This article has been written by Subhadeepa Sen, a student from the School of Law, Christ (Deemed to be University), Bangalore. In this article, the author has extensively discussed Section 380 of IPC and explored the ambit of the punishment provided therein. In addition, the author has also delved into the ingredients of the offence and analysed certain landmark judgments in that regard. 

This article has been published by Sneha Mahawar.​​ 

Introduction 

Whenever we come across news related to crimes happening across the country, we tend to reflect on the underlying reasons that can potentially give rise to such crimes in society. We also ponder over whether it is the consequences of social evils that can necessarily be conducive to an upsurge in crime rates. In numerous circumstances, a veritable spectrum of reasons can cause an individual to commit a particular offence for example, poverty or unemployment, however, on the other hand, it can also be certain psychological reasons for instance, greed; anger or jealousy can also play a role. This article talks about one such offence stipulated under Section 380 of the Indian Penal Code, 1860 (“IPC”) which is “Theft in dwelling house, etc.” The Section aims to be a protective measure and safeguards properties that are hoarded or kept in a particular house, tent or vessel. The commission of this offence laid down in the impugned Section, calls for stringent action in the form of punishment. The Section calls for imprisonment for a term that may extend upto seven years. The article further elaborates on the ingredients of the crime so committed and explores the ambit of the punishment. In addition, the article shall analyse certain landmark cases that shall shed light on what exactly constitutes a theft of property in a dwelling house, tent or vessel and the situations in which the impugned Section shall be attracted. 

What crime is defined under Section 380 IPC

Section 380 stipulates that whoever carries out the offence of “theft” in a building, tent or vessel that has been in use either in the form of a “human dwelling” or has been utilised as a “custody” of the property shall be liable for punishment under the impugned Section. For instance, P, a friend of Q, goes to her house and takes a cup lying on her dining table without her consent and knowledge, will be said to commit an offence under this section. The person charged under this Section shall be liable for simple or rigorous imprisonment for a term that may extend upto seven years. The offence is classified as a cognizable, non-bailable, non – compoundable offence, triable by any Magistrate. 

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The Section essentially talks about a ‘theft’ of some kind and is a part of Chapter XVII of Offences against Property i.e., ‘offences related to theft’ in the Indian Penal Code, 1860. Section 378 of the Indian Penal Code talks about what constitutes the offence of theft. Section 378 defines ‘theft’ as “Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property to such taking, is said to commit theft.” A person is said to commit ‘theft’ when he dishonestly takes any moveable property and in the course of that, moves the property from the possession of any person without the consent of that person. For example, A steals a car from B and later sells its parts. Here, A, with a dishonest intention takes the car out of the possession of B in order to sell its parts, as against his consent and knowledge. This constitutes theft. The Section has been elaborated extensively in five explanations and further substantiated by sixteen illustrations. 

It is noteworthy, that a ‘dishonest intention’ is an integral part of the commission of the offence. In the absence of dishonest intention, it will not be deemed as an offence amounting to theft. Section 24 defines dishonest intention in the Indian Penal Code as, anything that is done with an intention that will cause a wrongful gain to some person and a wrongful loss to the other.  This can be better understood in the form of an illustration. A owned an expensive vase and an exactly similar vase was owned by B too. However, due to an accident, B’s vase gets cracked. One day, when B comes to A’s house and sees the vase, B decides to take A’s vase in order to replace his cracked vase. B takes possession of the vase and thereby, dishonestly deprives A of the vase without his consent. Under the present circumstance, B has committed theft. However, when for a reason that is bonafide or in good faith, a person believes a particular property to be his own, and thereby, takes its possession with this belief, he will not be said to commit a theft. Hence, a dishonest intention is a prerequisite in order to charge a person with theft. 

Ingredients for Section 378 – theft

In order to charge a person under Section 378, there are certain ingredients that must be proven. These are as follows:

  1. The Section mentions a ‘dishonest intention’ to be an important prerequisite for the commission of the theft. 
  2. The nature of the property mentioned is that it must be a ‘movable property.’
  3. The moveable property must be taken out of the possession of another person.
  4. The taking out of the moveable property must be done without the consent of the other person. 
  5. When the property is moved to render its taking, it is said to be theft. 

Even in a situation, where the moveable property is taken out of possession for a temporary duration it shall still constitute the offence of theft. 

Dishonest intention

The dishonest intention is the most important ingredient for the offence of theft to occur. The intention will either be a wrongful gain to someone or cause a wrongful loss to someone. A person is said to be wrongfully gaining property when he gains it even though he is not legally entitled to it. On the other hand, a person is said to be wrongfully losing if the loss has been made to him unlawfully even when he is legally entitled to it. For instance, if A takes a watch from B against her consent and later sells it to C at a higher price. B is wrongfully deprived of her watch and A has wrongfully gained in the process even though he was not entitled to the same. 

Absence of consent 

A person is said to be giving consent to something when they are doing the act or allowing the act to happen by their own free will. Consent is not expressly defined by the Code, however, Section 90 of IPC mentions what shall not constitute a valid consent. In the circumstances in which ‘consent’ is given under fear of injury or under a misconstrued fact, or has been obtained through intoxication or during unsoundness of mind when the consequences of the same cannot be known by the person, it is deemed that there is no consent. For instance, P allows X to take his clothes and sell them when they become unusable by P. After a few days, X sells the clothes to S. P cannot hold X liable for the same since P consented to the act of selling the clothes. 

Consent when given verbally or in writing is known as an “express consent.” When a doctor undertakes an uncertain surgical procedure and takes permission in writing to perform the same from the patient, however, he later dies in that process. The doctor will not be held liable. Because the risk was taken voluntarily by the patient and express consent was taken from him. However, when the consent is deemed from an act or conduct of a person or is presumed under a certain circumstance, it will be known as implied consent. For instance, when a customer enters a restaurant and orders food, it is deemed that he is going to pay the bill for the food he orders. This is implied consent. 

Moveable property

The term ‘Property’ has been defined by various jurists. The essence of the term property can be understood as the exclusive right of ownership that a person possesses over a material as well as an immaterial object. It is inclusive of all the legal rights that a man has over the property. Hence, a property can be corporeal (tangible) or incorporeal (intangible for example, patent, trademark, etc.,) in nature. Similarly, it can be movable as well as immovable and privately owned or publicly owned. However, for the present discussion, we shall restrict ourselves to corporeal and movable properties. 

Moveable property has been defined under Section 22 in the Indian Penal Code. Movable property essentially shall mean any materialistic or tangible property, for example, cars, gold, and even animals in possession of their owners excluding land and the properties that are permanently attached to the earth. Properties that are permanently attached to the earth or are fastened to anything affixed to the earth shall be termed as immovable property.  Consider an illustration wherein R entrusts his coat to his manager S. S later takes the coat to a marketplace and sells it without the consent of R. This shall amount to theft. Similarly, if a pet is entrusted to someone by the owner and the person later takes the pet away and flees, he shall be charged under the Section. 

Moving the property

The dishonest intention must be present as soon as the property is moved. Hence, an act of theft shall be deemed complete only when the property is moved dishonestly. The movement of the property must be in order to take it. For instance, using treats to entice the animals to follow someone in order to make money using them. As soon as the animals start to follow, they go out of the possession of the owner and against his consent. Hence, it will constitute theft. 

Possession must be taken from another person

Possession, in essence, would mean exclusive ownership or control over a property. Hence, an act done to take property out of the possession of the property holder shall constitute the offence of crime. In circumstances, wherein the property is not in the possession of anyone and is taken by someone, it will not be said to be the offence of theft. Hence, wild animals will not come under the purview of theft. However, a ring belonging to A when taken out of his possession by B against his consent will constitute the offence of theft. 

Essentials of crime under Section 380 IPC 

For an offence to be constituted as a crime under Section 380, must have the three essential ingredients which are as follows:

  1. There must be a commission of theft.

In order to constitute a crime under the impugned Section all the ingredients of theft must be complied with. In simple words, a person must take movable property from the property holder with a dishonest intention of depriving the property holder of the possession of the movable property and against his consent. For instance, B takes A’s coat believing it to be his under a mistake of fact. B shall not be liable since a dishonest intention is a prerequisite to constitute the offence of crime.

  1. The commission of such theft must have taken place in a building, tent or vessel.

The term ‘building’ in ordinary parlance, would mean “any walled and roofed structure that is principally above the ground and affixed to a permanent site.” Hence, in essence, shall be used to shelter any usage or occupancy.

In the case of Yash Pal and Anr. v. State of Haryana and Anr. (2017), it was observed by the High Court of Punjab and Haryana that, even though the word ‘building’ has not been defined under IPC, Section 442 which refers to Section 380 of the Code, defines the term “building” in its ordinary and usual meaning, i.e., as ‘a block of bricks or stonework covered in by roof’ thereby elaborating the fact that there must be a “constructive masonry” on the sides of the premises in order to construe it as a building. This in essence suggests that there must be some sort of structure. Hence, a building along with the words ‘tent’ and ‘vessel’ must have a structure as a mandate under the section, that aims to provide some level of security to the people living within it or for the property that has been kept there for custody. The term ‘vessel’ has been defined under Section 48 of the Indian Penal Code as anything that has been construed in order to facilitate conveyance by water of either human beings or of property shall mean a vessel under this Code. As per the Merriam-Webster dictionary, a tent means, “a collapsible shelter of fabric (such as nylon or canvas) stretched and sustained by poles and used for camping outdoors or as a temporary building.”

  1. Such a building, tent or vessel must be used as a human dwelling or for the custody of the property. 

The case of State of Gujrat v. Vedva Vaghari Moti Nagji and Anr. (1971), the High Court of Gujarat observed that “anything that is utilised exclusively for the purpose of habitation of a person or a group of persons including a family signifies as a building.” Thus, such a building, tent or vessel within the meaning of the Section shall denote those structures that are deemed to be utilised for human living or where a property is stored for safe custody. It is also to be noted that the word ‘custody’ implies a sense of security and is very different from the word ‘keeping.’

The case of State v. Nihal Singh (1971) further elaborated on the essence of the term ‘human dwelling.’’ It was held by the Punjab and Haryana High Court that, even though, through the ordinary dictionary meaning the term ‘dwell’ can be understood as to be able to “remain as in a permanent residence” or “to have one’s abode to reside,” it is not the only elucidation it can have. It has a multitude of meanings and a variety of ways for its usage. This meaning is still construed today i.e., “to abide, remain or linger for a time in a place or condition.” Hence, as per Section 380, the term ‘dwelling’ would mean a building, tent or vessel where someone “resides, remains or lingers” irrespective of whether it is permanent or temporary. 

Punishment for the crime under Section 380 IPC 

The cardinal principle of criminal jurisprudence states that the prosecution is duty-bound to establish its case beyond a reasonable doubt. In order to facilitate the same, it must produce compelling evidence that cogently proves its case. The punishment prescribed under Section 380 is as follows: A person charged under the impugned Section shall be liable for simple or rigorous imprisonment for a term that may extend upto seven years and will also be liable to pay a fine. The nature of rigorous imprisonment is that the person sentenced under the same must perform hard labour while in prison whereas in simple imprisonment, the person may have to perform simple tasks. Since theft under Section 380 is an aggravated form of theft, a punishment higher than Section 379 has been prescribed. 

Whether it is a bailable or non-bailable offence

Section 437 of the Code of Criminal Procedure,1973 prescribes bail procedure in case of non-bailable offences. In offences that are ‘non-bailable,’ the person charged under the same does not possess the right of bail and it is completely upon the discretion of the court of law whether to grant the bail or not. Since this is discretionary power conferred upon the court of law, a judge takes a lot of care and caution in a bail matter. It must strike a balance between the interests of the society at large and an individual’s liberty. Generally, offences that are serious in nature, are non-bailable. An offence committed under Section 380 is non-bailable. The graveness in the offence can be due to the fact that a property that has been stolen could be of high value. Theft of the same can cause an irreparable loss to the property holder. 

Whether it is a cognizable or non-cognizable offence

Sections 155 and 156 of CrPC deals with non-cognizable and cognizable offences respectively. Section 2(l) of CrPC defines what is a non-cognizable offence. In the case of a non-cognizable offence, a police officer does not have the authority to arrest someone without producing a warrant. However, in cases of cognizable offences which has been defined under Section 2(c) of CrPC, power has been conferred upon the police officer to arrest without having to wait for the arrest warrant to be produced from the court. Section 380 is a cognizable offence meaning, the gravity of the offence is such that, an arrest against a person can be initiated without a warrant. 

Whether it is a compoundable or a non-compoundable offence

Offences that have the ability to be fixed or remedied by coming into a mutual agreement are referred to as compoundable offences. The parties can mutually agree to effect a compromise while the case is undergoing trial, this is called ‘compounding’ and the offences in which this is permissible, is known as compoundable offence. In this process, further trial is discontinued. Generally, only offences that are of a less serious nature and do not put the state’s well-being or society’s peace at stake shall be a compoundable offence. Section 380 is a non-compoundable offence because it has a tendency to be heinous and might have an effect upon the state’s well-being. 

Important case laws

The State v. Nihal Singh and Anr. (1971)

In this case, luggage was stolen from the waiting room of the railway station. Therefore, the issue that arose was, whether a ‘waiting room’ of the railway station comes within the purview of human dwelling under Section 380 of the Code. The contention was with the meaning of a human dwelling. It was held that human dwelling is a place within which a person “lives, remains or lingers” which can either be for a temporary or permanent duration. Hence, a waiting room at a railway station will constitute a ‘building used as a human dwelling’ and any property stolen from there, would constitute an offence under Section 380 and will be punishable. 

K. E. Lokesha and Ors. v. The State of Karnataka (2012) 

In the present case, the property holder, a couple, found their back door open and an unzipped suitcase with some articles missing from it. The accused was charged under Section 454 of the Indian Penal Code, 1860, along with Section 380 of the IPC. Section 454 of IPC provides punishment for lurking house-trespass or house-breaking with the objective of commissioning of an offence, The Karnataka High Court held that, in order to facilitate a conviction under Section 454, a separate conviction under Section 380 is not required since Section 454 is inclusive of Section 380 under IPC.

Ratna Alias Ratan Lal and Anr. v. State of Rajasthan (2014)

In the present case, some unknown persons entered the victim’s house by breaking the lock of the house. It was alleged that a lot of silver and gold items were stolen from there. It was later stated in the report that the articles stolen along with cash amounted to Rs. 64,000. During the investigation, stolen articles were recovered from the accused and they were charged under Sections 454 and 380 of IPC. They were sentenced to a punishment of rigorous imprisonment for two years and five years respectively, along with a fine of Rs. 2500. 

Dr. Manoj Bhavarilal Chopda v. The State of Maharashtra and Anr. (2016)

In the present case, a belt was suspected to be stolen by a person from a shop. The property holder had a shop in the Chhatrapati Shivaji International Airport, Mumbai. The shop had a lot of different items ranging from accessories, belts, handbags, etc. One day, one of the employees of the shop found a leather belt missing and as a result, CCTV was checked. The CCTV footage showed the accused taking the belt and putting it in the pocket of his blazer. This offence was registered under Section 380 of the IPC, however,  a petition was filed by the accused that, a settlement was entered into by the property holder and the accused wherein, the accused paid Rs. 10,500 which was the price of the belt and along with Rs. 10,500 as a fine. Hence, the FIR was quashed. It was observed by the Bombay High Court that, for an offence to be made out under Section 380 a ‘theft’ from a building, tent or vessel used as a human dwelling or as a custody for the property needs to be proved. Hence, ingredients of theft i.e., Section 378 of the IPC also need to be incorporated. There must be a dishonest intention in the removal of the movable property against the consent of that person. And since the accused has paid an amount of Rs, 21,000 and the same was accepted by the property holder, no dishonest intention on the part of the accused can be garnered from the facts, additionally, the CCTV footage was inconclusive. Hence, the FIR was quashed. 

Recent case laws related to Section 380 of the IPC

Anjani Gupta v. State (NCT of Delhi) (2022) 

In the present case, a marriage was solemnised between the petitioner and the son of the respondent. Soon after marriage, it was alleged that the petitioner was tortured and harassed for dowry. Moreover, the petitioner was also humiliated by her in-laws who mistreated her for issues in addition to making dowry demands. The respondent in the present case, filed a complaint under Section 380 of the Code alleging that the petitioner had stolen certain documents in the form of letters that were under his deemed possession during his absence from the house. The Delhi High Court held that, for a case to be made out under this Section, there must be prima facie ground. In the preliminary stage, no dishonest intention can be established on the part of the petitioner. The actions of the petitioner do not construe the fact that there was a dishonest intention on the part of the petitioner and hence, the ingredients of Section 380 were not satisfied. Hence, the petition was allowed.

Imran Khan v. State of Maharashtra (2019)

In this case, the petitioner was alleged to have stolen certain gold ornaments and some cash. As the complaint was lodged, the petitioner was arrested and in his possession, the stolen gold ornaments were found. Additionally, Rs. 25,000 worth of cash was also recovered from him. The matter went for trial and the petitioner was convicted under Section 380 of the IPC. It was contended by the petitioner that there was no evidence to convict him. The High Court of Bombay then held that the petitioner possessed the gold ornaments and cash which were seized from him and he was unable to justify why he had them. The Court cited Section 114 of The Indian Evidence Act, 1872  which stipulates that the Court can presume certain facts to be true. In the current instance, the inability of the petitioner to invalidate the presumption mentioned under Section 114, his conviction was upheld by the honourable High Court. 

Conclusion

India has a very bright future taking into account the strives it is taking, be it in the international forefront, with the technological revolution ranging from the introduction of AI and 5G, unending participation of women at every sphere possible and not forgetting, the ever so dynamic judiciary of our country. The road ahead does seem demystified however, the crimes that still plague our society need to be curbed. This would require an undeterred approach and a stringent framework that will help in the eradication of such evils that disrupt the wellbeing of the society at large. 

As we understood one such crime in the article above at length, it becomes pertinent to briefly touch upon the essence of the same for clarity. An offence under Section 380 must fulfill the conditions of theft under Section 378 of IPC. This involves taking someone else’s movable property with a dishonest intention to wrongfully deprive him of possession of the property against his consent. The property must be taken from a building, tent or vessel that has been used as a human dwelling or as a possession of the property. Such offences, even though can seem to be trivial in comparison to grave offences such as rape or murder, what must be understood is that, such offences too can lead to devastating consequences and irreparable loss to someone. No crime should be taken lightly because any such commission or omission will have an effect on the person so affected by such commission or omission. Theft is a serious offence and the legal framework in India has in place to punish those who engage in the offence of theft shows the gravity of the same. Individuals ought to be more aware of their rights and most importantly, their responsibility towards society in order to deter such offences from happening.

In conclusion, the act of taking someone’s property and depriving them of their possession against their consent not only amounts to a violation of their right but also constitutes an act of criminal nature that must not be condoned. If found guilty of the same, they should be punished accordingly. 

Frequently Asked Questions (FAQs) 

Can a person be arrested for theft without a warrant?

Yes, a person can be arrested for theft without a warrant since it is a cognizable offence and the police has the right to arrest in such a case.

Is theft a compoundable offence?

Theft is a compoundable offence i.e., the dispute can be resolved by means of settlement between the parties at the will of the property owner.

What is the difference between theft and criminal misappropriation?

In case of theft, the intention is dishonest right from the beginning, whereas in case of criminal misappropriation, the dishonest intention might develop later. In case of theft moving the property itself is an offence however in case of criminal misappropriation that is not enough. The accused is required to dishonestly convert it to its own use.

References 

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