Chapter XVII (378- 382) of Indian Penal Code,1860 deals with the Offences Against Property. Theft, in layman terms means the taking of a person’s property without the consent of the owner and Section 378 of the Indian Penal Code, 1860 (IPC) has provided a proper legal definition of theft.
Under this Section, Theft has been defined as the act of taking any immovable property with a dishonest intent and without the consent of the owner of such property. The Section further provides in the explanations given that any object attached to the earth would be considered as an immovable property hence it could not be a subject of theft but once it is removed from the earth it would become a movable property and could be stolen. The consent that must be attained for a property to be taken without it being considered theft may either be express or implied.
Prerequisites of Theft
1) Dishonest Intention
Section 24 of IPC provides that dishonesty means the intention of wrongful gain or wrongful loss. Section 23 of the IPC provides the definition of both wrongful gain and wrongful loss. Wrongful gain means gaining any property unlawfully, the person who is losing the property is the legal owner of such property. Wrongful loss means the loss brought about by unlawful
In the case of M/s. Shriram Transport Finance Co. Ltd. v. R. Khaishiullah Khan, 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. Further, there were no dishonest intentions.
2) Movable Property
Section 22 of IPC has provided the definition of movable property; means that any corporeal property except land and things permanently attached to the earth. Only movable property can be stolen as it is impossible to take immovable property away. Immovable property can be converted into movable property and once it has been converted such property can be stolen.
Electricity has been ruled to be immovable property according to the case of Avtar Singh v. State of Punjab 1965 SCR (1) 103 but stealing of electricity has been made a punishable offence. The punishment for theft is provided under section 35 of Electricity Act, 2003 as up to three years of imprisonment with or without a fine.
Theft of personal data has become one of the biggest issues of the current age. Data is intangible since it is only information thus it is incorporeal and does not come under the definition of theft given in Section 378 of IPC. If data is stored on some tangible object like a hard drive, then theft of such an object would be covered under this Section.
Growing crops are attached to the earth and hence cannot be considered movable property but once they are converted into movable property by removing them from the earth, it can be considered as theft.
The human body cannot be considered to be movable property and hence Section 378 cannot be applied in case of theft of human body. But in case of instances where the body has been preserved or the skeleton has been kept, then such property is covered by Section 378 and falls under the definition of movable property.
3) Property in possession
In order for theft to have occurred, the property being stolen must be taken from the possession from the owner of such a property. If the property does not have an owner then such property cannot be said to have been stolen if a person acquires such property. For example; if A finds a gold nugget in a stream and he takes the gold home, it cannot be considered theft as the gold nugget has no owner.
4) No Consent
The property that is in question must have been taken without the consent of the owner of such a property. The consent can either be implied or express. The consent given must also be free meaning that such consent must not be acquired through means of coercion or fear of injury or misrepresentation of facts.
Consent given during state of drunkenness or intoxication as well as consent given by a person of unsound mind cannot be considered to be a valid consent.
In Pyarelal Bhargava v. State, , a govt. employee took a file from the government office and presented it to B, and brought it back to the office after two days. Held that permanent taking of the property isn’t required, even a temporary movement of the property with dishonest intention
is enough and thus this was theft.
Punishment for Theft
Punishment for theft is provided under Sections 379-382. Different punishments have been provided for different circumstances of theft are mentioned as below:
Section 379- Punishment for theft: A person committing the crime of theft may be imprisoned for a period of time that may extend up to 3 years or a fine or both.
Classification of Offence
The offence under this section is cognizable, non-bailable, compoundable by the owner of the property stolen with the permission of the Court , and triable by any magistrate.
Kinds of Aggravated Theft
Section 380- Theft in Dwelling house
A person committing theft in the dwelling-house of any human whether it be a tent, house or vessel may be imprisoned for a period of time up to 7 years along with a fine.
Explanation : Dwelling house means a building, tent or vessel in which a person lives or remains whether permanently or temporarily. A railway waiting room is a building which is being used for human dwelling. Theft of articles from the roof of a house fall under this section. Satho Tanti vs. State of Bihar AIR 1973 Cr.LJ 76 Motive is to give greater security only to property deposited in a house and not to the in immovable property of the person or the party from whom it is stolen.
Section 381- Theft by a clerk or servant in possession of master’s property
If any person who is a servant or clerk commits theft of any property owned by his master, such person shall be punished with imprisonment of 7 years as well as a fine.
Section 382- Theft after preparation made for causing death, hurt or restraint in order to the committing of the theft
Any person who commits theft having made preparation for death, hurt or restraint or fear of the death, hurt or restraint for the purposes of such theft or for escape or retaining such property shall be punished with imprisonment for a period of time up to 10 years along with a fine. For example, A commits theft on property in Z’s possession and while committing this theft, he has a loaded pistol under his garment, having provided this pistol for the purpose of hurting Z in case Z should resist. A has committed the offence in this section.
Also Read: Essential Elements of Crime
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