Theft Under IPC

Theft Under IPC

Author : Ashish Nagpal

In criminal law, theft also known as ‘stealing’ is the unknown taking of someone else’s property without that person’s freely given consent. It is defined under Section 378 of IPC which says that , “Whoever intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property so as to such taking is claimed to commit theft.” As a term it is used as a shorthand for major crimes against property and encompassing offences like burglary, larceny, looting, trespassing, and shoplifting etc.in itself. In some jurisdictions, theft has been replaced by larceny.

Mens Rea

It is an important characteristic to define theft, The actus reus or guilty act in theft is usually defined as unauthorized taking possession of someone’s else goods which should further be accompanied by mens rea which is dishonesty and the intent to permanently deprive the owner or the person with rightful possession of that property or it’s use. Therefore mens rea is the basis for  theft.

Essential elements of Theft

There are certain elements without which the offence cannot be tried under the purview of theft. These elements are :-

1. The Property must be movable :- A movable property is something which is not attached to the earth Immovable property cannot be stolen  and it is only a subject to theft when it is removed from the surface of Earth. Taking of Wood from a protected forest is also a act of theft even if the trees are rooted to earth, to take wood they must be detached from the surface of the earth.

• Property must be taken away without the consent of such person :- The consent here may be express or implied and may be given either of the person in possession, or by the person having it for any purpose which can be express or implied authority. To understand this, we can look at the following illustration –

‘M’ on being friendly terms with ‘A’ goes into A’s library without A’s presence and takes away a book without A’s express consent for the purpose of mere reading it and with intention of returning it and hence it was probable that ‘M’ has conceived that he had A’s consent. Here M has not committed theft

• There must be a dishonest intention of person to take the property :- Another important aspect as to know if a person has committed theft or not is dishonest intention. However , intention is a mental element which is quite difficult to prove but circumstantial evidence are considered here for this purpose. The main measurement for which is to give wrongful loss to another person, then such act is considered to be done with dishonest intention

• There must be actual possession of property by the person committing theft :-  This means that the person accused of theft must have had the possession of the thing that he has been accused of. It does not necessarily mean that the accused must be having that thing with himself at the time he is charged, he or she can even be tried on the notion that he had returned the thing , mere dishonest intention is enough for trying this offence.

• Been taken away out of possession of another person :- It is another important characteristic, it means that the property must be in the possession of another person from where it was removed. Further there is no theft in taking of any wild animal but there is a theft when someone’s tamed animal is stolen.

Punishment for Theft

The punishment for theft is given under Section 379 and it states that whoever commits theft shall be punished with imprisonment of either description for a term which may extend to 3 years, or with fine or both.

Theft in Dwelling house, etc.

Theft in dwelling house is defined under section 380 of IPC, which is defined as “Whoever commits any offence in a vessel or a building which is used for human dwelling can be punished with imprisonment which could extend to 7 years , or fine or with both”

The word dwelling means a building tent, vessel in which a person lives whether permanently or temporarily. The main objective of this section is to provide greater security only to the property deposited in the house and not anything that may be related to the immovable property of the owner.

Theft by a clerk or servant of property in ownership of master

Theft by a clerk or servant of property in possession is defined under section 381 of IPC which is defined as,

“Whoever, being a clerk or servant, or is being employed within the capacity of a clerk or servant, commits any theft with respect to any property that is within the possession of his master or employer, shall be punished with imprisonment  for a term which may extend to 7 years and shall be also liable for a fine or with both of them”

The clerk or the servant here is the one who is given the possession of any goods by it’s true owner and he or she shall be liable for punishment as it is in the view of their confidence and this breach of confidence or trust if done by servant or clerk shall be punished severely.

Theft after preparation made for causing death, hurt or restraint so as to the committing of the theft

This is a grievous form of theft where the thief had already made preparations with the alter motive of causing grievous hurt or even death to anyone who may hinder him in his task. This is dealt under Section 382 IPC and this section summarizes that whoever commits theft and have made preparation for causing hurt, death or fear of death to retain the possession of property by such theft or in order to effecting his escape or aiding to his release from a place , shall be punished rigorously for a term which may extend to 10 years and also shall be liable to fine or with both.

Important case laws of theft

• In the case of Pyarelal Bhargava Vs State of M.P AIR  1963 , a govt. employee took a file from govt. office, presented it to another person ‘B’ and brought it to office after 2 days. The court held that permanent taking of property is not required, even a temporary movement of the property with dishonest intention is enough and thus it was theft.

• In the case of State of Maharashtra vs Vishwanath AIR 1979 SC 1825, the court held that transfer of possession of movable property without the consent of the person in possession need not necessarily be either permanent or temporary should be found in the possession of the accused. Even a transient transfer is sufficient to meet the requirement of Section 378.

• In case of Raja Mohammad vs Orion Glass Company AIR 1994,  The accused in this case was a chemical mixer in a glass factory and he moved 2000 glasses from 1 floor to another, when he was caught he argued that he did not take the property. The court in this case held that although glasses never moved from the factory but theft was committed when he moved glasses from one floor to another and he showed dishonest intention because his job was not to move those glasses. He was held liable for theft.

• Another case of Emp. Vs Sitabai 1930 Bombay 1140, case the owner of barge sold it to complainant and received part of sales as earnest money. Even though the buyer was informed to pay the stipulated amout he failed to do so. The owner then barged into her possession.Later she was charged with theft. The court held that it was not a case of theft a there is a absence of dishonesty.

• In landmark case of Munandu vs PP AIR 1972 HC 45 , The accused here was partially intoxicated and when he wanted to go home he took a bicycle not belonging to him to go home, Later at the trial he was told that it was a minor case and it would not affect his job and would be reprimand and he pleaded guilty but he lost his job and pension rights. He then appealed to higher authority and it was found out that he had been wrongly convicted as he did not knew what he was pleading to and his plea was further deemed to be unambiguous and unqualified. Lastly the main essence of theft , dishonest intention was not present and he was freed of all the charges

Conclusion

The offence of Theft with the growing unemployment is reaching to it’s new heights, with the youth having no jobs are motivated to do stealing as a means to earn their livelihood fast. The commission of Theft is a crime and therefore along side being a fast way to earn money can also being a fast way to reach the doors of the jail too. Behaving or prone to behave in an untrustworthy, deceitful, or an insincere way is nothing but dishonest and further  is one of the salient features to constitute theft. The crime of theft is the taking or moving of the property of other persons without their consent. Section 379 of IPC is an compoundable offence under section 320 of Code of Criminal Procedure,1973. Further returning stolen property or repayment of the value of stolen property is a defence for the charge of theft in some cases too. It was held by the Hon’ble Apex Court in the case of State of Karnataka v. Puttaraja (2004 (1) SCC 475).