This article has been written by Sarthak Mittal, a student at the Vivekananda Institute of Professional Studies of Indraprastha University, Delhi. The article aims to explain what is the offence of theft and the criminal sentence attached to such an offence in India. It also discusses various legal intricacies considered by legislatures while imposing criminal liability in cases of theft.

This article has been published by Sneha Mahawar.​​ 

Introduction 

The Indian Penal Code, 1860 was drafted by the first law commission chaired by Thomas Babington Macaulay. The code was drafted completely in 1850 and presented before the legislative council in 1856. The implementation of the Code was delayed due to the great revolt of 1857 and as a result, the Code came into force on 1st January, 1860. Chapter XVII of the Code deals with offences against property and includes offences like theft in Section 378 and criminal liability for the given offence in Section 379. 

The offence of theft was also recognised and punished even in ancient India. For instance, during the tenure of Warren Hastings as the Governor General of India, pandits of Banaras compiled a Hindu code that came to be known as the Gentoo Code, which classified the offence of theft as “open theft”, which was punishable by imposition of a fine and “concealed theft”, which was punished cruelly by cutting off the hands or feet of the criminal. The Quran enumerates several hudud crimes, out of which, in verse 5:38, the offence of theft has been recognised and punished by the imputation of hands. During the British period, by Bengal Regulation XVII of 1817, all the people convicted of the offence of theft were made liable to a death sentence by Section 15. However, the brahmins of Banaras were exempted from such a punishment. It is pertinent to note that the offence of theft in the contemporaneous era does not lead to such severe criminal punishments as were imposed in ancient India. 

Theft under Section 378 of IPC 

Any offence usually consists of two elements which are “Actus Reus”, which in accordance to Professor Kenny, means the consequence ensued as a result of active conduct or omission and “Mens Rea”, which means the guilty conscience of the party. “Mens Rea” can also be defined as the objective standard of intention decided by the legislative. Theft, as defined under Section 378 of the Indian Penal Code, 1860, is the moving of a movable property out of the possession of any person with dishonest intention of taking the property, and herein, the act of moving is done without the consent of the person who is in possession of the property. It is pertinent to note that, as per Explanation 5 of the provision, the consent of the person can be expressed or implied.  The “Actus Reus” here is the “moving of property,” and “Mens Rea” is “Dishonesty”. It is pertinent to note that an offence of theft is consummated only when both elements are present. The given proposition of law has been enumerated by the legal maxim “Actus non facit reum nisi mens sit rea”, which means that an act will not alone render a man guilty unless it has been done with a guilty mind. In the case Rakesh v. State of NCT of Delhi (2015), it was held that the mere intention of taking the property by moving it out of the possession of a person would not result in the offence of theft, but the act of moving is essential. 

The term “possession” here is necessary to be understood as it includes both actual and constructive possession. Actual custody means actual and physical control over the property, whereas, in constructive possession, the person may not be in the physical custody of the property, but he may exercise it through someone else like an agent, and in all cases of constructive possession, he retains his right to exclude everyone from the use of the property even if he is not physically present to have custody of it. Section 27 of the Code recognises constructive possession of the property when the person hands over the possession of the property to his wife, clerk, or servant.

Dishonestly 

The word “dishonest” has further been defined under Section 24 of the Code, which means to do an act with intent to cause wrongful gain to one person and wrongful loss to another person. The words “wrongful gain” and “wrongful loss” has been defined under Section 23 of the Code as gaining property through unlawful means to which a person is not legally entitled and causing loss of property through unlawful means to which the person was entitled, respectively. The provision also includes wrongful retention and wrongful acquisition of property within the ambit of “wrongful gain,” and it further includes wrongful deprivation of property within the ambit of “wrongful loss.” 

In the 1957 case of K.N. Mehra v. State of Rajasthan, an Indian Air Force Academy training cadet was accused of flying a different plane and at a different time than he was supposed to fly. The accused was forced to land in Pakistan. The plane was returned to India. The accused was charged with theft, but he said that the property had been returned and that there had only been a temporary loss of property. He said that this did not fit the definition of the word “deprivation” in Section 23. It was held by the Supreme Court that even temporary deprivation would suffice to consummate the offence of theft. The same proposition of law was upheld and reiterated in the case of Pyarelal Bhargava v. State of Rajasthan (1963). 

Act of Moving 

The guilty act is the act of moving, which is listed in Section 378’s Explanation 2, which says that “the act effecting the severance” will be seen as the act of moving when a property is cut off from the ground by a person’s actions. Further, in Explanation 3, it has been explained that, wherein property has been prevented from moving by adding an obstacle, “the act of removing the obstacle” will be seen as the act of moving. Furthermore, in Explanation 5, it has been explained that when a person causes an animal to move, he affects not only the movement of the animal but every other thing that moves due to the moving of the animal.

Furthermore, in the case of theft, ownership is never the issue; what is to be seen is possession. In the case of Purustam Naik v. Chakradhar Das in 1958, it was decided that a criminal court does not have the right to decide who owns a piece of property. 

Movable Property 

The offence of theft can only be committed with respect to movable properties, and the ambit of the term “movable property” has been defined in Section 22 of the Indian Penal Code, 1860. The term “movable property” included all kinds of corporeal property within its ambit, which means that all materialistic things can be said to be movable properties. The provision is also exclusive, and it excludes land and anything attached to the earth. It also follows the doctrine of fixtures and includes anything fastened to something attached to the earth. Explanation 1 of Section 378 provides that, generally, all things attached to the earth are not capable of being subject to theft; however, as soon as such property is severed from the earth, it will become subject to theft. 

Presumption for stolen property

The mere fact that a property has been seized from a person will not be sufficient to prove that the property has been stolen by him, rather, the burden of proof will be on the prosecution to prove that the property seized is stolen. It’s important to note that if this person can’t explain why he has such property, Section 114 of the Indian Evidence Act of 1872 can be used to assume that he knew it was stolen when he got it. The same circumstance has also been enumerated in Illustration (a) of the provision. The presumption cannot be raised on the mere seizure of the property, rather a reasonable nexus should be made between the property and the offence of theft, extortion, robbery, criminal misappropriation, or criminal breach of trust. The properties covered under the ambit of the term “stolen property” have been provided in Section 410 of the Indian Penal Code. Offences related to the stolen property have been provided under Sections 411 to 414. 

Punishment in cases of theft 

In cases of theft, Section 379 of the Code provides imprisonment for up to three years, a fine, or both. However, aggravated forms of theft have been given in the preceding section, wherein Section 380 and 381 provide for theft in any building, tent, or vessel used as a human dwelling or for custody of goods and theft done by a clerk or servant. In both cases, the penalty can be up to 7 years in prison. Lastly, Section 382 provides for the most aggravated form of theft, wherein the accused commits theft while preparing to cause death, hurt, or wrongful restraint to the victim to commit theft, and the punishment in such cases extends up to 10 years of rigorous imprisonment. 

Punishment should not be heavier than required to deter the convicted person from committing the offence again. A fine need not be inflicted necessarily along with the imprisonment, nor can it be given in lieu of imprisonment. In the 1983 case of Keshav Sitaram Sali v. State of Maharashtra, the person was convicted of theft of coal for Rs. 8 and fined Rs. 500 by the High Court. He was later sentenced to rigorous imprisonment for 2 months in default of payment of the fine. On appeal being filed before the Supreme Court, it was observed that the punishment was more than what was needed to deter the convict and that it was a fit case to exercise Sections 3 and 4 of the Probation of Offenders Act, 1958, wherein admonition and probation can be used as a punishment to deter the person. Further, it is also pertinent to note that the fine should be imposed while keeping in mind that the offence of theft should not become a profitable venture for the convict.

Necessity and Theft

Various deliberations have been held on the issue of whether a person who is stealing to avert hunger and feed his family to save himself and them from starvation is liable for the offence of theft. Will it be justified to prosecute someone for theft when he was simply exercising his right to self-preservation arising from the right to protection of life and personal liberty granted under Article 21 of the Indian Constitution? In the Indian context, the legislative branch held a discussion, which was elaborated on in note B of the draught penal code on page 11, where it is observed that if necessity is allowed as a defence to theft, idleness in society will increase as everyone will rely on the easier and more convenient alternative of stealing rather than paying for food with their hard-earned money. However, the opinion given by the majority was that only in rare cases where the person had no other option rather than stealing to appease hunger, he may get exonerated. 

Jurists like Bacon noticed that stealing food to feed yourself is not the same as stealing or larceny. Hobber, on the same issue, said that stealing during a famine may be justified, but if a person is poor due to his own shortcomings, it cannot be a justification. Blackstone, on the other hand, observed that economic necessity is not a defence.  

In the case of Jayantilal Purshottamdas Patel v. State of Gujarat (1974), an employee who was being paid Rs. 125 per month as salary committed theft of goods worth Rs. 104 from the shop he was employed in. The trial court imposed a fine of Rs. 200 as punishment for the offence of theft. It was observed by the High Court of Gujarat that the wife of the accused delivered a child just 15 days before the date of the commission of the offence, due to which the accused was in dire need of funds to take care of the necessities of his family and that his employer has not suffered any loss. The poor accused was driven to extreme economic distress and also lost his job. In such a situation, the sentence fine will not justify the court’s acting on behalf of society and will only add to the distress and insult faced by the accused. In such a case, the court levied a fine of Re. 1, taking into account the necessity of the accused. 

Enhancement of Punishment under Section 75 of IPC

If a person is convicted of the offence of theft a second time, his punishment can be enhanced as per Section 75 of the Indian Penal Code, 1860. For every subsequent offence of theft, he can be subjected to the punishment of imprisonment for life or imprisonment extending up to 10 years. Section 75 applies to all offences included in Chapter XVII (offences against property) and Chapter XII (offences related to coins and government stamps), wherein the offence is punishable with a term of imprisonment of 3 years or upwards. To invoke Section 75, the previous conviction is to be proved to the court during charge framing.    

Conclusion 

The offence of theft is made punishable to provide security to the citizens of society regarding their possessions. It’s important to remember that when someone is sentenced for theft, all the relevant facts should be taken into account, such as what led him to commit the crime, whether the stolen goods have been recovered, whether they can still be recovered, how much the victim lost, and whether any other factors make the crime worse or less serious. The court should also impose probation or admonition in cases where it finds it reasonable to do so. In all cases, the court should try to rehabilitate and reform the accused through punishment, and the punishment should not be retributive or exemplary. 

Frequently asked questions (FAQs) 

Can electricity be subject to theft under Section 378?

Electricity will not fall within the ambit of the term “movable property”, as has been defined in Section 22 of the Code, because it is an incorporeal property. Section 135 of the Electricity Act, 2003 provides for the theft of electricity. Further, in the case of Avtar Singh v. State of Punjab (1964), it was held that even dishonest abstractions of energy could consummate the offence of theft. We can conclude that even if electricity is subject to the offence of theft, it cannot be subject to Section 378 of the Code as special provisions have been given in the Electricity Act, 2003 for the offence of theft of electricity. 

Can data or information which is stolen fall within the ambit of theft?

An important case in which this discussion was held was Birla Corporation v. Adventz Investments Holding Ltd. (2019), wherein the Supreme Court held that the temporary removal or taking of photocopies of documents with sensitive information would amount to theft. The Apex Court went ahead and held that the information contained in the documents would be corporeal inproperty; thereby, the act will not only be due to the moving of the pages of the documents, which are movable property, but even the data contained in them will be movable property. However, if the information is stored on electronic media and is stolen afterwards, then Section 378 will not apply, and the Information Technology Act, 2000 will be invoked in such cases. 

References 

1. Ratanlal Ranchhoddas. Ratanlal & Dhirajlal’s the Indian Penal Code (Act XLV of 1860).]: Wadhwa & Co., 2007.
2. https://theindianlaw.in/punishment-in-ancient-hindu-and-mohammedan-law/ 
3. https://ideas.dickinsonlaw.psu.edu/cgi/viewcontent.cgi?article=1185&context=dlra 
4. https://chambers.com/articles/theft-article-introduction 

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