INTRODUCTION

In common usage, theft is the taking of another person's property without that person's
permission or consent with the intent to deprive the rightful owner of it. The word is also used
as an informal shorthand term for some crimes against property, such as burglary,
embezzlement, larceny, looting, robbery, shoplifting and fraud. In some jurisdictions, theft is
considered to be synonymous with larceny; in others, theft has replaced larceny.

According to S 378 of Penal Code, whoever, intending to take dishonestly any moveable
property out of the possession of any person without that person’s consent, moves that property
in order to such taking, is said to commit theft.

Punishment of theft- Section 379

For the offence of theft there is punishment of imprisonment of either description which may
extend to 3 years, with fine, or both according to the Indian Penal Code.

CONTENT ANALYSIS

Section 378 of PC reads:

Whoever, intending to take dishonestly any moveable property out of the possession of any
person without that person’s consent, moves that property in order to such taking, is said to
commit theft.

Explanation 1

A thing so long as it is attached to the earth, not being movable property, is not the subject of
theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.

Explanation 2

A moving effected by the same act which affects the severance may be a theft.

Explanation 3

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A person is said to cause a thing to move by removing an obstacle which prevented it from
moving or by separating it from any other thing, as well as by actually moving it.

Explanation 4

A person, who by any means causes an animal to move, is said to move that animal, and to
move everything which, in consequence of the motion so caused, is moved by that animal.

Explanation 5

The consent mentioned in the definition may be express or implied, and may be given either
by the person in possession, or by any person having for that purpose authority either express
or implied.

LEADING CASE LAW

In a leading decision of KN Mehra v. State of Rajasthan.1

FACTS

 The alleged theft was of an aircraft, which belonged to the government.

 Two youngsters, Mehra and Phillips, were cadets on training in the Indian Air Force at
Jodhpur. Phillips was discharged from the Academy on 13 May 1952 for misconduct.

 On 14 May 1952, he was due to leave Jodhpur by train.

 His friend Mehra was due for flight in a Dakota, as part of his training along with one
Om Prakash, a flying cadet.

 The authorised time to take off flight was between 6 am and 6.30 am on the morning
of 14th May.

ISSUES

 Mehra and Phillips took off,

1
AIR 1957 SC 369,(1957) Cr LJ 552 (SC)

2
 1. not a Dakota but a Harvard T-22,

2. before the prescribed time at 5 am

3. without authorisation and

4. without observing any of the formalities, which were pre-requisites

for aircraft flight.

 On the forenoon of the same day, they landed at a place in Pakistan about 100 miles
away from the Indo-Pakistan border.

 On 16 May 1952 at 7 am, both of them met the Indian Commissioner in Pakistan at
Karachi, and informed him that they had lost their way and force-landed in a field and
that they had left the plane there. They requested his help to go back to Delhi. The
Indian High Commissioner arranged for both of them to be sent back to Delhi in another
plane.

 While they were on their way to Delhi, the plane stopped at Jodhpur and they were
arrested and prosecuted for the offence of theft.

One of the main contentions of the accused was that if they had the inclination to take the
aircraft to Pakistan, they would not have contacted the Indian High Commissioner at Karachi
later. But the prosecution succeeded in proving that this apparent innocent move did not
necessarily negative their intention at the time of taking off. It may be that after reaching
Pakistan only, the impracticability of their scheme to get employment in Pakistan dawned upon
them and they gave it up. It was enough to constitute the offence that they had the dishonest
intention at the commencement of the journey. The fact that they took off Harvard T-22 plane
rather than the allowed Dakota, and left India at 5 am instead of the scheduled time of 6 am,
without waiting for Om Prakash, and that they also refused to respond to the wireless messages
from Indian aerodrome authorities at 11 am, showed that they had the dishonest intention to
take off a Harvard T-22 plane.

INGREDIENTS

The offence of theft under s 378 can be analysed and hence the essential elements to constitute
theft are as follows.

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1. It should be a movable property;

2. In the possession of anyone;

3. A dishonest intention to take it out of that person’s possession;

4.Without his consent and

5. A moving in order to such taking.

MOVABLE PROPERTY

 Section 22 of PC defines theft as including ‘corporeal property of every description

except land and things attached to the earth, or permanently fastened to anything which
is attached to the earth’

 Any part of the earth whether it be stones, or clay or sand or any other component when
severed from the earth is moveable property and is capable of being the subject of theft.

 As per the Explanations 1 and 2 attached to Section 378 of IPC, things attached to the
land may become movable property by severance from the earth, and that the act of
severance may of itself be theft.

In Suri Venkatappayya Sastri, Agent vs Madula Venkanna2

The only question is whether the stones in this case are "moveable property

It was held in the case that stones when quarried and carried away are "things severed from the
earth" and are "moveable property" and as such are capable of being the subject of theft. Before
they were quarried out they formed part of "the earth," and as such they were not moveable
property, but as soon as they were quarried out they were "severed from the earth" and became
"moveable property.

2
(1904) 14 MLJ 155

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In the case of Bandrappa vs State By Gadigenur Police3
It is very clear that as soon as petitioner has severed the iron ore from the land in order to
transport the same, it is to be said that he has committed a theft.

In the case of The Queen v. Tamma Ghantaya4, the Court (Turner, C.J. and Kernan, J.) referring
to salt formed spontaneously in a swamp said " We cannot distinguish this case from theft of
wood in a reserved forest, except that salt is actually a part of the soil, while trees are not; yet
things immoveable become moveable by severance and this would apply to severed parts of
the soil, e.g., stone quarried, minerals, iron or salt collected, as well as timber which has grown,
or edifices which have been erected on the land."

 A house cannot be the subject of theft, but there may be theft of its materials.

• Can Data Theft be covered under PC?

Since Section 378 P.C., only refers to “Movable Property” i.e. Corporeal Property, and Data
by itself is intangible, it is not covered under the definition of "Theft”. However, if Data is
stored in a medium (CD, Floppy etc.) and such medium is stolen, it would be covered under
the definition of ‘Theft’, since the medium is a movable property. But, if Data is transmitted
electronically, i.e.,

in intangible form, it would not specifically constitute theft under the PC.

“Data”, in its intangible form, can at best be put at par with electricity

With regard to Electricity, The Supreme Court has held in Avtar Singh vs State of Punjab,5 that
electricity cannot be considered to be a movable property and that s 378 by itself would not
include a theft of electricity. I t has also been held that dishonest abstraction of electricity
mentioned in the Indian Electricity Act 1910, is not an offence under the IPC, though it is an
offence under s 39 of the Electricity Act.

4
I.L.R. 4 M. 228
5
AIR 1956 SC 666.

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 ANIMALS

 Animals can become the subject of theft, for they can be classified as movables.

 In case of wild animals ,they are ferae naturae, there can be no absolute property.

 In case of Abandoned animals, they cannot said to be in the possession of anyone

In a case, when a man buried the carcass of a bullock suspecting it to have been poisoned and
another person dug it up and carried it away,it was held that no theft was committed because
the property and property in it were abandoned.

The removal of animals grazing in open lands where it had been left by the owner is theft. But
leading the animals to the pound is not theft.
However, if a person, the owner or a stranger, removes cattle from pound where they are
secured, is the only movable without paying the levied fees, he is guilty of theft as he deprives
the pound-keeper of his legitimate fees.

 HUMAN CORPSE-Sir James Stephen says that this object known to him which is
incapable of being a property.

Human body whether living or dead (except bodies, or portions thereof, or mummies, preserved
in museums and scientific institutions) is not movable property.

FISH

 Fish in running waters, such as rivers, and canals and in the lakes and seas are ferae
naturae and cannot be the subject of theft.

 So also fish in open irrigation tanks, or tanks not enclosed on all sides, where even the
right of fishing has been let out to a licensee are considered as ferae naturae and not
subject of theft.

In the case of Govindha Majhi v. Arobinda Kar,6 the accused has caught fish from the portion
of a tidal and navigable river licensed out to the complainant, he was held not guilty of theft

6
AIR 1950 Ori 106.

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based on the principles well stated in Krishna Reddy v Muniappa Reddy7:

As long as the water flows in and out of the pond, thereby enabling the fishes to enter and leave
it, the fishes are free and in a state of nature; and so no more belong to the owner but when
once the water has fallen to such a level that fishes cannot leave it, then they are trapped and
consequently in the possession of the owner of the pond. That being so, any person who takes
fish from that pond without the owners’ consent with the intention to cause him loss necessarily
commits theft.

Similarly, in Queen Empress v. Shaik Adam8, it was held that the tank from which the fish were
taken, was apparently an enclosed tank belonging to the municipality, the fish were restrained
of their natural liberty and liable to be taken at any time according to the pleasure of the owner
and were, therefore, subjects of theft. If the fish were unable to escape from the tank, they were
practically in the power and dominance of the prosecutor.

In Bairagi Rout v Brahmananda Das9, it was held that when during the rainy season fish escapes
from one plot to another demarcated by ridges of small height and are merged under the water,
it cannot be said that fish is the subject matter of theft.

In Chandi Kumar Das v Abanidhar Roy10,

It was held that the Fish in their free state are regarded as ferae naturae, but they are said to be
in the possession of a person who has possession of any expanse of water such as a tank, where
they live but from where they cannot escape. Fishes are also regarded as being in the possession
of a person who owns an exclusive right to catch them in a particular spot known as a fishery
but only within that spot. There can thus be theft of fish from a tank which belongs to another
and is in his possession, if the offender catches them without the consent of the owner and
without any bona fide claim of right.

7
AIR 1943 Mad 34.
8
(1886) ILR 10 Bom 193
9
(1970) Cr LJ 638 (Ori).
10
AIR 1965 SC 585

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 Water

It was held in Sheikh Arif11 case that the water running freely from a river through a channel
made and maintained by a person is not a subject matter of theft.

In Re Chockalingam Pillai12 case, it was held that running water in irrigation canals is the
subject of theft. The distinguishing character in making water as a subject matter of theft is
possession.

In Mahadeo Prasad case13, it was held that water when conveyed in pipes is reduced into
possession of the person and thereby it becomes the subject matter of theft.

 Cooking gas or water passing through pipeline can be a subject of theft, when the
accused fixed a pipe in the main line just before the meter, to avoid payment.

 Idols from the temples, paintings from museums and other public or private places are
subject of theft.

OUT OF POSSESSION
 The movable property which is subject of theft must be in the possession of the
prosecutor.

 The word possession is not defined in the IPC, though its nature in one aspect is
indicated in Section 27, wherein it is said that “….When property is in the possession
of a person’s wife, clerk or servant, on account of that person, it is in that person’s
possession within the meaning of this code.

11
(1908) ILR 35 Cal 437.
12
(1913) Cr LJ 131 (Mad).
13
(1923) ILR 45 All 680.

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  Explanation:—

 Salmond describes possession, in fact, “as a relationship between a person and a thing
the test for determining whether a person is in possession of anything is whether he is
in general control of it”.

 Possession exists in one whenever he has physical control, whether rightful or

wrongful, over a corporeal thing, possession is entirely distinct from property and either
may exist without the other.

 Thus, when an article is stolen though the thief has possession, the owner retains the
property.

 A movable thing is said to be in the possession of a person when he is so situated with

respect to it that he has the power to deal with it as owner to the exclusion of all other
persons, and when the circumstances are such that he may be presumed to intend to do
so in case of need.

 Possession may be de facto or de jure. The former is mere custody. A servant has only
mere custody of the articles which belongs to his master. For example, A, the master of
a house gives a dinner party; the plate and other things on the table are in his possession,
though from time to time they are in the custody of his guests or servants.

CONSTRUCTIVE POSSESSION

In certain circumstances, a person who has no actual physical control over a thing will be
deemed to have possession in the eye of law, which is called constructive possession. This is
also called de jure possession or possession in law.

For example, whenever he has entrusted the care of a thing to his servant, the physical control
of the servant does not amount to possession as against his master, but merely to custody and
as against other persons, it may amount to possession.

JOINT POSSESSION

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Where there are several joint owners in joint possession, and any one of them, dishonestly takes
exclusive possession, he would be guilty of theft.14 A co-owner of movable property with
another, whose share is defined, can be guilty of theft, if he removes the joint property without
consent of the co-owner.15 Similarly, if a coparcener dishonestly lakes the separate property of
another coparcener, he will be guilty of theft.16

 Mere custody will not amount to possession

This principle is expressly recognised in s 27, PC. So, where a lady who wanted a railway
ticket, handed the money to a stranger, who was near to the window of the ticket office, that he
might procure a ticket for her, and he ran away with the money, this was held to be theft, as
she never parted with the dominion over the money and merely used his hand in place of her
own. 17

 Temporary deprivation or Dispossession is also theft

In Pyare Lal Bhargawa v. State of Rajasthan,18 the accused was a superintendent in a

government office. At the instance of somebody, he got a file from the secretariat through the
clerk and took the file to his house for a day and made it available to a person to facilitate the
removal of some papers and the insertion of some. Thereafter, the file was replaced. The
question before the Supreme Court was whether the act amounted to theft. The Supreme Court
held that to commit theft, one need not take movable property permanently out of the
possession of another, with the intention not to return it to him. It would satisfy the definition
if he took any movable property out of the possession of another person, though he intended to
return it later. When the file was unlawfully taken away from the department, he deprived the
department of the possession of the file and caused wrongful loss to the department. So, it was
held that it amounted to an offence under s 378, PC. The Supreme Court held that the transfer
of movable property without consent of the person in possession need not be permanent or for
a considerable length of time nor is it necessary that the property should be found in possession

14
Virankutty v Chiyamu (1884) ILR 7 Mad 55.
15
Ramsharangat Singh v State of Bihar (1966) Cr LJ 856.
16
Sita Ram Rai (1880) ILR 3 All 181.
17
R v Thompson 32 LJ (MC) 50.
18
AIR 1963 SC 1094.

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of the accused. Even a transient transfer of possession is sufficient to meet the requisites of
theft.

DISHONEST INTENTION
 Intention is the gist of the offence.

 It is the intention of the taker at the time when he removes the article that determined
whether the act is theft or not.

 Section 24 of IPC says “whoever does anything with the intention of causing wrongful
gain to one person or wrongful loss to another person is said to do that thing
dishonestly”.

 The intention to take dishonestly exists when the taker intends to cause ‘wrongful gain’
to one person and ‘wrongful loss’ to another. Wrongful gain or wrongful loss must be
involved in dishonesty.19

Section 23 of PC reads as follows:

Wrongful gain:
‘Wrongful gain’ is gain by unlawful means of property to which the person gaining is not
legally entitled.

Wrongful loss:
‘Wrongful loss’ is the loss by unlawful means of property to which the person losing it is legally
entitled.

Gaining wrongfully, losing wrongfully.

A person is said to gain wrongfully when such person retains wrongfully, as well as when such
person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully
keep out of any property, as well as when such person is wrongfully deprived of property.

In the case of KN Mehra v State of Rajasthan20, It was held that a person can be said to have
dishonest intention if in the taking the property it is his intention to cause gain by unlawful
means of the property to which the person so losing is legally entitled.

19
KN Mehra v State of Rajasthan AIR 1957 SC 369, (1957) Cr LJ 552(SC).
20
AIR 1957 SC 369, (1957) Cr LJ 552(SC).

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It was also clear that the gain or loss contemplated need not be a total acquisition or a total
deprivation but if it is temporary retention by the person wrongfully gaining or a temporary
keeping out of property from the person legally entitled.

 When dishonest intention is totally absent, there is no theft.

 Taking another man’s property, believing, under a mistake of fact and in ignorance of
law, that he has the right to take, therefore, does not amount to theft.

 If the act done is not animo-furandi, it will not amount to theft.

Meaning of Animo Furandi - The intention to steal.

In HJ Ramson V Triloki Nath21, it was held that if a company under the agreement of hire-
purchase has reserved the right to seize it in the event of default in payment of installment and
default is made, then, the company is not entitled to retake its possession by removing it from
the hands of purchasers’ servant who had no authority either express or implied to give any
consent. If the company or its agents do so they are guilty of theft.

The legal possession of the lorry was vested in the purchaser and the company was not entitled
to recover possession of the lorry without the consent of the purchaser.

However, In K.A. Malthi v. Kona Bibbikutty, 22 The Supreme Court held that the possession of
a vehicle taken by the accused financer in pursuance of the hire-purchase agreement amounts
to theft as such resumption of possession is tainted with the requisite dishonest intention and
mens rea.

21
(1942) 17 Luck 663.
22
[(1996) 7 SCC 212],

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However, in Charanjit Singh Chadha v Sudhir Mehra,23 the supreme court did not hold the
financier who took back the vehicle for default in payements in accordance with the hire
purchase agreement guilty of theft as he lacked the element of dishonest intention.

WITHOUT CONSENT

 The taking must be without the consent of the person in possession.

 There can be no theft where the owner actually consents to or authorises the taking.

 Thus, where a debtor gives up property to his creditor and subsequently discovering
that the debt was time-barred, charged the latter with theft, the same was held
unsustainable in Musumat Piari Oulaiya.24 The consent may be express or implied, may
be given by the person in possession or by any person having for that authority either
express or implied.

MOVING OR TAKING

 There must be moving of the property with an intention to take it.

 As the essence of the offence consists in the fraudulent taking, that taking must have
commenced.

For instance, where a man lifted up and set on end a package of linen, which was
lying in a wagon and cut the wrapper to get at its contents, but was apprehended before
he had taken anything out; and where a pick-pocket got a purse out of the owner’s
pocket, but was unable to carry it away, because it was attached to his pocket by a
string, the judges held that there had been no theft ‘for a carrying away, in order to
constitute a felony [there] must be a removal of the goods from the place where they
were; and the felon must, for the instant at least, have the entire and absolute
possession of them’25

 However in the case of a post office letter carrier, the taking out of the bag in which
the letters were carried during delivery, and placing it in his own pocket was deemed
sufficient, the jury having found that he put the letter in his own pocket intending to

23
AIR 2001 SC 3721, (2001) Cr LJ 4255 (SC).
24
(1904) 1 ALJ 508.
25
Charry’s case East PC 556

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 steal it.26

 So it was held in the Madras decision Venkataswami,27

where a letter-sorter instead of handing a letter out for delivery in the usual course,
secreted it on his person, that he might give it to the delivery peon himself with a view
to

sharing the postage payable by the addressee; the high court ruled that by this act he
took

the letter out of the possession of the post office authorities without their consent for a
fraudulent purpose and therefore committed theft.

CONCLUSION

The actus reus of theft is usually defined as an unauthorized taking, keeping or using of
another's property which must be accompanied by a mens rea of dishonesty and/or the intent
to permanently deprive the owner or the person with rightful possession of that property or its
use. These ingredients are necessary to commit the offence of theft under section 378 of PC. If
any of these ingredients is not found, then it would not come under the purview of sec 378 of
PC and the accused cannot be punished under sec 379 of PC.

26 R V Ponyton L and C 247.

27
(1890) ILR 14 Mad 229.

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