Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Chapter XVII > Theft under BNS (S. 303)

Theft, a fundamental concept in criminal law, is defined and penalized under Section 303 of the Bharatiya Nyaya Sanhita, 2023 (BNS). It is one of the most common crimes, reflecting the unlawful taking of another person’s property with the intention of permanently depriving them of it. The BNS provides a comprehensive framework for understanding theft, outlining its essential elements, legal implications, and the punishment prescribed for offenders. This article delves into the definition, key components, types of theft, and the legal procedures involved, offering a clear insight into how theft is addressed within the Indian legal system. Understanding theft under BNS not only helps in comprehending the legal boundaries of property rights but also highlights the importance of safeguarding individual and societal interests.

Comparative Study BNS and IPC

Bharatiya Nyaya Sanhita, 2023	Indian Penal Code, 1860	Change
S. 303(1)	S. 378	IPC section is included as sub section. “Definition” is replaced by “Section” in explanation 5.
S. 303(2)	S. 379	Punishment for subsequent convictions is added

Section 303:

Definition of Theft (S. 303(1))

(1) 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 affects 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 this section 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.

Punishment of Theft (S. 303(2))

(2) 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 and in case of second or subsequent conviction of any person under this section, he shall be punished with rigorous imprisonment for a term which shall not be less than one year but which may extend to five years and with fine:

Provided that in cases of theft where the value of the stolen property is less than five thousand rupees, and a person is convicted for the first time, shall upon return of the value of property or restoration of the stolen property, shall be punished with community service.

Essential Ingredients of Theft S. 303(1):

• Dishonest intention to take property;
• The property must be movable;
• The Property should be taken out of possession of another person;
• It should be taken without consent of that person; and
• There should be the taking of the property.

Ingredient 1: Dishonest intention to take property:

If we study the illustrations given with Section 303 BSA, we can be sure that the dishonest intention of the offender is the main ingredient of the offence of the theft. Intention to take dishonestly exists when the taker intends to cause wrongful gain to one person or wrongful loss to another person. Thus prosecution should prove that the accused had acted dishonesty and where circumstances show that the property has been removed in the asser­tion of a bona fide claim or right, it is not theft.

• Illustration (d) attached to Section 303(1): 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. (dishonest intention)
• Illustration (e) attached to Section 303(1): Z, going on a journey, entrusts his plate to A, the keeper of the 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.
• Illustration (f) attached to Section 303(1): 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. (dishonest intention)
• Illustration (g) attached to Section 303(1): A finds a ring lying on the high road, not in the possession of any person. A by taking it, commits no theft, though he may commit criminal misappropriation of property.
• Illustration (l) attached to Section 303(1): 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 therefore committed theft.
• Illustration (m) attached to Section 303(1): 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.
• Illustration (p) attached to Section 303(1): A, in good faith, believing property belonging to Z to be A’s own property, takes that property out of Z’s possession. Here, as A does not take dishonestly, he does not commit theft.

Examples:

• Where a postal clerk who was in charge of receiving parcels and other mail was accused of having committed theft of a parcel of imitation stones, it was held that as the accused had got the parcel by lawful means and there was no taking he could not be convicted of theft.
• Where the complainant’s (ex-student’s) bag was removed from him and handed over to the Principal by another student and suspecting that the bag might contain some objectionable leaflets, the Principal informed the complainant’s father that the bag was in his possession but instead of returning the bag to the complainant, it was handed over to the police station, it was held that there was no dishonest intention in refusing to return it and the entire proceedings were liable to be quashed.

In Nobin Chunder Holder, (1866) 6 WR (Cr) 79 case, the accused in honest interest of his owner found some outside fishermen poaching on his master’s fisheries. He Took charge of their nets and kept in his possession. The Court held that his intention was to protect the interest of his master and not to do theft of the nets of the fishermen.

In Ramratan v. State of Bihar, AIR 1965 SC 926 case, the Court held that when a person seizes cattle on the ground that they were trespassing on his land and causing damage to his crop. He has right of land and crop. Hence seizing of the cattle is not a theft.

In Shriram v. Thakurdas, 1978 CrLJ 715, case, an unauthorized structure was demolished by Chief Officer of Municipal Corporation of Mumbai. He and overseer and others were accused of theft of the debris formed. The Court held that they removed debris without intention to cause wrongful gain. Hence it is not a theft.

Emp. V. Sitabai (1930) 32 Bombay L.R. 1140, case, the owner of a barge sold it to complainant and received part of the sales price as earnest money. Even though the buyer was informed to pay remaining amount in stipulated time he failed to do so. The owner took the barge into her possession. She was charged with theft. Court held that it is not a theft since there is no dishonesty.

Ramcharan’s Case, (1898) 18 A.W.N.147 case, Ramcharan sold certain trees to X with complete knowledge that those trees belonged to C and X was not knowing it. The Court held that Ramcharan is liable for trial under offence of theft.

Ingredient 2: The property must be movable:

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. If the thing is severed from the earth and is moved without the consent of the possessor may be a theft. 

• Illustration (a) attached to Section 303(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.
• Illustration (b) attached to Section 303(1): 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.
• Illustration (c) attached to Section 303(1): 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.
• Illustration (d) attached to Section 303(1): 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. (dishonest intention)
• Illustration (e) attached to Section 303(1): Z, going on a journey, entrusts his plate to A, the keeper of the 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.
• Illustration (f) attached to Section 303(1): 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.

Examples:

• Where the owner of bullocks had lost them and could not find them on search and the bullocks were found in the possession of the accused, it was held that they could not be convicted of theft but of criminal misappropriation.
• Where the accused removed some bricks from a heap which had been left lying for eight years. An assumption could be made that the bricks had been abandoned and their removal under the circumstances did not constitute theft.
• The appellant was convicted of having cut away and removed branches of a tree belonging to the complainant. The complainant however failed to prove ownership of the land over which the tree stood nor could he explain his delay in filing the complaint. In these circumstances the court refused to uphold that it was a case of theft and quashed the order of conviction.

In Balos (1882) 1 Weir 419 case, The Court held that a sale of trees belonging to others and not cut down at the time of sale does not constitute theft.

In State of Himachal Pradesh v. Prem Singh, (1989) 3 Crimes 12 (15) case, the prosecution proved that the Government is the owner of the forest and the trees were cut down by the accused. The Court held that it is a theft.

In Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094, case, the Court held that temporary removal of an office file from the office of a Chief Engineer and making it available to a private person for a day or two amounts to the offence of theft.

In P.T. Rajan Babu  v. Anitha Chandra Babu, 2011 CrLJ 4541 (Ker) case the question before the court was Could a person who removes standing timber from the property in his possession even after the civil court has declared title of the complainant and allowed him to recover possession of the said property be charged with the offence of ‘theft’. The Court held that the possession in Section 378 means actual physical possession.

Ingredient 3: The Property should be taken out of possession of another person:

The property must be in the possession of another person from where it is removed. There is no theft of wild animals, birds or fish while at large, but there is a theft of tamed animals. A finds a ring lying on the high road not in the possession of any person. A, by taking it commas no theft, though he may commit criminal misappropriation of prop­erty.

• Illustration (b) attached to Section 303(1): 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.
• Illustration (g) attached to Section 303(1): A finds a ring lying on the high road, not in the possession of any person. A by taking it, commits no theft, though he may commit criminal misappropriation of property.

In Hoseenee v. Rajkrishna, (1873) 20 WR (Cr) 80, case the Court held that the property moved by theft must be in the possession of the prosecutor. Thus there cannot be theft of wild animals, birds, or fish while at large, but there can be a theft of tamed animals. Similarly, where the property is dishonestly taken belong to a dead person and hence there is no one in possession of such property or it is lost property without any apparent possessor, then it is not a theft.

In State of Maharashtra v. Vishwanath, AIR 1979 SC 1825 case, the Court held that the transfer of possession of a movable property without the consent of the person in possession need not, however, be permanent or for considerable length of time nor is it necessary that the property should be found in possession of the accused. Even a transient transfer is sufficient to meet the requirement of Section 378.

Ingredient 4: It should be taken without consent of that person:

If there is consent of possessor to move the property then it is not a theft. The con­sent may be express or implied and may be given either of the person in possession, or by any person having for that purpose express or implied authority.

• Illustration (d) attached to Section 303(1): 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. (dishonest intention)
• Illustration (k) attached to Section 303(1): 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 in as much as he takes it dishonestly.
• Illustration (m) attached to Section 303(1): 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.
• Illustration (n) attached to Section 303(1): 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.
• Illustration (o) attached to Section 303(1): 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 no authority from Z to give. If A takes the property dishonestly, he commits theft.

In K. N. Mehera v. State of Rajasthan, AIR 1957 SC 369, case, the Court held that Absence of the person’s consent at the time of moving and the presence of dishonest intention in so taking at the time of moving and the presence of dishonest intention in so taking at the time are essential ingredients of theft.

Ingredient 5: There should be the taking of the property:

The property under theft should move.

• Illustration (b) attached to Section 303(1): 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.
• Illustration (c) attached to Section 303(1): 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.
• Illustration (h) attached to Section 303(1): 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.
• Illustration (i) attached to Section 303(1): A delivers his watch to Z, a jeweler, to be regulated. Z carries it to his shop. A, not owing to the jeweler any debt for which the jeweler 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, in as much as what he did was not done dishonestly.
• Illustration (j) attached to Section 303(1): 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, in as much as he takes it dishonestly.

Examples:

• A, who having taken of the sheets from his bed with intent to steal them carried them into the hall and was apprehended before he could get out of the house was adjudged guilty of larceny.
• A, who having taken a horse in a close with intent to steal and was apprehended before he could get it out of the close was held guilty of theft.
• A, who intending to steal plate, took it out of the trunk wherein it was, and laid it on the floor but was surprised before he could remove it any further, was guilty of theft.
• Pulling wool from the bodies of live sheep and lambs amounts to theft under Section 378 IPC.

Punishment for Theft (S. 303(2)):

• 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 and in case of second or subsequent conviction of any person under this section, he shall be punished with rigorous imprisonment for a term which shall not be less than one year but which may extend to five years and with fine
• In cases of theft where the value of the stolen property is less than five thousand rupees, and a person is convicted for the first time, shall upon return of the value of property or restoration of the stolen property, shall be punished with community service.

Classification of Offence:

The offence under this Section is cognizable, non-bailable, and triable by any magistrate.

In Gopal Chauhan v. Satya, 1979 ell LJ 446 (HP) case, the Court held that letters addressed to the complainant are taken away without consent by the accused from the possession of the complainant, the requirements of Section 380 are satisfied and it is of no significance that both parties were resident in the same house.

Theft as Petty Organised Crime under S. 112 BNS:

Petty Organized Crime

(1) Whoever, being a member of a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers or any other similar criminal act, is said to commit petty organised crime.

Explanation:

For the purposes of this sub-section “theft” includes trick theft, theft from vehicle, dwelling house or business premises, cargo theft, pick pocketing, theft through card skimming, shoplifting and theft of Automated Teller Machine.

(2) Whoever commits any petty organised crime shall be punished with imprisonment for a term which shall not be less than one year but which may extend to seven years, and shall also be liable to fine.

Punishment:

For offence under this Section, punishment is imprisonment for a term which shall not be less than one year but which may extend to seven years, and shall also be liable to fine.

Classification of Offence:

Offence under this Section is Cognizable, Non-bailable, triable by the Magistrate of the first class.

Vehicle theft as Organized Crime under S. 111(2)(b):

Who commits vehicle theft as organized crime, be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees.

Offence is Cognizable, Non-Bailable and triable by Court of Session

Conclusion:

In conclusion, theft, as defined under Section 303 of the Bharatiya Nyaya Sanhita, 2023, is a serious offense that undermines the principles of trust, security, and property rights in society. The BNS provides a comprehensive framework for addressing theft, outlining the essential elements required to establish the crime, including the unlawful taking of property with the intent to permanently deprive the owner of it. The law also incorporates specific provisions to deal with aggravated forms of theft, such as theft by a servant or in a place of worship, which carry stricter penalties. Furthermore, the BNS emphasizes the importance of intent, as the motive behind the act plays a crucial role in determining the nature of the crime. The legal system aims to balance the interests of victims and the accused, ensuring justice through fair trials and evidence-based judgments.

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