Any person who has an intention to take dishonestly any movable property from a person possessing it without taking that person’s consent and thereby moves that property from one place to another to take it is pronounced to commit theft.
ELEMENTS OF THEFT:
- DISHONEST INTENTION OF TAKING A THING:
The intention of a person decides whether moving or taking something is theft or not. There should be an intention to cause wrongful gain to oneself and wrongful loss to another. However, there is no need for both, wrongful loss and wrongful gain to be caused, any one of them is sufficient to constitute theft. Thus, when there is no intention to take something dishonestly from the other there is no theft committed. The dishonest intention must exist at the time of moving a thing for committing theft. If an act is not done to steal a thing, it will not amount to theft. The permanent taking of a thing is not mandatory.
When the intention is proved to be bona fide then all the facts of the case need to be closely examined before adjudging it to be theft under Section 378 of the Indian Penal Code.
In the case of Nobin Chunder Holder, the accused had acted bona fide to protect the interests of his employers when he found a party of fishermen poaching on his master’s fisheries, he took the responsibility of the nets and retained possession of them, awaiting the orders of his employers, it was ruled that he is not guilty of theft.
It was also held in the case of Ram Ratan Alias Ratan Ahir & Another. vs The State Of Bihar And Another that, for adjudging a crime to be theft, a mala fide intention is a must. Thus, a person not having any dishonest or wrongful intention for taking a thing belonging to another cannot be punished under Section 378.
- MOVABLE PROPERTY:
The movable property is the material, corporeal, or some physical property, except land and things that are attached to the Earth. Only movable property can become a subject of theft. In case of theft, the value of the movable thing is not considered. The immovable property cannot be stolen. However, it becomes the subject matter of theft when it is detached from the Earth.
A thing must be moved without the consent of the person having possession of it. Such consent may be express or implied consent. The person from whom the thing is stolen need not be the legal owner of that thing. The physical control over a thing is considered enough. Such consent to take a thing from one’s possession when given during a state of intoxication, or consent given by a person of unsound mind, cannot be called a valid consent.
In Pyarelal Bhargava v. State AIR 1963, an employee of a government office took a file from the office and gave it to B, and after two days brought it back to the office. The Court held that taking a thing permanently is not required, even a temporary movement of the property from one place to another with dishonest intention is enough to constitute theft.
- PROPERTY IN POSSESSION:
The term possession must be distinguished from the term custody. A person has a thing when he can deal with it as an owner. In the case of custody, a person cannot deal with the thing as an owner but he can only keep that thing for the sake of another like a servant keeping a thing belonging to his master. When a thing is in the possession of a person’s wife or servant on account of that person, it is in that person’s possession.
To constitute theft, the stolen thing must be possessed by a person and then removed out of his possession for committing theft. Thus, when a thing is not possessed by any person, meaning it has no owner, it cannot become a subject matter of theft.
In the case of Hossenee vs. Rajkrishna, the Court held that for an offence to be theft, the prosecutor or the victim should possess the stolen property or the stolen thing. If the owner of the property dies and it is in nobody’s possession then it can not be stolen or become a subject matter of theft. However, such an act comes under criminal misappropriation.
- MOVING OF THE PROPERTY TO ACCOMPLISH THEFT:
The person committing theft must have moved the thing from its original place to some other place for committing theft. A person may be guilty of committing theft of his property, if that thing is possessed by another person and if he takes that thing dishonestly out of the possession of that person to cause wrongful loss to that person. For instance, a creditor who tries to remove a thing belonging to the debtor to enforce payment is liable. Thus, the thing must be moving a thing from one place to another. Even temporary deprivation or temporary retention of a thing is enough to constitute theft.
PUNISHMENT FOR THEFT:
The punishment for committing theft is imprisonment that may extend to three years or a fine or both.
CLASSIFICATION OF OFFENCE:
Theft is a cognizable and non-bailable offence. The offence is, however, “compoundable” denoting the complaint/case can be settled/withdrawn.
Section 181 of the Code of Criminal Procedure 1973, provides that the Court in whose limits of local jurisdiction the theft was done or the stolen thing was possessed by the thief or by any person who received or retained that property knowing it to be stolen has the power to investigate and conduct the trial of the case.
THEFT IN DWELLING HOUSE:
When the offence of theft is done by a person in a building or a vessel utilized for Human Dwelling or is being utilized for the custody of some property will be punished with imprisonment. In such a case the maximum imprisonment is of seven years and it can be less than that also. The person guilty of this offence has to pay the fine as well.
THEFT OF PROPERTY IN POSSESSION OF THE MASTER BY HIS SERVANT:
Under this section, if the theft of a property or thing is done by a servant or a clerk when that property or thing is possessed by his master or employer, the servant or the clerk shall be punished with imprisonment extending up to seven years and he also has to pay the fine.
THEFT AFTER PREPARATION MADE FOR CAUSING DEATH, HURT, OR RESTRAINT TO THE OTHER FOR COMMITTING THE THEFT:
When a person committing theft after making preparations for causing death, or hurt or restraint or fear of either of these to any person, for the committing such theft, or to escape after the committing of such theft, or to retain such property taken by such an offence shall be punished with imprisonment that is rigorous extending to ten years and the person will also have to pay the fine.
Thus, we can conclude that the offence of theft explained in detail under Section 378 of IPC is done when a person moves a property from one place to another with the dishonest intention of taking it from the possession of a person without taking his consent.