Author: Neitseizonou Solo | Featured-Pic Credit: Shashwat Ashiya

Introduction to Theft- 

Theft, in layman terms it 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.

For example, if A, the owner of a bucket says nothing when B informs A that he is taking the bucket and expressly informs A that the bucket would then on be in his possession, it cannot be said that the bucket has been stolen. In this situation A has given his implied consent to B to take the bucket, here, no theft has occurred.

Essentials of Theft
 1-Dishonest Intention

It is provided in the definition that there must be a dishonest intention for an act to be considered as Theft. Section 24 of IPC has provided 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 means. A person is said to have gained wrongfully when he acquires or gains such property wrongfully and a person is said to have lost wrongfully when he is deprived or kept out of his own property.

In the case of M/s. Shriram Transport Finance Co. Ltd. v. R. Khaishiullah Khan[1], payment for a hire-purchase agreement defaulted and the property was seized and in this particular case, 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; it is given that movable property is 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

Electricity has been ruled to be immovable property according to the case of Avtar Singh v. State of Punjab[2] but stealing of electricity has been made a punishable offence by the Indian Electricity Act, 1910 which was later replaced by the Electricity Act, 2003. The punishment for theft has been provided in Section 35 of Electricity Act, 2003 as up to three years of imprisonment with or without a fine.

  • Data

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.

  • Crops

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.

  • Human Body

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 meaning that it is not in the possession of anyone, then such a 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.

Can a person steal their own property?

The simple answer is yes, a person can steal their own property. This may appear to be counterintuitive as a person in possession of property has complete enjoyment rights but sometimes the title of a property may be owned by a person but not right of enjoyment, he has restricted rights. Such an instance may arise in situations where the property is pawned, the property is still owned by the actual owner but he cannot enjoy such property. In that instance, if the actual owner steals back the property then it will be considered to be theft.

Punishment for Theft

Punishment for theft has been given in 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.

  • 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.

  • 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.

Difference between Theft and Robbery

The terms theft and robbery are often used interchangeably but a distinction between the two has been provided for in the legal world. The definition of robbery has been provided in Section 390 of IPC and it s provided that theft becomes robbery when the offender in committing the theft causes or attempts to cause death, hurt\ or restraint or fear of the death, hurt or restraint. Thus, robbery involves theft but for the commitment of such theft when a person is killed, hurt or restrained then it will be considered to be robbery.

Section 382, robbery involves the actual cause or attempt to cause death, hurt or restraint while Section 382 involves the “preparation” for death, hurt or restraint.

The punishment for robbery has been given n Section 392 and it states that the crime of robbery may be punished with rigorous imprisonment of up to 10 years along with a fine and further, imprisonment may n=be increased to up to 14 years in case robbery takes place on the highway between sunset and sunrise.

Difference between Theft and Dacoity

Dacoity is basically robbery but the point of difference is that dacoity involves five or more perpetrators and it has been defined in Section 391 of IPC. Section 395 provides the punishment for dacoity, it states that dacoity shall be punished with life imprisonment or rigorous imprisonment for a period that may extend up to 10 years along with a fine.

[1] 1993 (1) KarLJ 62.

[2] AIR 1965 SC 666.

About the author: Neitseizonou is a third-year law student at Hidayatullah National Law University.

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