Theft and Shop lifting

Introduction

For human society to regulate and administer properly, protection for person as well as property is required. To certain extent provisions for violation of property rights have been provided in civil law and remedies are sought by private individuals in civil Court but sometimes the violation of property rights becomes so violent mischievous or fraudulent that the state finds it necessary to step in to use the criminal machinery and afford protection of property in an effective way. Chapter XVII of the Indian Penal Code talks about offences against property. Offences like theft, extortion, robbery and dacoity, criminal breach of trust and other offences are included in this chapter of IPC

Theft is covered in Sections 378 and 379 of the IPC. Usually these Sections are read with Section 22-25 and Section 44. In English law system theft is known as larceny but laws related to larceny are substantially different from theft under IPC. Section 378 of IPC deals with the offence of theft while Section 379 deals with punishment for theft.

Section 378 :Theft.—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.

Explanation 1.—A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.

 Explanation 2.—A moving effected by the same act which affects the severance may be a theft.

Explanation 3.—A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by sepa­rating it from any other thing, as well as by actually moving it.

 Explanation 4.—A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.

Explanation 5.—The consent mentioned in the definition 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.[i]

Hence theft can be defined as the dishonest removal of moveable property ‘out of the possession of any person’ without the consent of that person.

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.[ii]

Essential Ingredients of Theft:

  1. The property must be “movable property” and not immovable.
  2. Such property must be in possession of some person
  3. Existence of a dishonest intention to take the property out of the person’s possession
  4. The said taking must be without that person’s consent
  5. The property must be moved in to such taking

Movable property

The object or subject matter must be a movable property and not immovable. It should not be static. Explanation 1 and 2 of Section 378 also clarifies concept of movable property. Section 22 of the IPC defines movable property

 “Movable property”.—The words “movable property” are 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.[iii]

Animals

Animals are included in the definition of movable property.  A pet is considered to be the property of its owner. Any animal within the possession of the owner is the property of owner. If the animal is taken away

From the owner without the consent of the owner it amounts to theft.

Hence if A, being Z’s servant is entrusted by Z with the care of his dog takes and sells the dog to some other party, without Z’s consent. Here A’s act will amount to theft.

Human corpse

Human corpse can be considered as a special case in IPC.  Some argue that a corpse is not a person in the eyes of law.  To be considered theft a human corpse must be taken out of the possession of any person without his consent. Removal of ornaments from a dead boy cannot amount to theft and such kinds of cases are dealt in Section 403 of IPC.

Electricity

Theft of electricity is a cognizable offence and police can investigate without any complaint by the electrical inspector. The investigation does not require any complaint filed by the person aggrieved by the theft or at the instance of the government. Similarly Gas water etc are also included in movable property.

Idol

Idol is a movable property and can be subject matter of theft. As long as an idol is fixed at a place it is considered as an immovable property. But if it is severed from its fixed place and is moved from one place to another then it is considered as a movable property.

Possession

As per Salmond, possession means, “the continuing exercise of a claim, to the exclusive use of a thing constitutes the possession of it”. Possession means, “the state of having, owning, or controlling something”. Two most important kinds of possession are constructive and joint possession.

Constructive Possession: It refers to a situation where a person has no physical possession but the person knows an object and has the ability to control it.

Joint Possession: Under this, there are two points to be considered, which are as follows:

  • Mere Custody doesn’t Amount to Possession;
  • Temporary Deprivation or Dispossession is also Theft.

For any act to come under the definition of theft, it must make sure that the property must be taken out of the possession of its holder without his/her consent.

Attached possession: Even the owner of the property may be guilty of committing theft of his own property. For eg. removal of crops from a property which has been attached and taken in custody by the Court.

Joint possession: this is one of the grey areas in the IPC. As a general principle of theft it is required that the property must be in exclusive possession of the person other than the thief.

Illustration (J) AND (k) can be considered to understand the concept of possession.

Dishonest Intention

This is the most important ingredient of the Section as intention of the accused plays an important role in making it an offence of theft. Illustration (m) ,(p) clarifies that simply taking without dishonest intention is not theft. Section 23 defines wrongful gain and wrongful loss. Section 24 defines the word dishonestly.

Section-23- “Wrongful gain”.—“Wrongful gain” is gain by unlawful means of property to which the person gaining is not legally entitled. “Wrongful loss”.—“Wrongful loss” is the loss by unlawful means of property to which the person losing it is legally entitled. Gaining wrongfully, losing wrongfully.—A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrong­fully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.[iv]

Section- 24 -“Dishonestly”.—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”.

If B owes money to C for getting his car repaired and if C keeps the car with him lawfully, as a security for a debt, and B takes the car out of C’s possession, with the intention of depriving C of the property (car) which acted as a security for B’s debt, he commits theft, in as much as he takes it dishonestly. Thus, it can be concluded from the above situation that a person can also be convicted of stealing his property if he takes it dishonestly from another.[v]

However, Section 378 (Illustration clause ‘p’) suggests that when anything is taken under a claim of right, provided that claim is fair, good and bona fide, the thing so has taken, cannot be dishonest. Thus, such taking cannot amount to theft. Section 378 does not contemplate that taking of movable property must be of permanent character.

Without Consent

Explanation 5 and illustration (m) and (n) of Section 378 talks about consent and types of consent. The con­sent could be implied or express. Further, it may be of the person in possession, or by any person having implied or express authority for that purpose.

Another example of this could be where A asks for charity from Z’s wife. Z’s wife gives A money, food, and clothes, of which A is aware that they belong to Z, her husband. Here A may think that Z’s wife is authorized to give away alms (money or food given to poor people). If this was A’s intention in the form of an impression then he has not committed theft.

Consent which is not valid is explained in Section 90 of IPC.

 Consent known to be given under fear or misconception.—A consent is not such a consent as it intended by any Section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.—unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.[vi]

The case would have been entirely different if, A was an illicit lover of Z’s wife and she (Z’s wife) gives a valuable property, which A knows to belong to her husband Z, and Z has not given authority to his wife to give that property away at her discretion. Here if A takes the property (dishonestly), he commits theft.

Moving or taking

The offence of theft is complete the moment a thing is dishonestly moved in order to such taking even though such taking may yet be far from passing into thief’s possession. Explanation 3 and 4 deals with various modes of moving of property and show how “moving” could be effected in certain cases. There can be actual moving, by separating it from other thing and by removing an obstacle which prevented it from moving A puts a treat for B’s dog to induce the Z’s dog to follow him. Here, if A intended to dishonestly take Z’s dog out of Z’s possession without his consent, A has committed theft as soon as Z’s dog had begun following him.

If A meets a bullock carrying a box of treasure and he drives that bullock in a certain direction for dishonestly taking the treasure in his possession, A commits theft of treasure, as soon as the bullock begins to move.

Punishment for Theft

Section 379 of the IPC deals the punishment for theft as imprisonment up to 3 years or fine or both. Other succeeding provisions contain more severe punishment for theft under aggravating circumstances. For example, of IPC punishes the commission of theft in a building, tent or vessel used for dwelling or residence. The object of this provision is to provide greater security to properties in dwelling premises. The punishment for this is imprisonment up to 7 years along with fine.

379. Punishment for theft.—whoever commits theft shall be pun­ished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.[vii]

Difference between Larceny and Theft

Going by the literal definition, larceny is illegally taking away somebody’s personal property, with a depriving intention. Theft, on the other hand, is an act of taking of property with an intent to deprive the rightful owner of it. Hence we can conclude that larceny is a kind of theft restricted to personal property. Further, we can hence conclude that theft is an umbrella term under which lies larceny. Hence we conclude that larceny and theft are two entirely different things. Shoplifting is the theft of goods from an establishment typically by concealing a store item on one’s person, in pockets under clothes or in a bag and leaving the store without making the payment. Shoplifting in India falls under the offence of theft while in English law system it falls under the offence of larceny. Swapping price labels is also a form of shop lifting.

Case Laws

In the case of M/s. Shriram Transport Finance Co. Ltd. v. R. Khaishiullah Khan[viii] 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.

Electricity has been ruled to be immovable property according to the case of Avtar Singh v. State of Punjab[ix] 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.

In Pyarelal Bhargava v. State, AIR 1963[x], 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.


[i] Section 378 of IPC

[ii] Section 181 of IPC

[iii] Section 22 of IPC

[iv]  Section 23 of IPC

[v] Section 24 of IPC

[vi] Section 90 of IPC

[vii] Section 379 of IPC

[viii] [1] 1993 (1) KarLJ 62

[ix] AIR 1965 SC 666

[x] 1963 SCR Supl. (1) 689

References

  1. https://indiacode.nic.in/bitstream/123456789/4219/1/THE-INDIAN-PENAL-CODE-1860.pdf
  2. http://lawtimesjournal.in/theft/
  3. https://shodhganga.inflibnet.ac.in/bitstream/10603/132472/10/10_chapter%205.pdf
  4. http://www.awbi.org/awbi-pdf/APL.pdf 
  5. https://legal-dictionary.thefreedictionary.com/Constructive+Possession
  6. http://www.shareyouressays.com/knowledge/the-most-essential-ingredients-of-thefts-378-indian-penal-code-1860/111710https://www.quora.com/Burglary-dacoity-robbery-and-theft-are-all-different-crimes-under-the-IPC-How-do-we-differentiate
  7. http://devgan.in/ipc/?a=ipc&q=extortion
  8. http://www.shareyouressays.com/knowledge/what-are-the-main-ingredients-of-extortion/120076
  9. https://blog.ipleaders.in/theft-extortion-ipc/

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