theft and Extortion
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This article is written by Parth Verma, a first-year student at Symbiosis Law School, NOIDA. The author here explains in detail about theft and extortion and the difference in between these two terms. The author here helps in defining the thin membrane which cuts these two terms apart.

Theft

Section 378 of the IPC 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”. There are five explanations to the said definition, mentioned in the code (IPC) which are further illustrated by 16 examples.

Hence we can say that section 378 of the IPC defines ‘theft’ as the dishonest removal of moveable property ‘out of the possession of any person’ without the consent of that person.

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Intention

Intention (be it in any form, like dishonesty) in theft plays a major role. Hence, 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, B commits theft, in as much as he takes it dishonestly. Thus, it can also be concluded from the above situation that a person can be convicted of stealing his property if he takes it dishonestly from another.

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 taken, cannot be dishonest. Thus, such taking cannot amount to theft.

Fine For Theft

Section 379 of the IPC, penalizes ‘theft’. It lays down the punishment for theft as either imprisonment for a term (which may extend to three years), or with fine, or both.

Ingredients for Theft

Theft has the following defining ingredients which must be proved in a given case, namely:

  • Dishonest intention to take the property;
  • The property must be moveable;
  • It should be taken out of the possession of another person;
  • It should be taken without the consent of that person;
  • There must be some moving of the property to accomplish it’s taking;
  • In the name of justification to theft, if a man in extreme want of food or clothing steals either to relieve his present necessities, the law allows no such excuse to be considered.

In other words, as per law, one can’t steal no matter what.

Movable property

The subject matter of theft must be moveable property. It must not be a static one (immovable property). Moveable property is defined in Section 22 of the IPC.

Animals

While mentioning above about the movable property in section 378, it also includes ‘animals’ in its definition. The section itself explains the matter related to animals. 

Any animal which is a pet, i.e. any animal within the possession of the owner is considered to be the property of the owner. Any property, which is taken away from the owner without the consent of the owner, 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.

Section 379 of IPC as mentioned earlier, quotes punishment for theft as imprisonment for a term up to three years, or fine, or both.

As in any other theft case, the procedure here remains the same. When a person

approaches the police station with a complaint regarding the theft of an animal (pet), the complainant must give a detailed description of the lost animal and if possible, along with the photograph. It should be immediately filed as an F.I.R, a copy of which should be duly signed, stamped and dated, along with the time and should be handed to the complainant. The duty officer of the police station is responsible for making all the necessary entries. The complainant has the right to file an F.I.R. Hence animals under movable property’s definition are capable of theft.

Fish

Fish in their free state are regarded as ferae naturae (a Latin word meaning, of a wild nature. Animal (roaming freely) is not the subject of absolute ownership. A qualified property in such animals might be acquired by taking or taming them or while they are on one’s estate), but they are said to be in the possession of that person who has possession of any area full of water like a tank. Fishes are also regarded as being in the possession of a person who owns an exclusive right to catch them in a fishery, but only within that spot. Thus, theft can be said to have been committed if fish from a tank which is in the possession of its holder, is caught by the offender without the consent of the owner.

Human corpse

Dealing with a human corpse in IPC can be considered to be a special case. There can be many arguments to support this statement like a dead body is not a “person” in the eyes of the law. Hence, it not being a person, removal of moveables from a dead body can not amount to theft. To be considered theft, the movable property has to be taken out of the possession of any person without his consent and a dead body is not a person. Removing ornaments from the dead body hence, can not be equated to the removal of ornaments from the possession and consent of a person. However, the proper provision to deal with this kind of a case is Section 403 of IPC (Criminal misappropriation).

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.

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”. Although there are many kinds of possessions, some of the most important ones are constructive and joint possession.

Constructive Possession: It refers to situations where a person has no hands-on custody of an object. It can also be said that constructive possession exists where a person knows an object and the ability to control it (object), even if the person has no physical contact with 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.

Dishonest Intention

Intention (be it in any form, like dishonesty) in theft plays a major role. Hence, 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.

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.

One of the ingredients to the offence of theft is dishonest intention to take property. The intention is one of the most important deciding factors which helps in making sure that the given act is theft. The intention to take dishonestly must exist at the time of the moving of the property.

Without Consent

For better understanding on the concept of free consent and what constitutes of free , please click here. 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.

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

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.

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.

Punishment for Theft

Section 379 of the IPC establishes 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, Section 380 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.

Aggravated Forms of Theft

Robbery

According to Section 390 of IPC, there is theft in every robbery. In other words, robbery is an aggravated form of theft. Theft essentially means to take a movable property out of a person’s lawful possession without obtaining his consent. Robbery generally takes place when, while committing theft, the offender, either attempts to actually cause or merely cause fear of instant death/hurt/wrongful restraint to any person.

Thus, theft becomes robbery when the offender commits any of the above acts while committing theft. It can also happen when he completes the theft and tries to move the property away.

Dacoity

Dacoity is the aggravated form of robbery which inturn is an aggravated form of theft. Dacoity is said to take place when robbery is committed by 5 or more people and they all share common intention.

Extortion

In literal terms, extortion refers to the illegal practice of obtaining anything by the means/usage of threat or force. Section 383 of IPC defines extortion as, “whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property, or valuable security or anything signed or sealed which may be converted into a valuable security, commits extortion”.

For example;

If A threatens to publish a defamatory statement concerning Z unless Z gives him money. A thus induces fear in Z to give him money. Hence, A has committed extortion.

If X sends club-men to threaten Z unless Z signs and delivers the required bonding to the club-men. Here X commits extortion.

If X threatens Z that he/she will keep the child of Z under wrongful confinement and tells Z that it can be avoided only when Z signs and delivers the promissory note to X. This note states that Z needs to pay certain money to X. Here, X commits extortion.

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Ingredients

For any offence to be extortion it must have the following ingredients:

  1. Putting a person in fear.
  2. The fear so caused must be a fear of injury either to himself or to people of his interest.
  3. The fear must be caused intentionally.
  4. As a consequence of the exercised fear, the person put in fear must be induced by the offender to deliver any property or any valuable security or anything signed or sealed to any person which is capable of being converted into a valuable security.
  5. The offender must act dishonestly in doing so, i.e., he must act to cause wrongful gain or wrongful loss.

Theft and Extortion: Distinction

The offence of extortion differs from the offence of theft in many ways as these two terms are entirely different from each other. The following are some differences:

Delivery of property is a major distinguishing factor when it comes to distinguishing between theft and extortion. In theft, the property is removed or taken away without the consent of the person who has possession of the concerned property. In the case of extortion, there is a delivery of property with consent which is wrongfully obtained, by inducing fear.

Immovable objects and moveable objects both can be made the subject matter of extortion. However, in case of theft, and only movable object can be the subject matter.

Another important distinguishing factor is the mode of delivery of the property:

In case of theft, the property is taken by the offender without the consent of said property’s holder. Hence we can conclude that the property in case of theft is delivered by the offender to himself. However, in case of extortion, the property is delivered to the offender by the person having possession of the said property because he/she is induced to fear of injury either to him/her or to the person of his/her interest. Hence, the delivery of property in extortion is done by obtaining the consent of the property’s holder, but wrongfully.

Sri Hari Singh Gour in his book, “The Penal Law of India” has explained and distinguished the offence of extortion in the following words: “The intimidation by which the extortionist dishonestly victimises another is the principal distinguishing feature of the offence which is otherwise allied to cheating and theft and other offences of which the object is dishonest deprivation of property”.

The offence of extortion is more like cheating than like theft since cheating is also capable of being committed in respect of immovable objects.

In a nutshell, it can be concluded as:

S. No. Differential Basis Theft Extortion
1. Defining Section

(In IPC)

 Section 378. Section 383.
2. Consent No consent is obtained. Consent is obtained, wrongfully. 
3. Property Only moveable property is the subject of the offence. Both moveable and immoveable property may be the subject of the offence.
4. Element of Force No force is used. Force is used.
5. Factor of Fear No factor of fear exists. A factor of fear does exist.
6. Scope Narrow: as it covers only the cases of movable property. Wide: as it covers any kind of property, valuable security or anything that may be converted into a valuable security.
7. Effect Property is dishonestly removed. Property is delivered, due to fear of injury.

Conclusion

Hence, we saw that Theft and Extortion are two entirely different things, despite their similar appearance. Both have different ingredients. The intention is the gist of theft, whereas it’s not the case with extortion. We saw what is possession. Now it is clear that larceny is illegally taking away somebody’s personal property, with a depriving intention. Theft, on the other hand, is an act of taking of any property with an intent to deprive its rightful owner. Hence, we can conclude that larceny is a kind of theft restricted to personal property. Punishment for both, theft and extortion under IPC is either imprisonment of three years or fine or both. Aggravated forms of theft include robbery and dacoity. An ethical message to the readers, let’s become that generation in which these terms don’t exist. Let’s not be a mere paper generation who can write on paper good things, but let’s be doers of the word. Let’s create an atmosphere where we don’t find such a term’s usage anymore. Let’s be the best citizens the world has ever seen. Let’s do our job of law, to the best level possible. Let’s give this world, new hope. Let’s be a new hope-giving light to this world. Let’s be that source of light that shines forever and in whose light nations come. Nations receive the glory which we carry. People get enchanted when they come to India and be thrilled by our country and be like this is the kind of country we want ours to be. On this note I conclude my article.

References

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