This article has been written by Oishika Banerji, from Amity Law School, Kolkata. This is an exhaustive article dealing with movable property as the subject-matter of theft.
It is a known fact for all of us that theft can only be carried out for the movable property. Therefore, movable property as the subject-matter of theft has wide connotations. Theft of any movable property signifies wrongful possession over the same. As the possession of the theft property is not legally recognizable, it has been declared as a criminal offence under the Indian Penal Code, 1860. The person whose property has been subjected to theft is compensated for the same as has been provided in the statute. A movable property consists of several elements inside it ranging from electricity, water to that of personal property like vehicles, money etc.
Therefore, the list of movable property is inclusive of everything except those that are attached to the earth. The reason why the movable property has become a subject-matter of theft is that the entire concept of theft revolves around movable properties. Therefore, this subject-matter requires attention in order to study the concept of theft. For any legislation to be framed and applied, it is necessary for the law-makers to be aware of the subject they are handling otherwise the legislation may not be of any use or rather of efficient use to govern theft, a criminal offence. The courts have been of greater help here. This is because the judgments delivered by the courts act as a precedent for the law-makers to follow while they carry out amendments in the existing law. The judgments are also a precedent for the investigating officers to avoid loopholes in the investigation and get hold of the offender easily to provide compensation and justice to the aggrieved party.
Movable property: the subject matter of theft
Movable property as the subject-matter of theft has a wide meaning attached to do. Before moving to a specific explanation of the same and the legislation governing it, it is better to have a basic idea about this subject matter. As has been mentioned earlier as well, any property not attached to the earth is to be considered as movable property. The act of severance of this movable property amounts to theft.
Section 22 of the Indian Penal Code, 1960 defines the term movable property. The provision lays down that the term movable property includes corporeal property which excludes land and any other things attached to the earth permanently. The movable property provision is clear rather than being exhaustive as can be inferred from the language of the statute. The explanation of movable property is not limited to the Indian Penal Code, 1860 only. Section 3(36) of the General Clauses Act, 1897 also defines the movable property. The thing to be noticed is the definition is different according to the objective and the application of the statutes. But by not being limited to one statute, the movable property has proved out to be of relevance for several statutes. Going by the Indian Penal Code, 1860 in this concept, the mention of the term corporeal property within the ambit of movable property calls for an explanation as well. Corporeal property is any property which can be perceived only by senses.
Therefore what categorises as movable property and what does not is inferred by referring to the movable property as a corporeal property. The Supreme Court of India in the case of Avtar Singh v. the State of Punjab observed that electricity cannot be held as a movable property but fish can be categorised as movable property. The court further said that the human body either living or is dead cannot be a movable property but a mummy can be. This observation by the court states that it is on the perception to understand what is the movable property and what isn’t. Another thing to be taken into concern is that the definition of movable property provided under Section 22 of the Indian Penal Code,1860, distinguishes between land and earth. It says that land along with the things which are attached to the earth is to be considered as immovable property. But as soon as the land and the things attached to the earth are detached from it, they become movable property and subject-matter of theft.
An illustration to provide a better explanation of this can be made by presenting a hypothetical situation in which A with dishonest intention cuts down a tree which was present in B’s ground. A will be guilty of theft of the property for the detached the immovable property from B’s land thereby making it movable in nature. In TI Francis v. the State of Kerala, the court held that a house being an immovable property cannot be subject to theft but the materials inside the house being movable properties are subject to theft. Therefore, there are certain elements that are categorised as movable property and fall under Section 22 which can be considered as the subject-matter of theft. The elements are listed below.
Animals are categorised as movable property and therefore can be subjected to theft. Now animals can be further categorised as domestic and wild. While the former comes under the possession of a person, the latter does not have a specific owner. If only the wild animals are killed on the soil, they become the absolute property of the owner of that soil and therefore comes within the possession ambit. Animals which come under the possession of an individual cannot be abandoned for if they are, they cannot be said to fall under possession any further.
In the case of Govinda Majhi v. Arobinda Kaur, the court held that the accused is not guilty of catching fish from a portion of the licensed river of the defendant. Fishes are always considered as ferae naturae which means they are wild animals and therefore cannot fall under the possession of any individual although it being a movable property. Therefore if also catching fish is prohibited in the area which is in possession of the defendant, no theft is said to have been committed to catching the fish. Fishes are free from the owner’s possession if they are made to flow in water which comes in and out of the pond which the owner owns.
A new viewpoint about fishes was gathered by the court in the case of Chandi Kumar Das v. Abanidhar Roy. In this case, the question that arose before the court was if fishes are removed from a tank which was in possession of the person in actual sense, and removal of fishes from that place will amount to theft or not. The court held that if fishes are stolen from an enclosed place where the fishes are not free to flow anywhere they want, removal of fishes from that place will amount to theft. Thus it is on the actual possession of the owner which determines the liability on fishes.
As has been mentioned before as well in the case of Avtar Singh v. the State of Punjab, electricity is not to be considered as movable property and therefore is not covered under the ambit of theft as provided in Section 378 of the Indian Penal Code, 1860. If also there is a dishonest intention associated with the extraction of electricity, the same will be governed by the Indian Electricity Act, 1910 and not under the Indian Penal Code,1860.
In the case of Ram Bharosey v. State of Uttar Pradesh it was viewed that if there is the removal of animals who are gazing in an open land after being left by the owner himself, the same will amount to theft under Section 378 of the Indian Penal Code, 1960. Further, in the case of Ram Ratan v. the State of Bihar, the Supreme Court of India observed that if a person seizes the cattle entering his land in form of trespassing and resulting in damage in the crops and the land in totality and he claims that he was taking the cattle to the pound, he will not be liable for committing the offence of theft.
Around the world, the human corpse is not considered property. In India as well as human corpses do not fall under the subject of theft. The only thing that is associated with human corpses is the stealing of dead bodies from the burial ground. But in such cases, the offence would not be covered under Indian Penal Code,1860 rather it would come under trespass on burial grounds.
It was the observation of Calcutta High Court that freely flowing water from a river through a channel which has been constructed by a person cannot be categorised as a subject of theft. On the contrary, it was in the case of Re Chockalingam Pillai where the Madras High Court was of the opinion that running water which flows through irrigation canal is a subject to theft for it then comes under the possession of a person. The difference between the verdict passed by the two courts is on the concept of possession. Water should be reduced to be considered under the term of possession to be subjected to theft. While in the Calcutta High Court’s verdict, water was considered as a possession but Madras High Court considered water as a possession in the case it discussed. Therefore different courts are of different views regarding possession but the common element being possession is required to be present to call an offence as theft.
These are some of the lists of things that are present within the ambit of Section 22 of the Indian Penal Code,1860 but it is completely on the discretion of the courts to decide how to apply the available provisions effectively.
An overview of Section 378
Section 378 of the Indian Penal Code,1860 deals with theft. The ingredients which constitute theft are provided in the Section as:
- Dishonest intention.
- The property is a concern is a movable property.
- The property should be in possession of a person from the very beginning.
- Absence of the consent of the original possessor of the object.
- The movement has to take place, that is the movement of the object being subject to theft from its original place to some other place.
These constituents were provided by the court in the case of Prafulla Saikia v. the State of Assam. If A finds a ring in a drawer which he knows belongs to C at C’s place, removes the ring without C’s approval and takes it with himself intending to misplace it can be said to have committed theft. Taking into consideration another situation, if A and K are good friends and A takes a book to read from K’s library in good faith and with the intention to return it further after reading without taking K’s approval implying that K being his friend has already provided him permission to do so, A will not be liable for theft. This is because the grounds on which he took the book are opposite to that mentioned under Section 378.
Therefore if the two situations provided above are analysed, what can be noticed is that along with the property and the person illegally handling it, there are several other factors as well which constitutes theft. Theft being a criminal offence will consist of both actus reus that is the physical elements such as place, time, person, preparation and mens rea which include the mental element that is the presence of mind. In the case of KN Mehra v. State of Rajasthan, the ingredients of the offence of theft have been provided with a detailed explanation. The analysis which the court presented with of Section 378 have been provided hereunder:
- Involvement of a movement of the movable property from its original possession to somewhere else without the consent of that person.
- The movement that is being carried out is backed by a dishonest intention with the motive of taking away the property.
The court further provided the meaning of the definition of dishonest intention as has been provided under Section 23 and Section 24 of the Indian Penal Code, 1860. The involvement of dishonest intention in the commission of the crime in case of theft is essential to show that the person carrying out the crime wants to enjoy the gain of having the property by lawful means from the person who was entitled to such enjoyment.
The fact that the gain or loss involved in possessing the property does not need to be in totality for partial enjoyment of the property by the person in wrongful possession of the same depriving the original possessor for a temporary period of time is enough to constitute the offence of theft. This is in one way that theft is different from larceny as has been provided in the English Law which deals with the contemplation of permanent profit or loss. Moving and taking is a must for the commission of the theft. Moving the property from its original place and then taking it away with an unlawful intention should be present while theft is being committed. The taking should be fraudulent by nature for it is an offence.
The provision for theft provides five explanations to explain the term theft. Among them, it has been provided that a person can be said to have caused movement in an object if that thing is moved by removing an obstacle which was obstructing the object from moving or the object has been separated from the things it was originally with. A similar rule applies to animals as well. If a person moves an animal or causes something that initiates its movement along with the movement of the other things associated with the animal. The punishment for the commission of theft has been provided under Section 379 of the Indian Penal Code, 1860. The provision provides two types of punishment either of which can apply. They are:
- Imprisonment for three years, or
- Fine of Rs 750.
Aggravated forms of theft are available as well. They are governed by Section 380 and Section 381 of the Indian Penal Code, 1860. While Section 380 provides the provision for theft caused in dwelling houses like buildings, tents etc, Section 381 provides provision for theft caused by a clerk or by the servant of the property which is in possession of their master.
Section 378 and 379 of the Indian penal Code,1860 aims to provide protection to the possession a man has over his movable properties. Theft of movable property is always related to the possession a person has over his property and not the ownership. Whenever a person has control over his property whether it is right or in a wrong way, is said to be having a possession. It is nearly impossible to define the term possession for it is very wide to limit itself only in words. Possession can be in a de facto way or in de jure way. De facto symbolises only custody over a property for example in case of a servant who has de facto possession over his master’s property. Whereas de jure is having legal possession of the property. Courts in several of its judgments have made us realize that possession of any property is always associated with retention. If a person who has bought a car and the same has been stolen, the person will get back the car merely because there was a shift in the title of possession and not ownership.
On the contrary, if the same person buys a car and then sells the same to another in consideration of a certain amount cannot gain back or retain back the car because along with the possession he has also given away the title of ownership which cannot be retained until he buys his own car back. It was in the case of Superintendent and Remembrancer Legal Affairs, West Bengal v. Anil Kumar, it was decided by the court that the determining test as to whether a person is in possession of a property can be known by being aware of the fact whether the person is in the general content of the property or not. Possession can also be in the form of constructive possession. This happens when the person does not have an actual possession over the property and in such case the person should have possession under the legal view. This possession is known as de jure possession or in simple terms as legal possession. A person can be said to have constructive possession in the following cases as have been provided below:
- In some places where the person exercises his control for example in a pond.
- Whenever a person has delegated the responsibility of taking care of his property by another person which results in a master-servant relationship develops. But any person who is out of this relationship for them the property is a possession. Constructive possession applies to them.
Joint possession also exists. In one well-known case it was held that when there are a number of joint owners who are in joint possession with the property and among them if anyone dishonestly takes possession, he will be declared guilty of theft.
Theft of one’s own property
Removal of his own property is not categorised as theft as there is no provision in the Indian law declaring the same. Theft is termed as removal of someone else’s property with a dishonest intention with a motive to enjoy the property which the person was entitled to enjoy. But if a situation arises where A who has given her watch to be repaired by B and B in this situation remains the same lawfully in form of security for the debt and from him, A takes away the watch with a dishonest intention to deprive B of the security for the debt, then in such case A will be guilty of theft for the essential ingredients constituting theft is present in the captivity carried out by A. If such a situation or situation similar to this arises then a person will be guilty of committing theft of his own property under the Section 378 of the Indian Penal Code, 1860.
- In the case of Niraj Dhar Dubey v. Central Bureau of Investigation, the issue was to determine whether copying of software which originally belongs to a company by an employee of the company fell under the purview of Section 378 and Section 381 of the Indian Penal Code,1860 or not. The Court came to a conclusion which said that copied software does not constitute theft for it lacks in having the essential ingredients that constitute theft. Further, the court also said that the ingredients of Section 381 were absent as well. Therefore the charges on the person were removed. It is always believed that consent plays a very essential role in constituting theft. Theft can only arise when there is no consent of the original possessor of the property.
- If there is consent on the part of the owner, then it cannot be termed as theft for along with consent comes willingness as well. This was held in the case of Musamat Hamira Bibi v. Musammat Zubaida Bibi and Ors. Here a debtor had given up his property to the creditor and when he realised that the debt was barred by time, he charged the creditor with theft. This was held to be unsustainable by the court.
- The court in the case of Venkat Narayan v. State of Andhra Pradesh stood with the view that if in any act which is about to be considered as a theft lacks dishonest intention completely, then in such cases, theft cannot be held to have been committed.
- The Supreme Court in the case of State of Maharashtra v. Vishwanath Tukaram Umale was of the opinion that if there is a transfer of a movable property without the consent from the person in possession of the same for whatever time period it may be, temporary or permanent constitutes theft. The court added to its observation that it is not even necessary for the wrongful possessor to have the property with him during the investigation. A minor transfer of property from its original place is enough to constitute theft.
- A similar principle was applied in the case of Pyarelal Bhargava v. State of Rajasthan, where a person who removed a file from a chief engineer’s office providing to a third person for only a day was held to have committed theft. Therefore time is not what matters it is the motive and the displacement of the object that matters.
- In the case of Dilip Kumar Deka v. the State of Assam, the court decided on the defence of being charged under Section 378 of the Indian Penal Code, 1860. The court, in this case, said that when there is a removal of property in the assertion which originated from a contested claim of right, the same would not constitute theft, whatever amount of mental intent be present in the same. When the claim of right is backed by bona fide nature, mens rea or the mental element is postulated by the same. This, therefore, becomes a complete defence to theft charges.
- Similarly, it was in Chandi Kumar v. Abraham, where the court held that whenever theft of movable property has taken place, the burden of proving the title of possession lies on the owner of the property. The claim for the moveable property should be backed by fair and good evidence in front of the court of law.
- In the case of Rakesh v. State of NCT of Delhi, the case took in the view that theft as having been provided and detailed under Section 378 of Indian Penal Code, 1860, lays down certain requirements as well. The most important requirement is that the accused of theft should remove the movable property with dishonesty from another person. Removal of movable property should be actual in order to constitute the offence of theft because until the movable property is removed, theft cannot be said to take place.
- The Supreme Court in its recent judgment in the case of Birla Corporation Limited v. Adventz Investments and holdings Limited & Others, held that even temporary removal of original papers and documents for the purpose of replicating the same will fulfil the essential requirement of theft that is the movement of the property and thereby will constitute as theft under the ambit of Section 378. A temporary loss for the deprivation of property will have the same importance as a loss for permanent deprivation. Focusing on the relevant ingredients of theft that are:
- A movable property;
- Intention to remove the property; and
- The movement of the movable property has to take place.
The cases which have been provided and discussed above deal with the different angles of Section 378 of the Indian Penal Code, 1860 which meets at a commonplace that is the movable property. In every case, the courts took into concern movable property for the determination of the offence as a theft. This says that the relevance of movable property is far and wide which the courts have to consider and apply while deciding judgments under Section 378.
Theft is always associated with movable property. As have been mentioned under Section 378 of the Indian Penal Code, 1860, theft involves the illegal transfer of possession and not the ownership of the property. The first basic ingredient of constituting theft is that the property in concern is a movable property without which the existence of Section 378 would not have had any meaning. With the judgments delivered by the courts, the subject-matter of theft has developed a lot and will develop more. The movable property, therefore, plays an indispensable role in the offence of theft to arise.
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