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THE OFFENCE OF THEFT UNDER THE IPC

Author: This article is written by Kammate NATIGOU

*Author has written this article while pursuing training program on article

writing by indianlegalsolution.com

INTRODUCTION

The notion of theft is as old as the existence of man on earth. Theft is a

social phenomenon. Men always have this tendency to appropriate
something that does not belong to them; by one means or another. The
Indian lawmakers have not remained silent on this issue. Thus, in the Indian
Penal Code (IPC), the offence of theft is discussed. The offence of theft
falls under the ambit of offences against property in chapter 17 of the
Indian penal code.

In this article, we will discuss the definition of theft, the ingredients of theft,
the punishments provided as well as other forms of theft from section 378
to 382.

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DEFINITION AND MEANING OF THEFT

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Generally, we conceive the concept of theft as taking something that
belongs to another person. In this context, simply taking the property of
someone else without that person’s permission or consent is believed to be
theft. However, in a legal sphere, the IPC provides a clear and more
exhaustive definition of theft.

Section 378 of IPC defines theft. According to this section, whoever, Legal6
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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[1]. In other words, dishonestly
removing a movable property out of the possession of any person without
his/her consent, amounts to theft.

Furthermore, section 378 in its explanations makes it clear that as long as a

thing is attached to the earth, it is not a moveable property and cannot be
stolen. However, this thing becomes subject of theft as soon as it is cut off
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or severed from the earth. A moving effected by the same act which affects cameratojointhisgroup

the severance of the property from the earth may be theft. It also clarifies
that the consent mentioned in definition may be express or implied.

This section lays down certain specific requisites without which there
cannot be an offence of theft. Disclaimer
Disclaimer : The current Bar
INGREDIENTS OF THEFT Council Rules restrict the
information that legal
The essential requirements of theft are as follow: professionals may provide on
websites and prohibits soliciting of
1. Dishonest intention to take property clients. By visiting this website,
you acknowledge that you of your
2. The property must be movable
own accord wish to know more
3. The property should be taken out of the possession of another person about
4. The property should be taken without the consent of that person https://indianlegalsolution.com

5. There must be some moving of the property in order to accomplish the

taking of it [2].
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1. Dishonest intention We are looking for course
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As in any other crime, the intention is one of the basic ingredients in the Instructors.
constitution of the offence of theft. While committing the offence of theft,
the intention of the offender must be dishonest. Dishonest intention as per If you love teaching, get
connected with us at
section 24 of IPC means doing something with the intention of causing
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wrongful gain to one person or wrongful loss to another. Under section 23
of IPC, wrongful gain means to gain by unlawful means of property to which
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the person gaining is not legally entitled whereas wrongful loss means the
loss by unlawful means of property to which the person losing it is legally
entitled. The dishonest intention is in other words malafide intention. Taking
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another person’s property believing it to be one’s own does not amount to
theft.

In the case of M/s Shriram Transport finance co. Ltd. v. R. Khaishiullah Khan
[3], payment for a hire purchase agreement defaulted and the property was
seized and the court held that it would not constitute theft as the financer
was entitled to seize such property.

Also, in the case of Venkat Narayan v State, 1976 [4] of Andhra Pradesh,
the court held that if in any case, the dishonest intention is missing, then
such case does not amount to theft case. The dishonest intention must be
there in order to charge an accused guilty of the offence of theft. Ranked 4th Legal
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The property must be movable

The object of theft must be movable. Movable property according to

section 22 includes corporeal property of every description, except land
and things attached to the earth or permanently fastened to anything which
is attached to the earth. Immovable properties are not subject to theft; they
cannot be taken away. However, the explanation 2 of section 378 states
that immovable property as soon as it is severed or cut off from the earth
becomes capable of being stolen.
Laws Simplified
Example: A cuts down a tree on Z’s grounds, with the intention of
dishonestly taking the tree out of Z’s possession without Z’s consent. Here, In the elder broth…
as soon as A has severed the tree in order to such taking, he has
committed the offence of theft.

00:00 03:09
In the case of TI Francis v, the State of Kerala, 1960,[5] the court once
made it clear that a house is immovable and cannot be subject to theft.
However, materials inside the house being movable properties are subject
to theft. Removing such materials with dishonest intention amounts to theft Mutation of Land…
as defined under section 378 of IPC.

Electricity:
00:00 04:02

In the case of Avtar Singh v. State of Punjab[6] the court ruled that
electricity is a movable property. The stealing of electricity has been made
a punishable offence. Therefore, the Electricity Act, 2003 in its section 35
punishes theft of electricity up to three years of imprisonment with or
without a fine.

Data

Theft of data has become one of the biggest issues courts as well as
individuals have to deal with in these recent decades. Data is not tangible
since it is only information thus it is incorporeal and is not covered under
the definition of theft in section 378 of IPC. But, if data is stored in some
tangible object like a hard drive, then theft of such an object would be
covered under this section and will amount to theft.

Crops

Growing crops are considered to be immovable properties since they are

attached to the earth; hence not subject to theft. But from the time they are
removed from the earth, they become movable property and can be stolen.

Human body

The human body cannot be considered to be a movable property and

hence section 378 cannot be applied in case of theft of the human body.
But in the case where the body has been preserved or the skeleton has
been kept, then such property comes under the ambit of section 378 and
falls under the definition of movable property.[7]

Property should be taken out of the possession of another person

In order to constitute the offense of theft, the property in question must be

in the possession of the prosecutor; whether he is the owner of it or is in
possession of it in some other manner. The property needs to be taken out
from the possessor. If a property does not have an owner, meaning that it is
not in the possession of anyone, such a property cannot be said to have
been stolen if a person acquires such property. Thus, there cannot be no
theft of wild animals. But theft is possible of domesticated or tamed
animals, birds, fishes etc. This has been decided by the court in the case of
Hoseenee v. Rajkrishna, (1873) 20 (Cr) 80 [8]

Taking without consent

The property must have been taken without the consent of the owner or
the person in possession of it. Explanation 5 makes it clear along with
illustrations (m) and (n) that the consent 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. The consent given
must be free. Consent must not be acquired through means of coercion or
fear of injury, or misrepresentation of facts, undue influence, fraud,
mistake, as enumerated under section 14 of Indian contract Act 1872.

Consent given during state of drunkenness or intoxication as well as

consent given by a person of unsound mind cannot consider being valid
consent. K. N. Mehera v. State of Rajasthan, AIR 1957SC 369 [9] .

In State of Maharashtra v Vishwanath Tukaram Umale, 1979,[10] the

supreme court decided that, if there is a transfer of a movable property
without the consent from the person in possession of the same for
whatever time or period it may be, temporary or permanent, is considered
to be theft.

 Moving of the property

The offence of theft is complete when there is the dishonest moving of the
property. Moving of the property is necessary, and the moving must be to
such taking and not to anything else. The least removal of the thing taken
from the place where it was before amounts to theft though it may not be
carried off. It is not necessary that the property should be removed out of
its owner’s reach or carried away from the place in which it was found.
(Venkatasami case, (1890), 144 Mad229)[11]

In Rakesh v State of NCD of Delhi [12], the court reiterated that in order to
fulfill the offence of theft, certain conditions are to be present. The court
further held that the most important thing in completing theft is that the
accused of theft should remove the movable property with dishonest
intention from any other person.

PUNISHMENT FOR THEFT

Section 379 to section 382 provides for the punishments of the offence of
theft. There are different kinds of punishment on the basis of the
circumstances in which an offence of theft is committed.

Section 379: Punishment for theft

If any person commits theft, that person shall be punished with

imprisonment of either description for a term which may extend to three
years, or with fine, or with both.

PUNISHMENTS FOR THEFT IN CERTAIN AGGRAVATING

CIRCUMSTANCES

Section 380: theft in dwelling house.

If any person commits theft in a dwelling-house meaning theft in any

building, tent or vessel, which building tent or vessel is used as a human
dwelling, or used for the custody of the property, shall be punished with
imprisonment of either description for a term which may extend to 7 years
and shall also be liable to fine.

Section 381: theft by clerk or servant of property in possession of

master.

If any person who is a clerk or servant, commits theft in respect of any

property in the possession of his master or employer, he shall be punished
with imprisonment which may extend to 7 years, and shall also be liable to
fine.

Section 382: theft after preparation made for causing death, hurt or
restraint in order to the committing of the theft.

Whoever commits theft, after having made preparation for causing death,
or hurt, or restraint, or of fear of death, or of hurt, or of restraint, to any
person, in order to the committing of such theft, or in order to the effecting
of his escape after the committing, or in order to the restraining of property
taken by such theft, shall be punished with for imprisonment which may
extend to 10 years and shall also be liable to fine.[13]

CONCLUSION

The offence of theft is one of the offences against property along with
extorsion, robbery and dacoity, criminal misappropriation of property,
criminal breach of trust, etc. Society is changing and new forms of theft are
emerging. Theft cases are much more common in recent decades than ever
before. The law must closely follow the evolution and changes in society as
well as its vices, adapt to them and provides for preventives measures,
sanctions and penalties against such crimes. Crimes against property
undermine the socioeconomic growth of individuals as well the nation’s
general growth.

REFERENCES

Books

 [1]. Indian penal code, 1860, bare Act, section 378, p.153 LexisNexis
universal

 2  Prof S.N MISRA, Indian penal code, p.771, nineteenth edition, central law
publications

  8. supra, IPC, Prof SN MISRA, Pg. 777 nineteenth edition, central law
publication

13. Supra, Indian penal code, 1860, bare Act, section 382, p.155 LexisNexis
universal

 Case laws

3 . M/s Shriram transport finance co.ltd. v. R. khaishiullah khan

4. Avtar sing v. state Punjab

 9. N. Mehera v. State of Rajasthan, AIR 1957SC  369

10. State of Maharashtra v Vishwanath Tukaram Umale, 1979

11. Venkatasami case, (1890), 144 Mad229

12. Rakesh v State of NCD of Delhi

                                 *  Web sites

5 Theft – Law Times Journal, https://lawtimesjournal.in/theft/  Akshita

Piplani

6 5 Main ingredients of theft: Explanation with case laws

(thefactfactor.com),

https://thefactfactor.com/facts/law/indian-penal-code/theft/1095/ Hemant
plus

7 5 Main ingredients of theft: Explanation with case laws

(thefactfactor.com)

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