Define and explain Theft. Can a man commit theft of his own property?

0
930

Q. Define and explain Theft. Can a man commit theft of his own property? How is Theft different from Extortion? Under what circumstances Theft becomes Robbery? Differentiate between Robbery and Dacoity. A finds a valuable ring on the road. A sells it immediately without attempting to find the true owner. Is A guilty of any offence?
Theft
In general, theft is committed when a person’s property is taken without his consent by someone. For example, A enters the house of B and takes B’s watch without B seeing and puts it in his pocket with an intention to take it for himself. A commits theft. However, besides the ordinary meaning conveyed by the word theft, the scope of theft is quite wide. Section 378 of IPC defines theft as follows –

Section 378 – Whoever, intending to take dishonestly any movable 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.

Based on this definition, the following are the essential constituents of Theft –

  1. Dishonest intention to take property – There must be dishonest intention on the part of the offender. As defined in Section 24 of IPC, dishonestly means that there must be a wrongful loss to one or wrongful gain to another. For example, A quietly takes money from B’s purse for his spending. Here, A causes wrongful loss to B and is thus guilty of theft. However,if the intention of the offender is not to cause a wrongful loss or wrongful gain, he does not commit theft even if he takes the property without consent. For example, A gives his watch to B for repairing. B takes the watch to his shop. A, who does not owe any debt to B for which B has the right to retain the watch, follows B and forcibly takes back the watch. Here, A does not commit theft because he has no dishonest intention. Similarly, when A, believing, in good faith, a property in possession of B, to be his, takes it from B, it is not theft.
    In K. N. Mehra v. State of Rajasthan AIR 1957 S. C. 369, SC held that proof of intention to cause permanent deprivation of property to the owner, or to obtain a personal gain is not necessary for the purpose of establishing dishonest intention. Thus, In Pyarelal Bhargava vs State AIR 1963, a govt. employee took a file from the govt. office, presented it to B, and brought it back to the office after two days. It was held that permanent taking of the property is not required, even a temporary movement of the property with dishonest intention is enough and thus this was theft.
  2. Property must be movable – An immovable property cannot be stolen or moved from the possession so a theft cannot happen in respect of an immovable property. However, as per Explanation 1 of section 378, as long as a thing is attached to earth, not being movable, is not subject of theft. However, as soon as it is severed from the earth, it is capable of being the subject of theft. Further, Explanation 2 says that a moving affected by the same act that causes severance, may be theft.
    For example, a tree on A’s land is not capable of being the subject of theft. However, if B, with an intention to take the tree, cuts the tree, he commits theft as soon as the tree is severed from the earth.
    In White’s case, 1853, a person introduced another pipe in a gas pipeline and consumed the gas bypassing the meter. Gas was held to be a movable property and he was held guilty of theft.
  3. Property must be taken out of possession of another – The property must be in possession of someone. A property that is not in possession of anybody cannot be a subject of theft. For example, wild dogs cannot be a subject of theft and so if someone takes a wild dog, it will not be theft. It is not important whether the person who possess the thing is the rightful owner of that thing or not. If the thing is moved out of mere possession of someone, it will be theft. For example, A, a coin collector, steals some coins from B, a fellow coin collector. A finds out that they were his coins that were stolen earlier. Here, even though B was not the rightful owner of the coins, he was still in possession of them and so A is guilty of theft.
    In HJ Ransom vs Triloki Nath 1942, A had taken a bus on hire purchase from B under the agreement that in case of default B has the right to take back the possession of the bus. A defaulted, and thereupon, B forcibly took the bus from C, who was the driver of the bus. It was held that the C was the employee of A and thus, the bus was in possession of A. Therefore, taking the bus out of his possession was theft.
  4. Property must be taken without consent – In order to constitute theft, property must be taken without the consent of person possessing it. As per Explanation 5, consent can be express or implied. For example, A, a good friend of B, goes to B’s library and takes a book without express consent of B, with the intention of reading it and returning it. Here, A might have conceived that he had B’s implied consent to take the book and so he is not guilty of theft. Similarly, when A asks for charity from B’s wife, and when she gives A some clothes belonging to B, A may conceive that she has the authority to give B’s clothes and so A is not guilty of theft.
    In Chandler’s case, 1913, A and B were both servants of C. A suggested B to rob C’s store. B agreed to this and procured keys to the store and gave them to A, who then made duplicate copies. At the time of the robbery, they were caught because B had already informed C and to catch A red handed, C had allowed B to accompany A on the theft. Here, B had the consent of C to move C’s things but A did not and so A was held guilty of theft.
  5. Physical movement of the property is must – The property must be physically moved. It is not necessary that it must be moved directly. As per Explanation 3, moving the support or obstacle that keeps the property from moving is also theft. For example, removing the pegs to which bullocks are tied, is theft. Further, as per Explanation 4, causing an animal to move, is also considered as moving the things that move in consequence. For example, A moves the bullock cart carrying a box of treasure. Here, A is guilty of moving the box of treasure.
    In Bishaki’s case 1917, the accused cut the string that tied the necklace in the neck of a woman, because of which the necklace fell. It was held that he caused sufficient movement of the property as needed for theft.

Theft of one’s own property
As per the definition of theft given in section 378, it is not the ownership but the possession of the property that is important. A person may be a legal owner of a property but if that property is in possession, legally valid or invalid, of another, it is possible for the owner to commit theft of his own property. This is explained in illustration j of section 378 – A gives his watch to B for repairs. B repairs the watch but A does not pay the repairing charges, because of which B does not return the watch as a security. A forcibly takes his watch from B. Here, A is guilty of theft of his own watch.
Further, in illustration k, A pawns his watch to B. He takes it out of B’s possession, having not payed to B what he borrowed by pawning it, without B’s consent. Thus, he commits theft of his own property in as much as he takes it dishonestly.
In Rama’s Case 1956, a person’s cattle was attached by the court and entrusted with another. He took the cattle out of the trustee’s possession without recourse of the court. He was held guilty of theft.

Extortion
In Extortion, a person takes the property of another by threat without any legal justification. Section 383 defines extortion as follows –
Section 383 – 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, A threatens to publish a defamatory libel about B unless B gives him money. A has committed extortion. A threatens B that he will keep B’s child in wrongful confinement, unless B will sign and deliver to A a promissory note binding B to pay certain moneys to A. B signs and delivers such noted. A has committed extortion.

The following are the constituents of extortion –
1. Intentionally puts any person in fear of injury – To be an offence under this section, putting a person in fear of injury intentionally is a must. The fear of injury must be such that is capable of unsettling the mind of the person threatened and cause him to part with his property. Thus, it should take away the element of freeness and voluntariness from his consent. The truth of the threat under this section is immaterial. For example, A’s child is missing and B, who does not have A’s child, threatens A that he will kill A’s child unless A pay’s him 1 lac Rs, will amount to extortion. Similarly, guilt or innocence of the party threatened is also immaterial. In Walton’s case 1863, the accused threatened to expose a clergyman, who had criminal intercourse with a woman of ill repute, unless the clergyman paid certain amount to him. He was held guilty of extortion.

However, in Nizamuddin’s case 1923, a refusal by A to perform marriage and to enter it in the register unless he is paid Rs 5, was not held to be extortion.

2. Dishonestly induces a person so put in fear to deliver to any person any property – The second critical element of extortion is that the person who has been put to fear, must deliver his property to any person. Dishonest inducement means that the person would not have otherwise agreed to part with his property and such parting causes him a wrongful loss. Further, the property must be delivered by the person who is threatened. Though, it is not necessary to deliver the property to the person threatening. For example, if A threatens B to deliver property to C, which B does, A will be guilty of extortion.
The delivery of the property by the person threatened is necessary. The offence of extortion is not complete until delivery of the property by the person put in fear is done. Thus, Duleelooddeen Sheikh’s case 1866, where a person offers no resistance to the carrying off of his property on account of fear and does not himself deliver it, it was held not to be extortion but robbery.

Extortion can also happen in respect of valuable security or anything signed that can become a valuable security. For example, A threatens B to sign a promissory note without the amount or date filled in. This is extortion because the note can be converted to valuable security.

In Romesh Chandra Arora’s case 1960, the accused took a photograph of a naked boy and a girl by compelling them to take off their clothes and extorted money from them by threatening to publish the photograph. He was held guilty of extortion.

In R S Nayak vs A R Antuley and another AIR 1986, it was held that for extortion, fear or threat must be used. In this case, chief minister A R Antuley asked the sugar cooperatives, whose cases were pending before the govt. for consideration, to donate money and promised to look into their cases. It was held that there was no fear of injury or threat and so it was not extortion.

 

Theft (Section 378) Extortion (Section 383)
The property is taken by the offender without consent. The property is delivered to the offender by consent although the consent is not free.
There is no element of threat. There is an element of threat or instillment of fear because of which the consent is given.
Only movable property is subject to theft. Any kind of property can be subjected to extortion.
Offender takes the property himself. Property is delivered to offender.

 

Robbery
Robbery is a severe form of either theft or extortion. In certain circumstances, a theft or an extortion gravitates to robbery. Section 390 defines robbery as follows –
Section 390 – In all robbery there is either theft or extortion.
When theft is robbery – Theft is robbery if, in order to the committing of the theft or in committing the theft, or in carrying away or attempting to carry away property obtained by theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint.
When extortion is robbery – Extortion is robbery if the offender at the time of committing the extortion is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, or of instant hurt, or of instant wrongful restraint to that person, or to some other person, and by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.

Thus, a theft becomes a robbery when the following two conditions are satisfied –

  1. when someone voluntarily causes or attempts to cause
    1. death, hurt, or wrongful restraint or
    2. fear of instant death, instant hurt, or instant wrongful restraint
  2. the above act is done
    1. in order to the committing of theft or
    2. committing theft or
    3. carrying away or attempting to carry away property obtained by theft.

For example, A holds Z down, and fraudulently takes Z’s money from Z’s clothes, without Z’s consent. A has committed theft and in order to commit that theft, he voluntarily caused wrongful restraint to Z. Thus, A has committed robbery.

Robbery can be committed even after the theft is committed if in order to carrying away the property acquired after theft, death, hurt, or wrongful restraint or an instant fear of them is caused. The expression “for that end” implies that death, hurt, or wrongful restraint or an instant fear of them is caused directly to complete the act of theft or carrying away the property. In Hushrut Sheik’s case 1866, C and D were stealing mangoes from tree and were surprised by B. C knocked down B and B became senseless. It was held to be a case of robbery.

Further, the action causing death, hurt, or wrongful restraint or an instant fear of them must be voluntary. Thus, in Edward’s case 1843, a person, while cutting a string tied to a basket accidentally cut the wrist of the owner who tried to seize it. He was held guilty of only theft.

An extortion becomes a robbery when the following three conditions are satisfied –

  1. when a person commits extortion by putting another person in fear of instant death, hurt, or wrongful restraint, and
  2. such a person induces the person put in such fear to deliver the property then and there and
  3. the offender is in the presence of the person put in such fear at the time of extortion.

For example, A meets Z on high road, shows a pistol, and demands Z’s purse. Z in consequence surrenders his purse. Here, A has extorted the purse from Z by putting him in fear of instant hurt and being present at the time of committing the extortion in his presence, A has committed robbery.
In another example, A meets Z and Z’s child on the high road. A takes the child and threatens to fling it down a precipice, unless Z delivers his purse. Z in consequence, delivers the purse. Here, A has extorted the purse from Z by causing Z to be in fear of instant hurt of his child who is present there. Thus, A has committed robbery.

For extortion to become robbery, the fear of instant death, hurt, or wrongful restraint is must. Thus, when A obtains property from Z by saying, “Your child is with my gang and will be put to death unless you send us ten thousand rupees”, this is extortion but not robbery because the person is not put in fear of instant death of his child.

In presence of the person – The offender must be present where a person is put in fear of injury to commit the offence of robbery. By present, it means that the person should be sufficiently near to cause the fear. By his presence, the offender is capable of carrying out his threat immediately. Thus the person put in such fear delivers the property in order to avoid the danger of instant death, hurt or wrongful restraint.
In Shikandar vs State 1984, the accused attacked his victim by knife many times and succeeded in acquiring the ear rings and key from her salwar. He was held guilty of robbery.

Dacoity
As per section 391, a Robbery committed by five or more persons is dacoity.
Section 391 – When five or more persons conjointly commit or attempt to commit robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting, or aiding is said to commit dacoity.

Conjointly implies a collective effort to commit or attempting to commit the action. It is not necessary that all the persons must be at the same place but they should be united in their efforts with respect to the offence. Thus, persons who are aiding the offence are also counted and all are guilty of dacoity.

It is necessary that all the persons involved must have common intention to commit the robbery. Thus, dacoity is different from robbery only in the respect of number of people committing it and is treated separately because it is considered to be a more grave crime.

In Ram Chand’s case 1932, it was held that the resistance of the victim is not necessary. The victims, seeing a large number of offenders, did not resist and no force or threat was used but the offenders were still held guilty of dacoity.

In Ghamandi’s case 1970, it was held that less than five persons can also be convicted of dacoity if it is proved as a fact that there were more than 5 people who committed the offence by only less than five were identified.

However, if 5 persons were identified and out of them 2 were acquitted, the remaining three cannot be convicted of dacoity.

Answer to problem
A has not committed theft because the ring is not in possession of anybody. However, as a finder of goods, he has a responsibility to make good faith efforts to find the true owner. Since he has not made any efforts to do so, he is guilty of Dishonest misappropriation of property under Section 403.