New Delhi :- Adv. Sameer Singh Rawat Judicial Service Aspirants Read and comment answer written on analyses of the definition of Theft .
QUESTION 1. Analyze the definition of ‘‘Theft’’ as given in section 378 Indian Penal Code. [(500 word) 15 Mark]
Answer – Chapter 17 of the Indian Penal Code 1860, which deals with offenses against property, that section 378 provides for the offense of theft.
Section 378 of the Indian Penal Code 1860
Definition of theft – Whoever, with the intention of dishonestly taking any movable property from the possession of any person, without the consent of that person, removes such property to take that property is said to commit theft.
In other words- “When any movable property from the possession of any person, without the permission of the occupier, any person dishonestly intentionally takes away or removes it, we call it theft.”
The meaning of the words used in the definition of theft-
- Out of Person’s Possession – The article must be in the possession of a person, it is not necessary whether he is the owner of the article or not.
- Without consent – The person from whose possession the article has been taken is taken without his consent, he may not even know that someone has taken his article.
- Movable Property- Movable property means property which is movable, which can be carried from one place to another.
Note- Only movable property can be the subject matter of theft.
- Dishonest intention – When property is being taken, the intention must be dishonest in the sense of taking the property.
- Removes property to take – Removal of property means to remove it from the reach of the person in whose possession it is.
Note- Distance does not matter, the distance can be very short and also very much.
FIVE EXPLANATIONS ARE GIVEN IN THE DEFINITION OF THEFT
Explanation 1. As long as an object remains in possession, not being a movable property, it is not the subject of theft, but as soon as it is removed from the ground it becomes an item capable of theft.
Explanation- 1 states that there are certain immovable properties which can be converted into movable property and made the subject of theft. Example- A tree which is attached to the land is an immovable property which can be converted into movable property by cutting it apart and movable property is the subject of theft.
Explanation-2. Removal which is done by the same act from which the separation is done may be theft. Separation, removal.
Explanation 2. The meaning that is necessary for theft to be done (separation and carrying of the object) must be done by the same act. Example- A tree is removed from the ground i.e. it has been separated, and the tree is moved on it, i.e. removed by the same act so it can be stolen. Explanations 1 and 2 both relate to movable property.
Explanation- 3 By which actions the removal of an object can be done, three such functions have been described-
- Removal of obstruction – that which prevents the removal of that thing
- to separate that thing from something else
- By actually removing that item
Explanation 4 – A person is said to have removed any animal when he by any means removes that animal or removes everything which is removed by that animal as a result of the motion so produced.
Explanation 4 tells about theft of animals. Example– Taking a bull with the lure of fodder- In this the lure of fodder has been used as a means To remove that bull, the bull was removed with the lure of fodder- Which was attached to the bullock cart Pulling the bullock cart. But this work will be considered by the person.
Note- Explanations 3 and 4 pertain to deletion of an object.
Explanation- 5 Consent may be express or implied.
Right to give consent –
- the person in possession has or
- He who has the right to keep that property.
Explanation 5 generally means that if any person has the express or implied consent to give property, he shall not come under the offense of theft.
ESSENTIAL ELEMENTS OF THEFT
(1) Intent to take property dishonestly
(2) the property is movable
(3) taken from the possession of another person
(4) Lack of consent
(5) The removal of the property to a certain distance from its place.
Illustration-. ‘A’ had consensual sex with the wife of ‘Z’. She gives to ‘A’ a valuable property which ‘A’ knows to belong to her husband ‘Z’ and has no authority from ‘Z’ to give it to her. ‘A’ takes the property dishonestly is. ‘A’ has committed the offense of theft.
Illustration- ‘B’ takes the gold ring from ‘A’ without the consent of ‘A’ with the intention that ‘B’ returns the ring to ‘A’ until ‘A’ gives some money to ‘B’ will not return. ‘B’ is guilty of theft.
Section 378 Important Case – Pyarelal Vs. State, (1963) 2 C R.L.J 178(S.C) In this case, the accused was working on the post of superintendent in the government department. Brought a file from the office to his home and he gave it to another. Who took out some pages from that file and put other pages, later the accused kept it in the office. The accused was convicted of ‘theft’.
K.N. Mehra Vs State of Rajasthan A.I.R 1957 S.C 386 In this case, the accused had taken an aircraft of the Indian Air Force for unauthorized flight. The Court has just determined that the accused is liable for the offense of theft.
Section 379 Punishment for theft – Imprisonment for 3 years, fine or both.