DEFINITION OF THEFT U/S 378 OF IPC
INGREDIENTS OF THEFT
- There must be a dishonest intention of a person to take the property.
- Removal of movable property.
- Such movable property must be taken away.
- The property must be taken away from the possession of a person. In other words there must be a possession of that property.
- Such property must be taken away without the consent of such person.
- DISHONEST INTENTION TO TAKE AWAY:-It is also called as malafied intention which can be representation in the form of mensrea. This mensrea is the base of the theft. The petitioner must prove that a thing was taken away with the dishonest intention i.e. to cause wrongful gain or wrongful loss to any person.
In Pyarelal Bhargava v. State AIR 1963, a govt. employee took a file from the govt. office, presented it to B, and brought it back to the office after two days. It was held that permanent taking of the property is not required, even a temporary movement of the property with dishonest intention is enough and thus this was theft.
- MOVABLE PROPERTY:-Movable property is defined in Section 22, IPC as including ‘corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth’.
Explanations 1 and 2 of Section 378 state that things attached to the land may become movable property by severance from the earth and that the act of severance itself will be theft. Illustration (a) shows that when A cuts down a tree on Z’s ground with the intention of dishonestly taking the tree out of Z’s possession without his consent, A is guilty of theft. Animals can become the subject of theft, for they can be classified as movables. Illustration (b) deals with dog and illustration (c) deals with bullocks as the subject matter of theft.
In State (NCT of Delhi) v. Sanjay, held that the dishonest removing of sand, gravel and other minerals from the river, which is the property of the State, out of the State’s possession without the consent, constitute an offence of theft.
In Avtar Singh v State of Punjab[AIR 1965 SC 666], the Supreme Court held that electricity cannot be considered to be moveable property and section 378 by itself would not include a theft of electricity. It also held in the same case that dishonest abstraction of electricity mentioned in the Indian Electricity Act, 1910, is not an offence under the IPC, though it is offence under section 39 of the Electricity Act. Nevertheless, theft of electricity is deemed to be an offence under IPC as section 39 of the Electricity Act enables punishment under section 379 of the IPC.
NOTE– [It is a theft as statutorily defined previously under section 39/44(now under section 135-136 of the Electricity Act, 2003) of the Electricity Act, 1910 and basically the Section 379 IPC is referred only for the purposes of the punishment that is to be given, it is not a substantive offence punishable under the Section 379 of the IPC]
- BE TAKEN AWAY OUT OF POSSESSION OF ANOTHER PERSON:- A movable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need. 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 a large but there is a theft of tamed animals.
ILLUSTRATION:-‘A’ finds a ring lying on the road which was in the possession of any person. A by taking it commits no theft, though he may commit criminal misappropriation of property.
In Mohar Singh v State of Rajasthan,(1980) Supp SCC 655 the accused had snatched the revolver from a member of the complainant’s party, in order to prevent further bloodshed. Thereafter, he surrendered the revolver to the police at the earliest. Under the circumstances, it was held that the accused had no intention to commit theft.
- IT SHOULD BE TAKEN WITHOUT CONSENT OF THAT PERSON:- 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.
ILLUSTRATION NO. 1:- ‘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 of merely reading it (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.
ILLUSTRATION NO.2:- ‘A’ asks charity from Z’s wife, she gives A 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 authorised to give away alms. If this was A’s impression. A has not committed theft.
ILLUSTRATION NO.3 :- ‘A’ is the paramour of Z’s wife and she gives A, the valuable property, which A knows that these belongs to her husband Z, although she has not authority from Z to give the same. If takes the property dishonestly, he commits theft.
ILLUSTRATION NO.4:-A sees a ring belonging to Z lying on the table in Z’s house. 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 rings, commits theft.
In Purshotam v State[(1962) 64 Bom LR 788], held that consent obtained by false representation which leads to a misconception of facts will not be a valid consent.
- Moves that property: The offence of theft is completed when there is a dishonest moving of the property, even though the property is not detached from that to which it is secured. There must be moving of the property with an intention to take it.
PUNISHMENT FOR THE OFFENCE OF THEFT
The punishment for committing theft in Indian Penal Code under section 379 for offence of theft is an imprisonment which may extend to three years or with fine or both
AGGRAVATED FORMS OF THEFT UNDER THE INDIAN PENAL CODE, 1860.
- Sections 380-382 of the IPC, state the aggravated forms of theft which are punished more severely.
- Section 380 of the IPC. Theft in dwelling house, etc.- “Whoever commits theft in any building, tent, or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”.
- Section 381 of the IPC. Theft by clerk or servant of property in possession of master- “Whoever, being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
- Section 382 of the IPC. Theft after preparation made for causing death, hurt, or restraint in order to the committing theft- “Whoever commits theft, having made preparation for causing death, or hurt, or restraint, or 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 of such theft, or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
- NOTE– The only difference between the offence under this section and that in the case of robbery (Section 390 of the IPC) is that some injury is actually inflicted in the case of robbery, while under this section all preparations are made for facilitating escape after committing such theft.
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