Law and You > Criminal Laws > Indian Penal Code > Theft and Punishment for It (Ss. 378 and 379 IPC)
Theft is a criminal offense under the Indian Penal Code (IPC) and involves taking someone else’s movable property without their consent with a dishonest intention. Several elements must be present for an act to be considered theft under the IPC. Section 378 IPC defines the offence of theft. Section 379 specifies punishment for theft.
Theft:
Section 378: Definition of 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.
Explanations of Section 378:
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 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 of Article 378
(a) 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.
(b) A puts a bait for dogs in his pocket, and thus induces Z’s dog to follow it. Here, if A’s intention is 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.
(c) 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
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) 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 in as much as he takes it dishonestly.
(l) 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.
(m) 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.
(n) A asks charity from Z’s wife. She gives 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 authorized to give away alms. If this was A’s impression, A has not committed theft.
(o) 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.
(p) 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.
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.
Ingredients of Theft:
The five main ingredients of theft are as follows:
Dishonest intention to take property:
If we study the illustrations given with Section 378 in the Act, 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.
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)
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.
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)
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 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.
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.
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.
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.
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. (Property was in possession of Z)
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. (Property was not in anybody’s possession)
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.
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.
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. (here there is no consent)
If A is the paramour of Z’s wife and 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. (As consent of the husband is required)
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.
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.
There should be the taking of the property:
The property under theft should move.
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.
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.
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.
What Prosecution Should Prove?
- There was a movable property
- The movable property under discussion is in possession of a person other than the accused;
- There was an intention to move and take some movable property;
- The accused moved and took out the property out of possession of the possessor.
- The accused did it dishonestly to obtain wrongful gain to himself or wrongful loss to another.
- The property was moved and took out without the consent from the possessor.
Section 379: Punishment for Theft
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.
Classification of Offence:
The offence under this Section is cognizable, non-bailable, compoundable and triable by any magistrate. The offence is compoundable at the instance of the owner of the property.
Section 379 gives provision for the punishment for the offence of theft. It 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.
Note that the phrase “may extend to three years, or with fine, or with both”. It means the accused if convicted can be set free by paying only fine and if imprisonment (simple) is ordered then it can be less than 3 years also. Maximum of three years simple imprisonment can be awarded.
Conclusion:
According to section 378 of Indian penal code, 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. The offence of theft is punishable with imprisonment of either description which may extend to 3 years, with fine, or both according to the Indian Penal Code. The offence of theft, though cognizable and non-bailable, is compoundable (where the accused and the victim can enter into a compromise to drop charges against the accused). According to the criminal jurisprudence, where the offence is compoundable then generally it cannot be termed as a serious offence. The seriousness and gravity of an offence can also be assessed by the fact and circumstances involved in any incidence of crime.