The property must be movable; 2. The property must be taken out of possession of another person resulting in wrongful gain by one and wrongful loss to another; 3. The accused must have a dishonest intention to the property; 4.
Taking must be without that person’s consent (express or implied); 5. The property must be moved in order to such taking i.e., obtaining property by deception. 1. Movable Property: Movable property is defined in Section 22, IPC 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’.
It is expressly stated by explanations 1 and 2 of Section 378 that things attached to the land may become movable property by severance from the earth and that the act of severance itself will be theft. Illustration (a) shows that when A cuts down a tree on Z’s ground with the intention of dishonestly taking the tree out of Z’s possession without his consent, A is guilty of theft. Extraction of teak timber without licence amounts to theft.
It is theft to gather salt spontaneously formed on the surface in a salt pan. Any part of this earth whether it be stones, or clay or sand or any other component when severed from the earth is movable property and is capable of being the subject of theft. A house cannot be the subject of theft, but there may be theft of its materials. Theft of electricity is not a theft of movable property within Section 378 of IPC. However, it is punishable under Section 135 of the Electricity Act, 2003.
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. The human body, whether living or dead (except mummified or dead bodies preserved in scientific institution or medical college) is not subject of theft. Animals can become the subject of theft, for they can be classified as movables. Illustration (b) deals with dog and illustration (c) deals with bullocks as the subject matter of theft. 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, without paying the levied fees, he is guilty of theft as he deprives the pound-keeper of his legitimate fees.
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. 2.
Out of the possession of any person: 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. Explanation:— A person employed temporarily or on a particular occasion in the capacity of a clerk or servant, is a clerk or servant within the meaning of this section.” The term ‘possession’ is a polymorphous term, which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of ‘possession’, uniformly applicable to all situations in the context of all statutes’.
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. 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. Where there are several joint owners in joint possession, and any one of them, dishonestly takes exclusive possession, he would be guilty of theft. 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. Similarly, if a coparcener dishonestly lakes the separate property of another coparcener, he will be guilty of theft. 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”. Section 23 of IPC 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. 3. 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 determines whether the act is theft or not. 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 dishonestly.
The intention to take dishonestly must exist at the time of the moving of the property, vide illustrations (h) and (i) of Section 378. If the act done is not animo-furandi it will not amount to theft. Thus, where the owner is kept out of possession temporarily not with any such intention, but only with the object of causing him trouble in the sense of mere mental anxiety and with the ultimate intention of restoring the thing to him without exacting or expecting any recompense, the detention does not amount to causing wrongful loss in any sense. When a person takes another man’s property believing under a mistake of fact and in ignorance of law, that he has a right to take it, he is not guilty of theft because there is no dishonest intention, even though he may cause wrongful loss. A person can be convicted of stealing his own property if he takes it dishonestly from another, vide illustrations (j) and (k) of Section 378.
Where there was a hire-purchase agreement in respect of vehicle, the act of taking back the vehicle by the financier for default in payments in accordance with the agreement did not amount to the theft as the vital element of dishonest intention was lacking. However, In K.A. Malthi v. Kona Bibbikutty [(1996) 7 SCC 212], Supreme Court held that the possession of a vehicle taken by the accused financed 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. A creditor, who takes movable property out of his debtor’s possession, without his consent, with the intention of coercing him to pay his debt, is guilty of theft. When people seizes cattle on the ground that they were trespassing on his land and causing damage to his crop or produce and gives out that he is taking them to the cattle pound, he commits no offence of theft and however mistaken he may be about his right to that land or crop.
He has no dishonest intention. 4. Without consent: The thing stolen must have been taken without the consent of the person in possession of it. There can be no theft where the owner actually consents to or authorizes the taking. Explanation 5 says that consent 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, vide illustrations (m) and (n) of Sec. 378. But consent given under improper circumstances will be of no avail, vide illustration (c) of Section 378. 5.
Moves that property: The offence of theft is completed when there is a dishonest moving of the property, even though the property is not detached from that to which it is secured. There must be moving of the property with an intention to take it. As the essence of the act consists in the fraudulent taking, that taking must have commenced. The English equivalent term is ‘transportation’ which implies something more than mere moving, which alone is necessary under the IPC.
The least removal of the thing taken from the place where it was before is a sufficient transportation though it be not quite carried off. It is not necessary that the property should have been removed out of its owner’s reach or carried away from the place in which it was found. Upon this principle the guest, who having taken off the sheets from his bed with an intent to steal them carried them into the hall, and was apprehended before he could get out of the house, was adjudged guilty of theft. So also was he, who having taken a horse in a close with intent to steal it, was apprehended before he could get it out of the close. Explanations 3 and 4 of Section 378 state how moving could be effected in certain cases. Illustrations (b) and (c) of Section 378 elucidate the meaning of Explanation 4 of Section 378.