Section 378 of Indian Penal Code, 1860 – Explained!
The second explanation says that a moving effected by the same act which effects the severance may be a theft. The third explanation explains that a person is said to cause a thing to move who either actually moves it, or who moves it by removing an obstacle which prevented it from moving, or who moves it by separating it from any other thing. The fourth explanation states that a person who causes an animal to move by any means is said to move that animal and to move everything which, in consequence of the motion so caused, is moved by that animal. The fifth explanation explains that the consent mentioned in the definition may be express or implied, and the possessor of the property may himself give it, or any other person who has express or implied authority for that purpose, may also give it. It is clear from the definition that there are following five essential elements of theft:
1. The intention on the part of the offender must be to take the property dishonestly.
2. The property of which theft is committed must be movable.
3. The property must be in the possession of some person.
4. The property must be taken without the consent of its possessor.
5. The property must be moved in order to such taking.
1. Intending to take dishonestly
The intention on the part of the offender must be to take the property dishonestly. The expression ‘dishonestly’ has been defined under section 24 of the Code according to which whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly. ‘Wrongful gain’ and ‘wrongful loss’ have been defined under section 23 of the Code which states that ‘wrongful gain’ is gain by unlawful means of property to which the person gaining is not legally entitled and ‘wrongful loss’ is the loss by unlawful means of property to which the person losing it is legally entitled.
The same section further says that a person is said to gain wrongfully when such person retains wrongfully, as well as such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of property, as well as when such person is wrongfully deprived of property.
It is not necessary for the offence of theft that wrongful gain or wrongful loss must result; the intention must be to cause wrongful gain or wrongful loss. If A takes the property of Â wrongfully, he causes wrongful loss to Â and if he keeps that property with himself, he causes wrongful gain to himself also. If he gives that property unlawfully to C, he causes wrongful gain to C.
If he destroys that property, he causes wrongful loss to Â but no wrongful gain to anyone. Therefore, what is material is that there must be intention to cause wrongful gain or wrongful loss, and not actual wrongful gain or wrongful loss. This is amply clear from illustration (Ë) in section 378 which also helps one to understand that the intention to take dishonestly must exist at the time of moving the property.
Where the accused took an aircraft belonging to the Indian Government to Pakistan without the permission of the Government of India, the intention on the part of the accused being to cause wrongful loss to the Government, he was held guilty of theft.
Where a postal clerk who was in charge of receiving parcels and other mail was accused of having committed theft of a parcel containing imitation stones, it was held that he could not be held guilty of the same as the parcel came into his possession by lawful means as he was authorised to receive it and thus there was no dishonest ‘taking’ on his part.
But he could be convicted of criminal misappropriation if he dishonestly misappropriated or converted the same to his own use. Where the owner of a barge sold it to another and received part payment for the same and threatened to cancel the contract if the full money was not paid within a specified time, which was not paid to her within that time, and she took the barge away with her, it was held that she had not committed theft as there was no dishonest intention on her part because she honestly believed that the possession of the barge still vested in her under law.
Where the accused went into a police station to make a complaint, and finding the constables on duty asleep, he picked up a handcuff from there and took it with him. He could not be convicted of theft because he did not intend to cause wrongful loss to the police department nor wrongful gain to anyone.
Where the accused destroyed the crops of the complainant but did not take them away, liability for mischief would ensue but not of theft. Seizure of camel of the complainant in order to compel the complainant to pay off the long standing debt was held to be a theft because no one is entitled to take law in his own hand and it does not matter even if the accused had no intention to deprive the owner of the animal permanently.
Where the accused acted under the mistaken belief that certain property was his and he had a right to take the same until the payment of the remaining amount due to him is made in full, it would not amount to theft as there was no dishonest intention.
Where a clause in a hire purchase agreement between a company making sewing machines and the complainant entitled the company to seize or remove the sewing machine in case payment of instalments was not made regularly, and there was arrear of several instalments out of which the complainant paid only one instalment when the servants of the company took away parts of the machine, it was held that there was no theft because there was no dishonest intention.
In M/s. Shriram Transport Finance Co. Ltd. v. R. Khaishiullah Khan, where there was a hire- purchase agreement between the parties and the vehicle was seized because of default in payment of instalments, it was held that the financer was entitled to the interim custody of the vehicle and it could not amount to theft as there was no dishonest intention.
Similarly, in Sekar v. Arumugham, where there was default of payment of instalments by the borrower of a bank loan, and the bank seized the lorry in accordance with the hypothecation agreement, the same could not amount to theft. The trend of the decisions suggest that a creditor who takes away the movable property out of the debtor’s possession without his consent with a view to coerce him to make the payments commits the offence of theft.
To hold it otherwise would be to recognise the right of the creditor to compel the debtor by means otherwise than in accordance with law, which in effect would mean taking the law in one’s own hand. In M/s. Sundaram Finance Limited v. Mohammad Abdul Wakeel, there was a hire purchase agreement in respect of a motor vehicle. The purchaser failed to pay the installments regularly.
The Madhya Pradesh High Court held that the right of the hirer to get back his vehicle was not affected by the fiction of deemed owner created by section 2(30) of the Motor Vehicles Act, 1988. The act of hirer taking back possession of vehicle would not amount to theft. Criminal Court, in exercise of powers under section 457 of the Code of Criminal Procedure, 1973, cannot deliver property to the deemed owner under the Motor Vehicles Act, 1988 as against a save it from any chance of its sacrifice. It was held that the accused was guilty of theft as the removal of the calf by him was dishonest.
Where a court Amin illegally removed a movable property by attaching it, its removal from the Amin’s place could not be said to be dishonest as there could be no intention to cause wrongful loss to the Amin, whose act was basically unlawful, or wrongful gain to another, and hence it could not amount to theft.
Where a student handed over the bag of the complainant, an ex-student, to the principal under the suspicion that it contained certain objectionable leaflets, and the Principal informed the complainant’s father that he himself was keeping the bag for the time being, and then handed it over to the police, it was held that neither the student who had handed over the bag to the Principal nor the Principal or the Vice Principal could be held guilty of theft as there was no dishonest intention on the part of any one of them and the proceedings deserved to be quashed.
Removal of a property under a bona fide claim of right cannot amount to theft because dishonest intention would be absent even if the claim is unfounded. Where a bona fide dispute existed between two parties over possession of a piece of land and one of them forcibly harvested the crop, it could not amount to theft if the party harvesting genuinely, even though mistakenly, believed that they had a right to the crop.
In such cases normally the courts first see as to which of them had possession over the land and if it was he who cultivated the land, and if yes, the courts would tend to agree that he had a right to harvest till the dispute over the property was finally settled. Where the accused seized certain cattle since they were trespassing on to his land and were thus damaging the crop and was taking them to the pound, he could not be held guilty of theft, howsoever mistaken he may be about his right to the land or the crop, because he had not acted dishonestly.
Illustrations (j) and (ê) in section 378 show that an offender can commit theft of his own property also. These illustrations however show that the property was in the possession of another person. But the same may not be true in case of a property which is jointly owned and jointly possessed by two persons. A and B, two brothers who stay in the same house jointly, are the joint owners and joint possessors of a wall clock. If either of them takes the clock dishonestly, he would be guilty of theft.
If A delivers money to his servant Â for carrying it to a distant place and robs him on the way by disguising himself, A would be guilty of robbing his own money. Illustration (ã), on the other hand, shows absence of dishonest intention. Presence or absence of dishonest intention has been prominently shown in illustrations (r), (j), (ê), (l), (n), (î) and (p) in section 378.
In an old English case, an automatic box belonging to a company was fixed against the wall of a public passage. There was a slit in it of sufficient size to admit a penny. If a penny was put in the slit and a knob at the centre of the machine was pushed in, a cigarette would be ejected from the box on to a ledge which projected from it. The accused persons went to the entrance of the passage and one of them put a brass disc, about the shape and size of a penny, into the slit and thus obtained a cigarette which he took to the other accused.
The court held the accused persons guilty of larceny. Should this mean that if an accused puts a false disc, about the shape and size, and perhaps weight also, of a coin of the required denomination in the slit of a weighing machine commonly kept in Indian railway stations, cinema halls and other public places, and he gets the ticket showing his weight thereby, he would also be liable for theft?
Husband and wife can possess joint as well as separate properties. Therefore, if a husband dishonestly takes his wife’s separate property, like her stridhana, without her consent, he commits theft. Similarly, when a wife does so, she also is guilty of theft.
2. Any movable property
The subject of theft must be a movable property as per the definition under section 378. Theft of immovable property is not possible. The expression ‘movable property’ has the same meaning as given by section 22 of the Code. This definition is an inclusive definition which says that this expression is intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth.
The first explanation shows that once an immovable property is converted into a movable property, it becomes a subject of theft, while illustration (a) shows that conversion from immovable to movable and moving of the property both can be done by a single act also. But whether a movable property is subject of theft or not must be judged in the light of section 95 of the Code according to which nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.
Where a disputed land is in possession of the complainant and he grows crops on it, the other party to the dispute has no right to harvest it, and if he does harvest it he may be guilty of theft. The first thing which a court generally does in such cases is to find out who grew the crop. But that is not decisive. The title of the land and the evidence of past possession also deserve to be looked into along with other allied matters. Growing crop is not movable property.
An idol is a juridical person. But that does not debar it from becoming a property. As long as an idol is fixed in a place such as a temple, it is an immovable property and so not subject of theft. But as soon as the same is severed, it is converted from immovable to movable and thus is subject of theft.
Bank draft forms
It has been held that bank draft forms are not just ordinary forms. These are valuable documents and are subject to security accountability. These are thus movable property and their dishonest removal would amount to theft.
In Avtar Singh v. State the appellant was charged with having committed theft of electricity. The Supreme Court ruled that electricity being an energy it cannot be movable property vide section 22 of the Code. But theft of electricity has been made an offence under section 39, Indian Electricity Act, 1910 which also says that the same will be deemed to be an offence under the Indian Penal Code and thus punishable under section 379 of the Code. A fiction is thus created and an offence which is an offence under an Act has been made punishable under the Code.
The appellant, however, could not be convicted of theft of electricity as the mandatory requirement of section 50 of the Act laying down as to who are competent to make such complaints of theft of electricity could not be complied with. The Electricity Act, 1910 has now been replaced by the Electricity Act, 2003 section 35 of which provides punishment for theft of electricity with imprisonment extending up to three years or with fine or with both. Cases of theft of electricity, therefore, will henceforth be decided in accordance with the Electricity Act, 2003 and not under the Indian Penal Code.
Where the accused connected wire in his house directly with the mains of the electricity board, thus obtaining electricity without paying for the same through a meter, he was held guilty of theft under section 39, Indian Electricity Act, 1910 read with section 379 of the Code. In Jogesh Chandra Das v. State of Tripura, the deceased who went to catch fish in the river died due to electrocution on coming into contact with the unauthorised electric hook line drawn by the petitioners.
The Gauhati High Court held that the Sub Divisional Officer (Electrical) who inquired and lodged a written complaint under sections 379 and 304-A of the Indian Penal Code and section 39 of the Electricity Act, 1910 is a ‘person aggrieved’ within section 50 of the Electricity Act, 1910 and so competent to initiate proceeding under the Act. Fixing a wooden piece in the electricity meter of the tube well with a view to slow down the movement and thus reducing the reading in it, and altering the index of an electricity meter and tampering with the wiring to prevent proper reading have been held to be theft under the Electricity Act, 1910 read with the Code.
Water is movable property as per the definition of movable property in section 22. Unlike electricity it is not an energy. Therefore, theft of water is punishable where water is reduced into possession of someone. But sea and river being not in the possession of anyone taking such water would not amount to theft.
Gas has been held to be movable property by English courts, and as such theft of gas has been punished as larceny where the accused, in order to avoid paying for the total gas consumed by him, introduced another pipe at the entry point of the gas which allowed the gas to move without going into the meter.
Human body, whether living or dead, is not a movable property within the meaning of section 22 of the Code. Stealing a dead body thus does not make the accused guilty of theft. But where a human body has been preserved as a mummy, or where any part of it has been preserved with some purpose, like for research etc., or where a human body or skeleton is being used as an article, for research or teaching etc., stealing the same would amount to theft.
Transplantation of Human Organs Act, 1994 penalises certain acts committed with respect to human organs. Section 18 of this Act provides punishment for removal of human organ without authority. Sub-section (1) of this section says any person who renders his services to or at any hospital and who, for purposes of transplantation, conducts, associates with, or helps in any manner in, the removal of any human organ without authority, shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to ten thousand rupees. Sub-section (2) of this section says where any person convicted under sub-section (1) is a registered medical practitioner, his name shall be reported by the Appropriate Authority to the respective
State Medical Council for taking necessary action including the removal of his name from the register of the Council for a period of two years for the first offence and permanently for the subsequent offence. Section 19 provides punishment for commercial dealings in human organs. It says whoever—(a) makes or receives any payment for the supply of, or for an offer to supply, any human organ; (b) seeks to find person willing to supply for payment any human organ; (c) offers to supply any human organ for payment; (d) initiates or negotiates any arrangement involving the making of any payment for the supply of, or for an offer to supply, any human organ; (e) takes part in the management or control of a body of persons, whether a society, firm or company, whose activities consist of or include the initiation or negotiation of any arrangement referred to in clause (d); or (f) publishes or distributes or causes to be published or distributed any advertisement, (a) inviting persons to supply for payment of any human organ; (b) offering to supply any human organ for payment; or (c) indicating that the advertiser is willing to initiate or negotiate any arrangement referred to in clause (d), shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to seven years and shall be liable to fine which shall not be less than ten thousand rupees but may extend to twenty thousand rupees: Provided that the court may, for any adequate and special reason to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than two years and a fine less than ten thousand rupees. Section 20 provides punishment for contravention of any other provision of this Act. It says whoever contravenes any provision of this Act or, any rule made, or any condition of the registration granted, there under for which no punishment is separately provided in this Act, shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees. Section 21 which deals with offences by companies provides vide sub-section (1) that where any offence, punishable under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly : Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. Sub-section (2) of section 21 says that notwithstanding anything contained in sub-section (1), where any offence punishable under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punishment accordingly.
Explanation appended to section 21 explains that for the purposes of this section, (a) “company” means anybody corporate and includes a firm or other association of individuals; and (b) “director”, in relation to a firm, means a partner in the firm.
Animals have been divided into two categories-animals mansuetae naturae or tame, pet or domesticated animals, and animals ferae naturae or ferocious, wild, dangerous or non-domesticated animals. The tame animals have been held to be movable property. Thus theft of a dog, cow, goat, bullock, cat, etc. is possible.
But dangerous animals could not be kept in the possession of someone and hence these have generally been held to be not movable property and thus they are generally not subject of theft. Shooting of deer in a government reserved forest was, therefore, held to be no theft In view of the fact that deer belongs to the latter category and until it is shown that an animal belonging to the latter category was tamed or domesticated, it cannot be a subject of theft.
To reduce an animal belonging to the latter category into a movable property there must be complete capture of the same with no chance of it being able to escape and the result of which is to reduce it completely into possession. A tamed peacock even though not kept in confinement was held to be a subject of theft. Fish in their free state are regarded as ferae naturae. So are fish in an ordinary open irrigation tank, or a tank which is not enclosed on all sides and which depends on the overflow of a neighbouring channel, or in a river or creek in which fishing rights are let out, or in a navigable river.
But fish will be presumed to be in possession of a person whose possession extends to any expanse of water where they live but from where they cannot escape, or in a fishery under the possession of a person who has exclusive right to catch it from there. Catching fish in a government tank with dishonest intention without obtaining a licence as required under rules was held to be theft as possession of the same vested in the government. Killing a wild animal on the property of another person would not make the killer entitled to the carcass but the owner on whose property it has been killed.
3. Out of the possession of any person
In theft the movable property must be taken out of the possession of any person. Even though the expression ‘possession’ has not been defined in the Code. Section 27 does say that when property is in the possession of a person’s wife, clerk or servant, on account of that person, it is in that person’s possession within the meaning of this Code; and the explanation attached to section 27 explains that a person employed temporarily or on a particular occasion in the capacity of a clerk or servant, is a clerk or servant, within the meaning of this section.
In view of this possession requirement theft of wild animals, birds or fish, while at large, is not possible; but theft of tamed animals is possible. The requirement of possession has been highlighted by illustrations (d), (e), (f) and (g) in section 378.
Where a person put slabs over a water channel belonging to the public works department for providing ingress and egress to his residence from the public road, removal of the slabs by anyone with dishonest intention without that person’s consent would amount to theft because that person has never abandoned his possession over the slabs.
Where a co-owner of joint property, with a defined share, removed the share of the other co-owner with the intention of causing wrongful loss to him and wrongful gain to himself, he would be guilty of theft. Dishonest removal of a cycle from outside a market would be theft. Its owner had temporarily kept it at that place with the intention of coming back at that place after some time and take it and thus he had not abandoned his possession over it.
4. Without that person’s consent
In theft the property must be taken without the consent of the possessor. Consent can be express or implied and can be given by the possessor or any authorised person on his behalf, explains the last explanation in section 378. Illustrations (m) and (n) highlight the consent aspect. Illustration (o) explains that consent under improper circumstances is not valid. Section 90 of the Code, dealing with consent, states that consent given under fear of injury or under misconception of fact is not a valid consent if the person taking the consent knows or has reason to believe that the consent was given under such circumstances.
It also states that consent under unsoundness of mind or under intoxication is also not valid if the giver of the consent does not understand, because of such state of mind, the nature and consequences of that to which he gives his consent. It also states that unless the contrary appears from the context, consent of a person under twelve years of age is not valid.
A sought B’s aid in committing theft of S’s master’s property. Â told everything to his master, and then assisted in the theft to procure A’s punishment. It was held that A would be liable for abetment of theft only and not for theft because in theft the property must be taken without the consent of the possessor whereas in this case B’s master knew about A’s plans and had thus given his implied consent to A so that he and Â together could catch A committing theft.
Under English law in similar circumstances, however, A was held guilty of larceny because consent is a two-way affair, the giver of the consent knowing as to what is he consenting to and the taker of the consent knowing what for is he seeking consent, but in the present case while B’s master knew about A’s plans, A did not know as to what was in B’s master’s mind and, therefore, this was not a valid consent, and thus the property was taken without the possessor’s consent.
5. Moves that property in order to such taking
A theft gets completed only when the movable property which is the subject of theft is moved in order to such taking. Moving of the property is a must, and the moving must be in order to such taking and not for anything else. Explanations 1, 2 and 3 in section 378 explain as to how moving could be effected under certain situations. Illustrations (a), (b), (c) and (h) in this section illustrate the aspect of moving of the property.
Where the accused, an employee in a post office, while assisting in sorting letters took out two letters with the intention of handing them over to the delivery peon and sharing with him certain money payable upon them, he was held guilty of theft and also of attempted criminal misappropriation of property. Where the accused pulled wool from the bodies of live sheep and lambs, he was held guilty of committing larceny.
In Dhananjay v. State of Bihar, there were business relations between the informant and the accused. Money admittedly was due from the informant to the accused. The informant alleged that the accused with unknown persons entered into his room and demanded money in excess of dues. On refusal to pay more money the informant was slapped by the accused and money was taken away from his pocket. There was no allegation that money was paid by the informant having been put in fear of injury. The Supreme Court held that the offence committed was not extortion but theft.