THE OFFENCE OF THEFT UNDER THE IPC
Author: This article is written by Kammate NATIGOU
*Author has written this article while pursuing training program on article writing by indianlegalsolution.com
The notion of theft is as old as the existence of man on earth. Theft is a social phenomenon. Men always have this tendency to appropriate something that does not belong to them; by one means or another. The Indian lawmakers have not remained silent on this issue. Thus, in the Indian Penal Code (IPC), the offence of theft is discussed. The offence of theft falls under the ambit of offences against property in chapter 17 of the Indian penal code.
In this article, we will discuss the definition of theft, the ingredients of theft, the punishments provided as well as other forms of theft from section 378 to 382.
DEFINITION AND MEANING OF THEFT
Generally, we conceive the concept of theft as taking something that belongs to another person. In this context, simply taking the property of someone else without that person’s permission or consent is believed to be theft. However, in a legal sphere, the IPC provides a clear and more exhaustive definition of theft.
Section 378 of IPC defines theft. According to this section, whoever, intending to take dishonestly any moveable property out of the possession of any person, without that person’s consent, moves that property in order to such taking, is said to commit theft. In other words, dishonestly removing a movable property out of the possession of any person without his/her consent, amounts to theft.
Furthermore, section 378 in its explanations makes it clear that as long as a thing is attached to the earth, it is not a moveable property and cannot be stolen. However, this thing becomes subject of theft as soon as it is cut off or severed from the earth. A moving effected by the same act which affects the severance of the property from the earth may be theft. It also clarifies that the consent mentioned in definition may be express or implied.
This section lays down certain specific requisites without which there cannot be an offence of theft.
INGREDIENTS OF THEFT
The essential requirements of theft are as follow:
- Dishonest intention to take property
- The property must be movable
- The property should be taken out of the possession of another person
- The property should be taken without the consent of that person
- There must be some moving of the property in order to accomplish the taking of it .
- Dishonest intention
As in any other crime, the intention is one of the basic ingredients in the constitution of the offence of theft. While committing the offence of theft, the intention of the offender must be dishonest. Dishonest intention as per section 24 of IPC means doing something with the intention of causing wrongful gain to one person or wrongful loss to another. Under section 23 of IPC, wrongful gain means to gain by unlawful means of property to which the person gaining is not legally entitled whereas wrongful loss means the loss by unlawful means of property to which the person losing it is legally entitled. The dishonest intention is in other words malafide intention. Taking another person’s property believing it to be one’s own does not amount to theft.
In the case of M/s Shriram Transport finance co. Ltd. v. R. Khaishiullah Khan , 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.
Also, in the case of Venkat Narayan v State, 1976  of Andhra Pradesh, the court held that if in any case, the dishonest intention is missing, then such case does not amount to theft case. The dishonest intention must be there in order to charge an accused guilty of the offence of theft.
- The property must be movable
The object of theft must be movable. Movable property according to section 22 includes corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth. Immovable properties are not subject to theft; they cannot be taken away. However, the explanation 2 of section 378 states that immovable property as soon as it is severed or cut off from the earth becomes capable of being stolen.
Example: A cuts down a tree on Z’s grounds, with the intention of dishonestly taking the tree out of Z’s possession without Z’s consent. Here, as soon as A has severed the tree in order to such taking, he has committed the offence of theft.
In the case of TI Francis v, the State of Kerala, 1960, the court once made it clear that a house is immovable and cannot be subject to theft. However, materials inside the house being movable properties are subject to theft. Removing such materials with dishonest intention amounts to theft as defined under section 378 of IPC.
In the case of Avtar Singh v. State of Punjab the court ruled that electricity is a movable property. The stealing of electricity has been made a punishable offence. Therefore, the Electricity Act, 2003 in its section 35 punishes theft of electricity up to three years of imprisonment with or without a fine.
Theft of data has become one of the biggest issues courts as well as individuals have to deal with in these recent decades. Data is not tangible since it is only information thus it is incorporeal and is not covered under the definition of theft in section 378 of IPC. But, if data is stored in some tangible object like a hard drive, then theft of such an object would be covered under this section and will amount to theft.
Growing crops are considered to be immovable properties since they are attached to the earth; hence not subject to theft. But from the time they are removed from the earth, they become movable property and can be stolen.
The human body cannot be considered to be a movable property and hence section 378 cannot be applied in case of theft of the human body. But in the case where the body has been preserved or the skeleton has been kept, then such property comes under the ambit of section 378 and falls under the definition of movable property.
- Property should be taken out of the possession of another person
In order to constitute the offense of theft, the property in question must be in the possession of the prosecutor; whether he is the owner of it or is in possession of it in some other manner. The property needs to be taken out from the possessor. If a property does not have an owner, meaning that it is not in the possession of anyone, such a property cannot be said to have been stolen if a person acquires such property. Thus, there cannot be no theft of wild animals. But theft is possible of domesticated or tamed animals, birds, fishes etc. This has been decided by the court in the case of Hoseenee v. Rajkrishna, (1873) 20 (Cr) 80 
The property must have been taken without the consent of the owner or the person in possession of it. Explanation 5 makes it clear along with illustrations (m) and (n) that the consent may be express or implied and may be given either by the person in possession or by any person having for that purpose authority either express or implied. The consent given must be free. Consent must not be acquired through means of coercion or fear of injury, or misrepresentation of facts, undue influence, fraud, mistake, as enumerated under section 14 of Indian contract Act 1872.
Consent given during state of drunkenness or intoxication as well as consent given by a person of unsound mind cannot consider being valid consent. K. N. Mehera v. State of Rajasthan, AIR 1957SC 369  .
In State of Maharashtra v Vishwanath Tukaram Umale, 1979, the supreme court decided that, if there is a transfer of a movable property without the consent from the person in possession of the same for whatever time or period it may be, temporary or permanent, is considered to be theft.
The offence of theft is complete when there is the dishonest moving of the property. Moving of the property is necessary, and the moving must be to such taking and not to anything else. The least removal of the thing taken from the place where it was before amounts to theft though it may not be carried off. It is not necessary that the property should be removed out of its owner’s reach or carried away from the place in which it was found. (Venkatasami case, (1890), 144 Mad229)
In Rakesh v State of NCD of Delhi , the court reiterated that in order to fulfill the offence of theft, certain conditions are to be present. The court further held that the most important thing in completing theft is that the accused of theft should remove the movable property with dishonest intention from any other person.
PUNISHMENT FOR THEFT
Section 379 to section 382 provides for the punishments of the offence of theft. There are different kinds of punishment on the basis of the circumstances in which an offence of theft is committed.
Section 379: Punishment for theft
If any person commits theft, that person shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
PUNISHMENTS FOR THEFT IN CERTAIN AGGRAVATING CIRCUMSTANCES
Section 380: theft in dwelling house.
If any person commits theft in a dwelling-house meaning theft in any building, tent or vessel, which building tent or vessel is used as a human dwelling, or used for the custody of the property, shall be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to fine.
Section 381: theft by clerk or servant of property in possession of master.
If any person who is a clerk or servant, commits theft in respect of any property in the possession of his master or employer, he shall be punished with imprisonment which may extend to 7 years, and shall also be liable to fine.
Section 382: theft after preparation made for causing death, hurt or restraint in order to the committing of the theft.
Whoever commits theft, after having made preparation for causing death, or hurt, or restraint, or of 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, or in order to the restraining of property taken by such theft, shall be punished with for imprisonment which may extend to 10 years and shall also be liable to fine.
The offence of theft is one of the offences against property along with extorsion, robbery and dacoity, criminal misappropriation of property, criminal breach of trust, etc. Society is changing and new forms of theft are emerging. Theft cases are much more common in recent decades than ever before. The law must closely follow the evolution and changes in society as well as its vices, adapt to them and provides for preventives measures, sanctions and penalties against such crimes. Crimes against property undermine the socioeconomic growth of individuals as well the nation’s general growth.
. Indian penal code, 1860, bare Act, section 378, p.153 LexisNexis universal
2 Prof S.N MISRA, Indian penal code, p.771, nineteenth edition, central law publications
8. supra, IPC, Prof SN MISRA, Pg. 777 nineteenth edition, central law publication
13. Supra, Indian penal code, 1860, bare Act, section 382, p.155 LexisNexis universal
3 . M/s Shriram transport finance co.ltd. v. R. khaishiullah khan
4. Avtar sing v. state Punjab
9. N. Mehera v. State of Rajasthan, AIR 1957SC 369
10. State of Maharashtra v Vishwanath Tukaram Umale, 1979
11. Venkatasami case, (1890), 144 Mad229
12. Rakesh v State of NCD of Delhi
* Web sites
5 Theft – Law Times Journal, https://lawtimesjournal.in/theft/ Akshita Piplani
6 5 Main ingredients of theft: Explanation with case laws (thefactfactor.com),
https://thefactfactor.com/facts/law/indian-penal-code/theft/1095/ Hemant plus
7 5 Main ingredients of theft: Explanation with case laws (thefactfactor.com)