Regulation of the administration is mandatory for the human society. It requires the protection of not only the person as an individual but also their property. Therefore, all systems of jurisprudence have made provision for its protection from the earliest times. Provisions for the violation of property rights have been provided in civil law and remedies are sought by private individual in civil court to obtain specific relief. Thus, 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.
Section-378
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
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 means.
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 the court held that it would not constitute theft as the financer was entitled to seize such property. Further, there were no dishonest intentions.
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
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. 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.
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.
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.
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, AIR 1963 [3], 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.
Jurisdiction
As per Section 181 of the Code of Criminal Procedure 1973, the offence of theft may be enquired into or tried by court within the local limits of whose jurisdiction such offence was committed or the property stolen was possessed by the thief or by any person who received or retained the same knowing or having reason to belief it or to be stolen.
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] 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.
State Amendments (State of Tamil Nadu)
Section 380 of Indian Code (Central Act XLV of 1860) (hereinafter in this Part referred to as the principal Act) shall be renumbered as sub-section (1) of that section and after sub-section (1) as so renumbered, the following sub-section shall be added, namely: –
“(2) Whoever commits theft in respect of any idol or icon in any building used as a place of worship shall be punished with rigorous imprisonment for a term which shall not be less than two years but which may extend to three years and with fine which shall not be less than two thousand rupees.
Provided that the court may, for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than two years.” [5]
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 defined in this section.
Classification of Offences
In case of Section 380 and Section 382 of IPC, 1860 the offence is cognizable, non-bailable, and non-compoundable. Whereas the offence committed under Section 381 of IPC, 1860 is compoundable by the owner of the property stolen with the permission of the Court.
Frequently Asked Questions (FAQs)
1. Who can file a complaint for Theft?
It is necessary that the person to whom wrongful loss by theft has been caused should file a necessary complaint against it. However, any person who is aware of the theft can make a complaint.
2. 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.
3. Is theft ever justifiable?
Nothing is justifiable. Justification is an action carried out by Person A in order to change the mind of Person (or persons) B. Sometimes, A and B are the identical , as when we try to justify something to ourselves. Nothing is justified or unjustified to the Universe. Even religions folks consider the need to justify their actions to God. To them, God is Person B.
For instance, if a friend told me that he stole a coat because he was homeless and penniless and it was midnight and he was freezing to death. I would feel that he had justified his actions to me. I would realize that in his shoes, I would do the same act , and that I would never blame anyone for doing what he did. In other words, I would bet that my friend could successfully justify his actions to many other people besides me. If someone’s existence is at stake, and his act of thievery didn’t threaten another person’s survival, he will have fully justified himself, in the sense that nobody will ever blame him for his actions.
4. According to IPC, what is the minimum value (in terms of money) of an item to consider it for a case of theft?
While theft has no definition in terms of value, in General under IPC – monetary values of Rs. 50/- or higher amount will attract penalty as per Section 429 . So, this can be deemed as the bottom value especially in case of Kirdar v. State, when Alok Kirdar protested against his being punished for a theft of Rs. 850/- (1994) .Thus, the Judge ruled that anything above Rs. 50/- was a principled theft.
5. What is the difference between theft and Aggravated theft?
Theft is the act of taking away the necessary material from another person without proper consent and with the intention of never returning the item. There are several kinds of theft in criminal law, one of which is the aggravated theft.
Thus, Aggravated theft is theft of property, but with any of the following aggravating factors:
- The use a weapon in the commission of the crime, and in particular, deadly weapons;
- Threats or intimidation in relation to the crime;
- Gang or organized crime-related theft;
- Theft of high-value assets or property; and/or
- Theft of police or government property, and similar crimes.
Aggravated theft is looked upon seriously in the judicial system, and in some jurisdictions, it is the most serious theft crimes. Thus, each state and jurisdiction has the ability to categorize the crimes in different ways. It is a good example of a crime that varies from region to region.
Persons found guilty shall be sentenced to at least one year of prison, along with fines and a permanent felony record. Aggravated theft convictions can even permanently or temporarily affect an individual’s legal rights such as Voting rights , Gun ownership rights, Driving privileges and Right to serve on a jury.
6. If theft were punishable by death would thieves get smarter or theft disappear?
Even petty theft (for as little as a loaf of bread) was punishable by death in 18th and 19th century England. People who are desperate will still steal, especially when the alternative is to starve.
What happened in England with this “social experiment” is that juries often refused to convict even when the evidence was clear and obvious. In a majority of cases where death was ordered, the magistrate would falsely record that the sentence had been carried out, and instead actually sentence the convict to prison, or to transportation (which meant being shipped off to Australia). The English (who have never been a particularly weak-kneed lot) had no stomach for widespread executions of people who turned to petty crime solely out of desperation.
The moral of the story seems to be that overly harsh sentences lead to widespread disregard of the rule of law, often by those charged to enforce it, and to the erosion of public acceptance of, and trust in, the criminal justice system, and is thus ultimately not in the public interest.
Edited by Madonna Jephi
Quality check – Ankita Jha
Approved & Published – Sakshi Raje
References
[1] 1993 (1) KarLJ 62
[2] AIR 1965 SC 666.
[3] 1963 SCR Supl. (1) 689
[4] (1974) Cr LJ 76 (Pat)
[5] Vide Tamil Nadu Act 28 of 1993, Sec. 2
