
4. If X has left some gold in the custody of Y and Y run away with the gold without the consent of X, it amounts to theft since X’s consent was only for safe custody of the property.
5. A took away B’s watch with him without B’s consent. B came to know about it and he too took away his own watch from A’s house without his consent and then claims money from A for the loss of his watch with dishonest intention to gain advantage of the situation, B has committed theft of his own property since the consent of possessor is required.
Section 380: Theft in dwelling house, etc.—Whoever commits theft in any building, tent, or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
This Section talks about theft in dwelling houses and highlights the fact that it does not matter whether the house in which you are committing theft is occupied by the owner or a tenant, if it is used by any person for living or just for safe keeping, the former will be liable nonetheless.
Essentials of the above:
1.Theft in a dwelling house whether it a permanent home or a mere tent.
2.Theft in a house which is used for custody of property e.g., a godown.
A Railway waiting room is a dwelling place for the purpose of Section 380.[5]
Section 381: Theft by clerk or servant of property in possession of master. —Whoever, being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Since, under vicarious liability a master is made liable for his servant’s wrongful acts, this section clearly negates it and makes the servant or a clerk solely liable if he commits theft in relation to objects owned by his master or employer.
In Emperor v. Vallabhram:[6] It was held that the consent of person in possession of the property at the time of theft is required not that of real owner who has earlier given his consent.
Section 382: Section 382 provides for punishment for theft which is committed after making preparation for theft. For committing theft, the thief may carry some weapon with him, or he may be accompanied by other persons so to successfully commit theft without any restrain. This act is punishable with imprisonment which may extend to 10 years along with fine.
Illustration:
If Mohan carries a knife with him intentionally to remove any barriers(human or non-human) while he enters into a house to steal jewellery, he will be liable under Section 382.
Companionship in theft
Ganga v. The State[7] : In this case, one Latif picked up the pocket of one Mathur at railway station and then handed over the purse to Ganga. Both Latif and Ganga were immediately chased by Mr Mathur and were subsequently arrested. On finding the purse was found with Ganga. The Court held that if the stolen property is handed over to the companion immediately at the time of theft, it is well established that the companion, in this case, Ganga, shared the intent of committing theft with the actual thief. So, he would be equally convicted under Section 379 of Indian Penal Code, 1860.
Other Forms of Theft
Robbery: It is an aggravated form of theft. If while committing theft, a person causes or attempts to cause injury, death or fear of injury, death to other person, it is Robbery. So, force is essential ingredient in Robbery which is missing in theft.
Dacoity: Dacoity is a robbery or attempt to commit robbery by at least five persons. So, to constitute dacoity, involvement of at least five persons is required whereas theft can be committed by one person alone.
Conclusion
Legal provisions under Indian Penal Code, 1860, for theft have classified theft. For simple theft, the punishment is up to 3 year, but the punishment is severe depending upon the place of theft i.e. if the theft is committed in a dwelling house the punishment may extend to seven years.
Moreover, if a person who is given the duty to protect that property or in whom the owner reposes trust, takes away the property without the consent of its owner, he is also liable to punishment which may extend to seven years. Despite this severe punishment, theft continues to be a common crime.
It usually takes place at crowded public places like railway station, bus stands, etc. where it is difficult to identify the thief. Moreover, small thefts are usually not reported by the people since they do not have any hope that their property would ever come to them back. So, what can be done at individual level is to be careful and to report the theft as soon as possible.
- 1873 20 WR (Cr) 80 ↑
- Ramratan v. State of Bihar AIR 1965 SC 926 ↑
- K.N. Mehra v. State of Rajasthan AIR 1957 S.C. 369 ↑
- Pyare Lal Bhargava v. State of Rajasthan AIR 1963 SC 1094 ↑
- State of Punjab v. Nihal Singh (1971) 73 Punj. LR 440 ↑
- 1925 Bom. 122 ↑
- AIR 1957 All 678 Cri LJ 1060 ↑
