Five factors are essential to constitute theft —
(1) Dishonest intention to take property.
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ADVERTISEMENTS:
(2) The property must be movable.
(3) Such property should be taken out of the possession of another person.
(4) There must be some moving of property in order to such taking.
(5) It should be taken without the consent of that person.
ADVERTISEMENTS:
It is an essential element of offence of theft that the movable property should have been moved out of the possession of any person without his consent. That is possible only if the person moving the property had taken it out of the possession of the person concerned and transferred it to his own possession in order to move it for the purpose of taking it dishonestly. It follows that transfer of possession of the property, however transient, is an essential ingredient of an offence of theft.
Dishonest intention:
Intention is the gist of the offence. The taking will not amount to theft unless the intention with which it is taken is dishonest. If it is not taken dishonestly it will not amount to theft. It must be taken with the intention to cause wrongful gain to one person and wrongful loss to another.
Both, wrongful gain and wrongful loss need not be caused; either is sufficient. Since the definition of theft requires that the moving of property is to be in order to such taking, “such” meaning intending to take “dishonestly” the very moving out must be with the dishonest intention.
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If you take away a thing believing it to be your own you do not take it away with any of the intentions mentioned above and though wrong may thereby be caused, i.e., irrespective of such consequence, the act will not amount to theft because the intention behind is not to take it away dishonestly. It is not theft to take a man’s stick out of his hand to beat him.
A creditor takes movable property out of the debtor’s possession without his consent with the intention of coercing him to pay his debt; it is theft.
The accused sold a barge to the complainant and accepted earnest money as part payment of its price. She called upon the complainant to pay the balance and threatened to put an end to the contract unless it was paid within a specified time and when he failed to pay it within such time she took away the barge. It was held that she did not take away the barge with a dishonest intention as she honestly believed that she still retained at law the possession of the barge.
In execution of a decree, property belonging to another was wrongly taken away by the bailiff. It was held that the owner and his associates had committed no offence in taking away that property as their intention was not to cause wrongful gain or wrongful loss.
The intention to take dishonestly must exist at the time of moving the property [vide 111. (b)]. A temporary taking might constitute theft [vide 111. (1)].
There may be theft without an intention to deprive the owner of the property permanently. Where, therefore, the accused snatched away some books from a boy as he came out of the school and told him that they would be returned, when the boy reached his house, it was held that theft was committed.
If any labourer enters the land without having knowledge about the ‘dishonest intention’ of the master he is entitled to an acquittal and for that purpose the labourer must himself take a stand that he had entered the land but did not know that the complainant had grown the crop. A mere denial that he had committed the theft will not be enough for setting aside his conviction for theft.
Where a Hindu takes away a calf to prevent it from being killed as a sacrifice and not with the intention of taking it away permanently he acts with a laudable motive but the removal of the calf is nonetheless dishonest and no less theft than it were if had been taken away permanently.
Bona fide dispute or claim:
Where there is a bona fide dispute as to the rights of the parties, the accused cannot be convicted of theft. The intention in such circumstances is not dishonest. A bona fide claim or right rebuts the presumption of dishonesty.
It is a settled law that when a bona fide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to theft, unless there be not only no legal right but no appearance or colour of a legal right.
Removing of crop under a bona fide exertion of rights does not amount to theft. Where an electric kettle was given for repair to a repairer who did not complete the work within the stipulated time or even within a reasonable time thereafter, and the owner forcibly removed the kettle from the repairer’s shop, without payment of the sum demanded for the repairs carried out, the owner is not guilty of theft as his intention was not to cause wrongful loss to the repairer or wrongful gain to himself within the meaning of Section 24, but to recover his property after the lapse of a reasonable time.
If the thief removes property and distributes it among the creditors of the owner of such property, he is guilty of theft even though he himself does not get any gain. The absence of any gain to himself does not make any difference in his guilt. Could it be said that a tailor would not be guilty of theft if he were to deliver his master’s plate to a pressing tailor and tell him to pay himself.
2. Movable property:
Property is said to be movable when it is capable of being carried about; it is said to be immovable when it is permanently attached to the earth as in such a state the property in question can neither move nor be moved; moving objects may also loose the power of locomotion by some obstacle as where an animal capable of moving is tethered.
The explanation to the definition contained in Section 379 explains that a property becomes movable when it is severed from the earth. A standing tree is immovable property but it becomes movable when it is cut down.
The section goes on to explain that a person is said to cause a thing to move if he removes an obstacle which prevents a thing from moving or by separating it from any other thing, as well as by actually moving it.
A sale of trees belonging to others and not cut down at the time of sale is not theft; but the removal of such trees when blown down by storm constitutes theft. Earth or stones quarried and carried away from land belonging to another is theft.
Where timber is cut away from trees belonging to another it is theft. Illustrations (a), (b) and (c) elucidate the meaning of expression “moving” 4r causing to “move”. Water supplied by a water company to consumer and standing in his pipes may be the subject to theft.
Fish in running water of rivers or seas could not be subject to theft. The principle is well stated by Madras High Court in Krishna Reddi v. Munippa Reddi, for thus “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…….. 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 owner’s consent with the intention to cause loss necessarily commits theft.” In Avatar’s case, the Supreme Court observed that for purposes of Section 378, I.P.C. electricity cannot be considered to be movable property. But it is offence against Electricity Act.
In a case of Rasanand Bindani v. State of Orissa, the High Court found the accused guilty of committing theft of electricity wire because the wire which was recovered from the house of accused cannot be available in the market. So in such situations accused can be said as committing theft and was convicted with one year’s rigorous imprisonment.
3. Possession of another person:
The definition of theft under the Indian Penal Code differs from the definition of larceny under the English law inasmuch as under the English law, the property in question must be owned by someone while under the Indian law it must be in the possession of someone.
Thus, in Illustration (g) A finds a ring on the high road which is not in the possession of any person; such ring belongs to some person, i.e., is owned by him. If A takes it away, he does not commit theft because the ring is not in the possession of any person.
Under the Indian law, a person may steal his own property if such property is in the possession of another person and it is taken out of such other person’s possession without such other’s consent with a dishonest intention.
Thus, a man who owns gold may leave such gold with a goldsmith for making ornament for him and the owner of such gold may be guilty of theft if he takes it out of the possession of the goldsmith without his consent with a dishonest intention. In Illustration (e) Z, going on a journey entrusts his plate to A to keep it for him till his return.
A carries the plate and sells to a goldsmith. Here, since the plate is already in the possession of A, A is not guilty of theft. Illustration (b) shows that where a thing belonging to a person is concealed on such person’s own premises so as to make it improbable for such person to find it, such concealment of the thing in question is theft inasmuch as the thing, though physically still remaining on such person’s premises, is nevertheless taken out of his possession so as to constitute theft.
A person may possess cattle grazing in open lands but where an animal is driven out by its owner as a bull is set free, possession terminates and a thing which is not in the possession of anybody cannot be the subject of theft. Freely running water is not capable of being the subject of theft, though water supplied through pipes or canals is such water which is deemed to be in the possession of a person.
A, a Superintendent in a Government Office took a certain file from the office to his house and made the same available to B and then returned the same after replacing certain papers, by other papers, to the office.
It was held by the Supreme Court that A was not in legal possession of the file. To commit theft one need not take the movable property permanently out of the possession of another with the intention not to return it to him.
A unlawfully took the file from the department and for a short time he deprived the Head of the Department of the possession of the said file. A temporary period of deprivation or dispossession of the property of another causes loss to the other. A person acts dishonestly even if he temporarily dispossesses another of his property. A’s case therefore fell within the four corners of Section 378.
4. Moving property in order to such taking:
Theft is complete the moment a thing is moved even though such thing may yet be far from passing into thief’s possession. Moving a thing is the initial stage in the process of taking and theft is complete at such initial stage only so that actual taking is not of much consequence for determining whether theft has been committed or not. What the law contemplates is the intention to take and actual taking is a step beyond such intention and is not relevant for the purposes of our definition.
5. Consent:
The removal of the property must be without the consent of the person in possession of it. No charge of theft can thereof lie where a creditor takes property from a debtor who subsequently finds that the debt was time-barred and he had been under no obligation to give anything to the creditor, the reason being that such taking though no longer enforceable at law is nevertheless with the debtor’s consent.
A consent obtained by force is not consent. Section 90 says that a consent is not such consent as is contemplated in any section of the Code if it-is given by a person under fear of injury or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.
Likewise consent of an insane or intoxicated person who is unable to understand the nature and consequences of that to which he gives his consent. The question arises whether taking away of property with the consent of the person in possession of it, the consent having been obtained by inducing a misconception as to facts, amounts to theft.
Taking property through misrepresentation constitutes the offence of cheating. Since the Code creates a separate offence for such taking, it is not treated as thefts which it would have been were it not for a specifically distinct class of an offence being enacted to embrace such circumstances.
Thus, commission of theft consists in (1) moving a movable property of a person out of his possession without his consent, (2) moving being in order to the taking of the property with a dishonest intention. Thus, (1) the absence of the person’s consent at the time of moving, and (2) the presence of dishonest intention in so taking and at the time, are the essential ingredients of the offence of theft.