This article has been written by Samarth Suri, from Symbiosis Law School, Noida and modified by Abanti Bose, pursuing B.A.LL.B(H) from Amity University Kolkata, India. The article briefly talks about the offences of theft, robbery and extortion and also enlists the landmark cases regarding these offences. These are offences relating to moveable property as a whole.
The offences of theft, robbery and extortion come under Chapter XVII of the Indian Penal Code (hereinafter, The Act), under offences Against Property. Property has been one of the most essential constituents of human life since the pre-medieval world. When the constitution was initially made the right to property was even a fundamental right under Article 19(f) of the Constitution of India, but subsequently was made a legal right under Article 300-A. The right to protect this invaluable entitlement of humans leads to the making of such laws. All three of the offences have been critically analyzed and the differences between them have also been construed.
Theft under the IPC
The crime of theft has been defined under Section 378 of the Act. It defines the crime of theft as:
- Whoever Indenting to take dishonestly
- Any moveable property
- Out of the possession of any person
- Without the (express or implied) consent of that person
- Moves that property in order of such taking
Is said to commit theft.
For analysing the crime of theft, each of its parts must be construed. Section 24 of the Act defines the term dishonestly as “doing something with the intention of causing a wrongful gain or wrongful loss”. Therefore only stealing something dishonestly will be regarded as theft under this section. Where in a case cattle were seen as trespassing and causing damage on one’s land, were seized and taken to a cattle pound, it was not regarded as theft as there was the absence of a dishonest intention.
Similarly taking the property out of the possession of a person, even temporarily, will constitute theft, illustration (l) of Section 378 makes this point clear by stating that the watch was taken by A that belongs to Z, without Z’s and with the intention of keeping it amounts to the criminal offence of theft. However, there is a fine line that needs to be drawn here. In the case of Gopinath Naik v. State, it was held that keeping the owner out of the possession of the goods, not with the intention of causing any harm whatsoever, but just for the purposes of mental anxiety, will not constitute theft.
Illustration (p) of the similar Section which states that A taking in good faith the property belonging to Z, establishes that a Bona Fide claim will not be regarded as theft. That is, if a person takes the moveable property of another in the false conception that it is his own, it would not amount to theft.
The Property must be moveable
The property that is subject to theft must be moveable, this has been explained under explanation(1) to the Section. Anything that is attached to the earth, cannot be subject to theft because it is not moveable property in the first place. However, anything that is severed from the earth, at that moment itself becomes moveable property, the act of severing it in itself is tantamount to Theft. For example, a tree in the first place is not subject to theft, but as soon as it is severed from the Earth it becomes a moveable property.
Ownership, Possession and Custody
First, it is important to construe the difference between ‘possession’ and ‘custody’. Having the possession of a property is dealing with it like its owner. The person in possession will have authority over the property to the excursion of others. Possession is the actuality or objective realisation of ownership. On the other hand, a person who only has custody over the property cannot deal with it like its owner, he merely keeps it. A custodial guardian cannot partake with the possession of the property.
Also, Illustration (g) to the Section explains that one cannot steal a property that is in nobody’s possession. This concept has also been applied to dead bodies, as they don’t have any particular possession. Therefore the stealing of a buried body will not come under the definition of Section 378, however, its criminalization has been given effect under Section 279 of the Act, which deals with offering indignity to a human corpse.
The property that is stolen, must be removed without the consent of the person, express or implied. Illustration (m) and (n) make this point clear. Whereas a person goes to the library of his friend, with whom he is on good terms with and borrows a book without the consent of that person, with the intent of returning it afterwards. It will not be regarded as theft as the book was taken under the implied consent of the other party and there is no dishonest intention attached to it.
Movement of such property
The movement of such property should be made out of the possession of the person who has it. The physical carrying off of such property is not essential. If a person A puts bait in his pocket and therefore lures the dog to come his way with the intent of dishonestly taking the dog out of the possession of its owner, he is said to have committed theft.
It is also not essential that such movement of the property may be of permanent character, if a person hides any moveable property in the house of the person with the internet that the other may not find it, it will constitute theft. It is not necessary that the person stealing the property should gain something out of it.
Necessitas inducit privilegium quo ad jura privata, this Latin maxim quite literally allows the formation of a privilege based upon necessity but has no application in criminal law. Meaning that if a person steals some property out of bare necessity and with the intent of helping him with his penury, the law will allow for no such excuse. Furthermore, Section 379 of the Indian Penal Code states the punishment for theft, it lays down that whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years or with fine or both.
Robbery under IPC
All robberies are either Thefts or Extortions. Robbery has been defined under Section 390 of the Act.
The offence of theft amounts to robbery under the following circumstances :
- When in order to commit theft, or in attempting to commit theft
- The offender to that end voluntarily causes or attempts to cause to any person
- Death or
- Hurt or
- Wrongful restraint
- Or fear of either of these
Quantum of time at which the constituents of Robbery happen or their fear thereof:
Even after a theft has taken place, commission of death, hurt or wrongful restraint will give rise to robbery for example, if a person after removing the property from possession, slaps the appellant, for scaring him and so that he does not alarm the people in the vicinity, it will amount to robbery under the Section.
In Kusho Mahton and Anr. v. State of Bihar, the accused while carrying away the stolen property exploded a cracker to frighten the inmates who were trying to pursue him, this was rightly held as robbery under the Section.
The offence is robbery is cognizable, non-bailable and non-compoundable. Punishment for robbery is imprisonment for up to 10 years and fine. If committed on the highway between sunset and sunrise, the imprisonment may go upto 14 years as stated under Section 392. Punishment for attempting to commit robbery is upto 7 years as laid down in Section 393.
Extortion under IPC
Extortion has been defined under Section 383 of the Act:
- Whosoever intentionally puts any person in the fear of any injury to that person, or to any other;
- Thereby dishonestly inducing that person so put in fear, to deliver to any person;
- Any property or valuable security; or
- Anything signed or sealed that may be converted into a valuable security.
To extort means to obtain by show of force or threat. Walker in his book ‘The oxford companion to Law’ stated that extortion may be defined as the crime of dishonestly taking some property from a person, which are not legally due, particularly by the use of threat. Extortion may be defined as the middle ground between the crimes of theft and robbery. The punishment for the crime of extortion is 3 years imprisonment, or fine or both.
The Supreme Court in R.S Nayak v. A.R Antulay explained in detail what might amount to extortion. Before a person is said to be put in the fear of injury there must be something that the accused is alleged to do or not do, which he is legally bound to do. Meaning that in case if a person promises to do a thing which he is not legally bound to do, saying that he will not do it unless money is paid to him, that will not amount to extortion.
Difference between theft and robbery
Robbery is a subset of a kind of theft. If at the time of committing theft the offender causes or attempts to cause death, hurt or wrongful restraint or fear of any of these, he is said to have committed robbery. In theft, there is no question of overpowering of will, whereas there is a presence of such when theft is robbery. There is no element of fear in case of theft, whereas in robbery the element of fear is present.
Difference between robbery and extortion
Robbery is only a subset of a type of extortion. The basic formulation of both robbery and extortion is the same, however, while at the time of committing extortion the offender puts the victim or any other person in the fear of instant death, hurt or wrongful restraint and then in pursuance of the same commits extortion.
Difference between theft and extortion
In theft, the offender takes the moveable property without the owner’s consent. In extortion, such consent is wrongfully obtained, by putting that person or any other person in the fear of injury. In case of theft, the question of overpowering of will does not even arise because the property is taken out of the possession of the owner deceitfully however there is overpowering of will in case of extortion. theft can only be committed with regards to moveable property, whereas extortion can also be committed in case of Immovable property. In theft, there is no delivery of property as such, whereas delivery of property exists in case of extortion.
In the K.N Mehra case, it was held that it is not important that the offender takes the property permanently, even temporary taking of the property may be defined as theft under the section. In Nagappa v. Devu, it was held that if a person takes the property of another believing it to be that of his, it will not be regarded as theft because there is no Dishonest intention.
The theft of electricity is given effect under Section 135 of the Indian Electricity Rules, 1956. Although electricity is not subject to theft under Section 278 of the Act, it has been given such effect by a legal fiction that has been created under Section 39 of the Electricity Rules. In Mahalakshmi Spinners Ltd v. State of Haryana, it was held that since theft of electricity is covered under a special act, it cannot be given effect under the IPC and that any such usage by the prosecution will be to overcome the likely objection of the accused, that why the complainant was filed instead of registering an FIR. The law of the Supreme Court is well settled in this regard that a special law will prevail over the general law.
Troylukho Nath Chowdhry v. State defined what might be considered as consent for the purpose of Theft. In this case, the owner of the property through his servant helped the offender commit theft so that he would serve his punishment. It was held in this case that while committing theft the offender had the consent of the owner and thus would not be liable for theft under the Section.
All three of these offences form the basis for how property entitlement is retained. The stringent application of laws and the plethora of precedent also allow for such protection of property, which is the least to say sacrosanct in nature.
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