Criminology

Fundamentals of Crime, Criminal Law and Criminal

Justice
Theft and Extortion

1
 Role Name Affiliation

Principal Investigator Prof. (Dr.) Ranbir Vice Chancellor, National

Singh Law University, Delhi

Co-Principal Investigator Prof. (Dr.) G.S. Bajpai Registrar, National Law

University Delhi

Paper Coordinator Prof. (Dr.) G.S. Bajpai Registrar, National Law

University Delhi
Dr. Debdatta Das
Assistant Professor, Dept of
Law, The University of
Burdwan

Content Writer/Author Ms. Sumiti Ahuja Assistant Professor, Amity

Law School, Amity
University

2
Content Reviewer Dr. Dipa Dube Associate Professor
Rajiv Gandhi School od IP
Law
IIT Kharagpur

DESCRIPTION OF MODULE

Items Description of Module

Subject Name Criminology

Paper Name Fundamentals of Crime, Criminal Law and

Criminal Justice

Module Theft and Extortion

Name/Title

Module Id 26

Objectives The objective of this module is:

 To inculcate within the readers in-depth

knowledge of law related to Theft and
Extortion with the help of relevant case laws
and illustrations.

 To explain most basic of concepts required for

better understanding of the module.

 To provide for answers to important issues

related to Theft and Extortion.

Prerequisites General understanding of the fundamental principles

of criminal law; basic knowledge of offences against
property and the general explanations under the
Indian Penal Code, 1860.

Key words Dishonesty; Theft; Larceny; Consent; Movable

Property; Possession; Extortion; Injury

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 Module Title: Theft and Extortion (Quadrant-I)

Synopsis

 Introduction: Offences Against Property

 Learning Outcomes
 Offence of Theft under the Indian Penal Code, 1860
 Difference between Indian Law and English Law on the offence of theft
 Aggravated forms of theft under the Indian Penal Code, 1860
 Offence of Extortion under the Indian Penal Code, 1860
 Similarity between Extortion and offence of blackmailing under the English Law
 Aggravated forms of Extortion under the Indian Penal Code, 1860
 Difference between Theft and Extortion
 Summary

1. INTRODUCTION

Offences against property are dealt with under Chapter XVII of the Indian Penal Code, 1860,
covering 85 sections, thereby finding a prominent place in the IPC. The factor of
commonality between the offences under the abovementioned chapter of the IPC is
dishonesty, but the manner in which this dishonesty is exercised is different in different cases.
In the words of Prof. Glanville Williams, “Some offences of dishonesty concentrate on the
interest invaded, while others focus on the defendant’s conduct”. 1

The IPC divides these offences against property under ten sub-heads, which are as follows:

1. Theft (Sections 378-382)- [D dishonestly moves movable property out of possession of P

without the latter’s consent].

2. Extortion (Sections 383-389)- [D puts P under fear of injury and makes him deliver his
property or valuable security]

3. Robbery and Dacoity (Sections 390-402)- [Aggravated forms of theft and extortion; D
forcefully steals P’s property (Theft when robbery); D alongwith four of his friends forcefully
steals P’s property (Dacoity)]

4. Criminal Misappropriation (Sections 403-404)- [D dishonestly appropriates P’s property to

use own use]

5. Criminal Breach of Trust (Sections 405-409)- [P having entrusted the care of his property
to D, D dishonestly appropriates it]

6. Receiving Stolen property (Sections 410-414)- [D is found in possession of the property

soon after the same was stolen from P]

1
Glanville Williams, Text Book of Criminal Law 699 (Universal Law Publishing Co., New Delhi, 2nd
edn.). Dishonesty in case of interest invaded can be illustrated through the offence of Criminal
Misappropriation (appropriating a person’s property dishonestly); dishonesty in defendant’s conduct
can be seen in the offence of forging a document in order to cause prejudice to someone.

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7. Cheating (Sections 415-420)- [D by pledging as diamonds, articles which he knows are not
diamonds, thereby induces P to lend him money]

8. Fraudulent deed (Sections 421-424)- [D dishonestly disposes off his property with intent to
cause wrongful loss to P, his creditor]

9. Mischief (Sections 425-440)- [D throws the ring of P in river in order to cause wrongful
loss to the latter]

10. Criminal Trespass (Sections 441-462)- [D trespasses onto P’s property committing (or
with an intention to commit) any offence.

The offences against property being many and varied, criminalize conducts that may be
categorized into three types of offences:

(i) Offences dealing with deprivation of property (Sections 378-424)

(ii) Offences dealing with injury to property (Sections 425-440)

(iii) Offences dealing with violation of rights of property in order to the commission of some
other offence (Sections 441-462).

Having given the outline of the offences against property as dealt with under the IPC, this
module further aims to explain the essentials for crimes of theft and extortion as under the
IPC.

2. LEARNING OUTCOMES

After completing this module, the reader will be able to:

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3. OFFENCE OF THEFT UNDER THE INDIAN PENAL CODE, 1860

Theft can be explained as such offence of dishonesty in which the main purpose is the
unlawful enrichment of the perpetrators without necessarily doing any physical hurt to person
or to material property.2

3.1 Statutory Framework.

The offence of theft under IPC has been given under Sections 378-382. Section 378 gives the
essentials of liability for theft, Section 379 provides for punishment for the same, with
sections 380-382 dealing with aggravated versions of theft.

Section 378 of the IPC. “Whoever, intending to take dishonestly any movable property out
of 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. 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 any other person having for that purpose
authority either express or implied.

Section 379 of the IPC. “Whoever commits theft shall be punished with imprisonment of
either description for a term which may extend to three years, or with fine, or with both.”

3.2 Essential Ingredients for Determining Liability under Theft.

As per Section 378 of the IPC following are the essentials of theft:

2
J.W. Cecil Turner, Kenny’s Outlines of Criminal Law 263 (Universal Law Publishing Co. Pvt. Ltd.,
Delhi, 19th ed., Third Indian Reprint).

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The gravamen of the charge of theft is dishonest removal of movable property out of
the possession of a person without his consent.
3.2.1 Dishonest Intention.
It is well established rule that in order to constitute the offence of theft, the thief must
move the property animus furandi, i.e., with the intention to steal. In other words, the
intention to take dishonestly must exist at the time of moving of the property. It makes
no difference in the accused’s guilt that the act was not intended to procure any
personal benefit to him, because it is sufficient if it causes wrongful loss to the other
person. As can be seen in the definition of ‘dishonestly’ (in the text-box below), the
term ‘or’ is a disjunctive, so it will suffice if either one person has been wrongfully
gained or the other person has suffered wrongful loss.

The term ‘dishonestly’ as defined under Section 24 of the Indian Penal Code, 1860: 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".
For the definitions of wrongful gain and wrongful loss reference has to be made to Section 23 of
the IPC.
Section 23: "Wrongful gain" is gain by unlawful means of property to which the person gaining is
not legally entitled.
"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 kept out of any property, as well as when such person
is wrongfully deprived of property.

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If a creditor takes movable property out of a debtor’s possession without his consent,
with the intention of coercing him to pay his debt, this constitutes theft, as the same
act clearly points towards the creditor’s dishonest intention.3 A temporary retention of
property by a person wrongfully gaining thereby or a temporary keeping out of
property from the person legally entitled thereto, may amount to theft under S. 378 of
the Indian Penal Code.4
There can be no theft where there is no dishonesty, i.e., taking without any dishonest
intention is not theft. A bona-fide claim of right rebuts the presumption of dishonesty
and where such a plea is raised by the accused it is mainly a question of fact whether
such belief exists or not. For example, A, in good faith, believing property belonging
to B to be his own property, takes that property out of B’s possession. Here, as A does
not take dishonestly, he does not commit theft.5 Now the question arises, what if in
this case A realizes his mistake later but instead of returning the property back to B,
he appropriates the same to his own use (say for example he sells the property or
consumes it)? That is to say what if A develops dishonest intention later on, will it
amount to theft? The answer will be NO; it can still not be termed as theft. The reason
being, that the dishonest intention of the accused should exist at the time of moving of
that property out of the possession in case of theft.6 But, that doesn’t mean that this
will help A to escape his liability altogether. As in that case he can be held liable for
criminal misappropriation.
Theft will not be said to have committed unless there be not only no legal right but no
appearance or colour of legal right.7 By the expression ‘colour of legal right’ is meant
not a false pretense but a fair pretense, not a complete absence of claim but a bona-
fide claim, howsoever weak. When property is removed in the assertion of a contested
claim of right, however ill-founded that claim may be, the removal thereof does not
constitute theft.8
One of the major differences between the Indian Law and English Law on theft is that
under the former taking need not be with intent to retain property permanently. Even a
transient transfer of possession is sufficient to meet the requirement under the Indian
Law. For example, A takes an article belonging to Z out of Z’s possession, without
Z’s consent, with the intention of keeping it until he obtains money from Z as a
reward for its restoration. Here A takes dishonestly; A has therefore committed theft.9

3
R v. Srichurn Chungo, I (1895) ILR 22 Cal 1017.
4
K.N. Mehra v. State of Rajasthan, AIR 1957 SC 369.
5
Refer Illustration (p) to Section 378 of the IPC.
6
For example, A sees a ring belonging to Z lying on a table in Z’s house. Not venturing to
misappropriate the ring immediately for fear of search and detection, A hides the ring in a place where
it is highly improbable that it will ever be found by Z, with the intention of taking the ring from the
hiding place and selling it when the loss is forgotten. Here A, at the time of first moving the ring,
commits theft. (Refer Illustration (h) to Section 378 of the IPC).
7
Chandi Kumar v. Abanidhar Roy, AIR 1965 SC 585.
8
Also See Gedda Raminaidu and Others v. State of Andhra Pradesh, AIR 1980 SC 2127: Herein the
Supreme Court observed that, “It is well settled that the question of bona-fide claim of right arises only
where the accused show to the Courts satisfaction that their belief is reasonable and is based on some
documents or title, however, weak it may be”.
9
Refer Illustration (l) to Section 378 of the IPC.

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In Pyare Lal Bhargawa v. State of Rajasthan,10 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 insertion of some. Thereafter, the
file was replaced. The question before the 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 file and caused wrongful loss to the department. So, it was held that it
amounted to an offence under Section 378 of the IPC. Similarly, where the accused
took out an Indian Air Force plane for an unauthorized flight, even temporarily, it was
held that he was guilty of theft.11
Now, again a question arises, can a person ever possess dishonest intention to
commit theft of his own property (or, the property of which he himself is the owner)?
Answer will be in affirmative here. Theft under the IPC is an offence against
possession and not ownership. For example, if A, having pawned his watch to Z, takes
it out of Z’s possession without Z’s consent, not having paid what he borrowed on the
watch, he commits theft, though the watch is his own property, inasmuch as he takes
it dishonestly.12 In R v. Turner,13 the defendant took his car in to a service station for
repairs. When he went to pick it up he saw that the car was left outside with the key
in. He took the car without paying for the repairs. He was liable for theft of his own
car since the car was regarded as belonging to the service station as they were in
possession and control of it.
Seizure of goods under the deed of hypothecation14 was held as not amounting to theft
under the Code. Here when the person defaulted in his payments to the bank then, the
bank under the express clause in the deed seized the lorry; it didn’t amount to theft
because the bank acted as per the deed and there was no dishonest intention. Also in
the case of Charanjit Singh Chadha v. Sudhir Mehra15, in case of a hire-purchase
agreement, the custody of vehicle was given to the hirer with a condition stipulated in
the agreement that the financier will continue to be the owner till payment of last
installment. Subsequently, there was a default in payment made by the hirer and as a
result the financier took back the vehicle. The Supreme Court held that it did not
amount to theft because the agreement specifically provided that the owner as a right
could repossess the vehicle in case of default in payment. So, the act of financier was
lacking dishonest intention.
3.2.2 Movable Property.

10
AIR 1963 SC 1094.
11
Supra note 4.
12
Refer Illustration (k) to Section 378 of the IPC.
13
[1971] 1 WLR 901.
14
Sekar v. Arumugham (2000) CrLJ 1552 (Mad).
15
AIR 2001 SC 3721

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The subject of theft must be movable property, which means, it should be entirely
disconnected from land. It is not necessary that the thing stolen must have some
appreciable value.

Section 22 of the IPC defines ‘movable property’ as corporeal property of every description,
except land and things attached to the earth or permanently fastened to anything which is
attached to the earth.

As pointed in Russell on Crime, there is a saying at common law, that, larceny16

cannot be committed of things real17, or which “savour of the realty”.18 The latter
quoted phrase means and includes things that concern with or are part of land before
they are capable of being taken away. They can be substance of land (e.g., ores and
minerals), produce of land (e.g. crops) or things affixed to land (e.g. buildings).19
Explanations 1 and 2 to Section 378 of the IPC state that things attached to the land
may become movable property by severance from the earth, and that the act of
severance may itself if done dishonestly may be theft. For example, A cuts down a
tree on Z’s ground, with the intention of dishonestly taking the tree out of Z’s
possession without Z’s consent. Here, as soon as A has severed the tree in order to
such taking, he has committed theft.20 The Apex Court in its’ recent judgment of State
(NCT of Delhi) v. Sanjay21, held that the dishonest removing of sand, gravel and other
minerals from the river, which is the property of the State, out of the State’s
possession without the consent, constitute an offence of theft.
Question: Can there be theft of cooking gas, water, electricity, fish, wild animals etc.?
Answer: Let’s see the table below for our answers:

16
For definition, refer Infra Note 38.
17
Real property generally refers to land or buildings.
18
J.W. Cecil Turner, Russell on Crime 888 (Universal Law Publishing Co. Pvt. Ltd., Delhi, 2nd Indian
Reprint, 2012, Vol. 2)
19
Id at 891.
20
Refer Illustration (a) to Section 378 of the IPC.
21
(2014) 9 SCC 772.

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11
Interesting Fact:
Issue of Data Theft- Section 378 only refers to movable property, i.e., corporeal
property and data by itself is intangible. However, if data is stored in a medium and
that medium is stolen, then it is theft. Although, data criminal (person who steals the
data) can be dealt with under other provisions of the Indian Penal Code, 1860, the IT
Act, 2000 and the Copyright Act, 1957. In case of employees and other independent
contractors the offence of criminal breach of trust can be made out. 22
3.2.3 Out of the possession of any person.
The term possession is not defined under the IPC, but it is one of the most important
aspects of the offence of theft. As mentioned previously, theft under Indian Law is
offence against possession and not ownership.
“A movable thing is said to be in 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.”23 Salmond describes possession, ‘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’.24
Person in possession may not be the actual owner, although mere physical control of
person over the thing is quite enough. In other words, the property has to be in
possession of someone so that someone else can be liable for its theft. Here, we can
understand it through comparison between two situations:
Situation A: ‘A’ finds a ring belonging to ‘Z’ on a table in the house which
‘Z’ occupies. Here the ring is in Z’s possession, and if A dishonestly removes it, A
commits theft.25
Situation B: ‘A’ finds a ring lying on the high-road, not in the possession of
any person. ‘A’, by taking it, commits no theft, though he may commit criminal
misappropriation of property.26
A very important issue dealing with possession in case of theft is whether it refers to
merely possession in law or, it has to be actual physical possession? The answer to
this is, as a general rule it has to be actual physical possession. Now, the second issue
arises can there be theft by a person whose possession began with the consent of the
owner?

22
“Data Theft and Security Law in India” available at: http://www.trustman.org/articles/data-theft-
security-law-india/ (Last Visited on June 06, 2016).
23
Sir James Fitzjames Stephen, A Digest of the Criminal Law (Crimes and Punishments) 222
(Macmillan And Co., London, 4th edn., 1887) available at:
https://archive.org/stream/digestofcriminal00stepuoft#page/n0/mode/2up (Last Visited on June 06,
2016).
24
Supdt. And Remembrancer Legal Affairs West Bengal v. Anil Kumar Bhunja, AIR 1980 SC 52.
25
Refer Illustration (f) to Section 378 of the IPC.
26
Refer Illustration (g) to Section 378 of the IPC. Where property dishonestly taken belonged to a
person who was dead, and therefore, in nobody’s possession, or where it is lost property without any
apparent possessor, it is not the subject of theft, but of criminal misappropriation.

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For answer to the second issue, one needs to understand the law stated under Section
27 of the IPC, which deals with property in possession of wife, clerk and servant:
“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.” This
provision refers to the concept of constructive possession, i.e., even though the
possession began with the consent of the owner, or that the possession of property has
been given by the owner to his wife, clerk or servant, still in the eyes of law it will be
considered to be in the possession of the actual owner only (this is called de jure
possession or, possession in law). If a master delivers property in the hands of his
servant for a special purpose, as to leave it at the house of a friend, or to deposit it
with the banker, the servant will be guilty of theft if he runs away with the same,
because it still remains in the constructive possession of the master.
We can again compare two situations here:
Situation A: ‘A’ being ‘Z’s’ servant, and entrusted by ‘Z’ with the care of
‘Z’s’ plate dishonestly runs away with the plate, without Z’s consent. Here, A has
committed theft.27 [Ref. to Section 27 of the IPC, the possession was with the owner
only, and it can be observed that A took it away from Z’s possession. In absence of
Section 27, the situation would have been same as given below].
Situation B: Z, going on a journey, entrusts his plate to A, the keeper of a
warehouse, till Z shall return. A carries the plate to a goldsmith and sells it. Here the
plate was not in Z’s possession. It could not therefore be taken out of Z’s possession,
and A has not committed theft, though he may have committed criminal breach of
trust.28
There is no presumption of law, that the husband and wife constitute one person in
India for the purpose of criminal law. If the wife removes her husband’s property
from his house with dishonest intention, she is guilty of theft. But, if she removes
from the possession of her husband and without his consent, her stridhan, then she
cannot be convicted of theft.
Where some property is in joint possession, and any one of the joint owner
dishonestly takes exclusive possession of the same, he would be guilty of theft.
3.2.4 Without the consent.
The offence of theft is committed if the property of a person is taken away from him
without his consent with a dishonest intention. Consent obtained by force is no
consent. Explanation 5 to Section 378 of the IPC says that consent must 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.
For example, A, being on friendly terms with Z, goes into Z’s library in Z’s absence,
and takes away a book without Z’s express consent for the purpose merely of reading
it, and with the intention of returning it. Here, it is probable that A may have

27
Refer Illustration (d) to Section 378 of the IPC.
28
Refer Illustration (e) to Section 378 of the IPC.

13
conceived that he had Z’s implied consent to use Z’s book. If this was A’s impression,
A has not committed theft.29 Similarly, if A asks charity from Z’s wife and she gives
A money, food, and clothes, which A knows to belong to Z her husband. Here, it is
probable that A may conceive that Z’s wife is authorized to give away alms. If this
was A’s impression, A has not committed theft;30 but here if A being paramour of Z’s
wife, and she gives a valuable property, which A knows to belong to her husband Z,
and to be such property as she has no authority from Z to give. Here if A takes the
property dishonestly, he commits theft.31
Consent obtained by tricks is no consent. In an English case32, the defendant, a taxi
driver, swindled his victim, a young Italian student with little knowledge of English,
by indicating that one pound which the student tendered for the fare was not enough
and taking a further six pounds from the wallet which the student held open. It was
held that the defendant was properly convicted of theft.
3.2.5 Moves that property.
While dishonest intention forms the mens rea, the actus reus of theft is ‘moving of the
property in order to such taking’. In simple words, theft includes mere moving of the
personal property of someone without that person’s consent; actual taking away is not
necessary.
For example, A sees a ring belonging to Z lying on a table in Z’s house. Not venturing
to misappropriate the ring immediately for fear of search and detection, A hides the
ring in a place where it is highly improbable that it will ever be found by Z, with the
intention of taking the ring from the hiding place and selling it when the loss is
forgotten. Here A, at the time of first moving the ring, commits theft.33 Again if, A
puts bait for dogs in his pocket, and thus induces Z’s dog to follow it. Here, if A’s
intention be dishonestly to take the dog out of Z’s possession without Z’s consent, A
has committed theft as soon as Z’s dog has begun to follow A.34 Explanation 3 and 4
to Section 378 of the IPC state how ‘moving’ can be effected in certain cases.
Another example can be, if A dishonestly (or without license) severs the trees on Z’s
land in order to take them away. The moment he severs the trees from the land, he can
be held liable for theft.
In the case of, K.N. Mehra v. State of Rajasthan35, the Apex Court observed that: “It
is rightly pointed out that since the definition of theft requires that the moving of the
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.”

29
Refer Illustration (m) to Section 378 of the IPC.
30
Refer Illustration (n) to Section 378 of the IPC.
31
Refer Illustration (o) to Section 378 of the IPC.
32
Lawrence v. Commissioner of Police the Metropolis (1971) 2 All ER 1253.
33
Refer Illustration (h) to Section 378 of the IPC.
34
Refer Illustration (b) to Section 378 of the IPC. It elucidates the meaning of Explanation 4 to Section
378 of the IPC.
35
Supra Note 4; Also See Ram Ratan and Others v. The State of Bihar and Another, AIR 1965 SC 926.

14
3.3 Punishment for Theft under Section 379 of the IPC.
Section 379 is stated as: “Whoever commits theft shall be punished with
imprisonment of either description for a term which may extend to three years, or
with fine, or with both”.
There is a latin maxim which goes as- Necessitas inducit privilegium quo ad jura
privata which means, Necessity gives a preference with regard to private rights.
Where a man in extreme want of food or clothing steals either in order to relieve his
present necessities, the law allows no such excuse to be considered.36 Recently
(March, 2016), an incident was reported wherein, an advocate was arrested for
allegedly stealing law books, journals and several volumes of citations from the AP
and Telangana High Court Library for the past year. The reason quoted for his doing
such act was that he had been in financial difficulties and did this to establish a
reputed office and impress his clients.
There also have been cases wherein the courts having been convinced that the accused
being the sole breadwinner of the family or, without any past criminal record, has
given lesser punishments in order to meet the ends of justice.37

4. DIFFERENCE BETWEEN INDIAN LAW AND ENGLISH LAW ON THE

OFFENCE OF THEFT.
In England, the Larceny Acts of 1861 and 1961 got replaced by the Theft Act, 1968.
In the words of Glanville Williams, ‘theft rolls up what was larceny38, embezzlement39
and fraudulent conversion in the old law’. Although many legal systems continue to
separate thefts into categories40, some jurisdictions, especially in the United States,
have consolidated them under the general title of theft, leaving for the court the chore
of fitting an offence into the proper category.41
Under the English law, theft is an offence against ownership, that means there can be
no offence of theft of property unless, it is a property with an owner; whereas, in

36
Justice KT Thomas and MA Rashid, Ratanlal & Dhirajlal: The Indian Penal Code 943 (LexisNexis,
Gurgaon, Haryana, 34th edn., 2014).
37
See Rasananda Bindani v. State of Orissa, 1992 CrLJ 121 (Ori.)
38
Larceny in general means wrongful taking and carrying away the personal goods of someone.
Larceny is an offence that developed through the common law and includes behavior that most people
consider common theft, i.e., the taking of someone else’s property without permission.
39
Embezzlement is defined as theft/larceny of assets (money or property) by a person who was legally
entrusted with the possession of the same.
40
Theft is generally considered to be wider term covering a variety of specific types of stealing (or
offences against property), including the crimes of larceny, robbery, and burglary. Larceny is common
theft, which includes taking away the personal property of other without use of any force and without
the consent of that person. Robbery includes graver form of theft wherein, application or threat of force
for the purpose of committing theft or for escaping is used. Burglary refers to breaking and entering the
premises of another to commit a crime, mostly theft. Under the Indian Penal Code as well, the offence
of theft, robbery and house breaking have been given separate recognition.
41
Thomas J. Bernard, “Theft” available at: http://www.britannica.com/topic/theft (Last Visited on June
8, 2016).

15
Indian law, theft is offence against possession. Under the English law, the property
must be taken to deprive another permanently of his property but this is not so under
the Indian law where removal of movable property with intent to deprive another
temporarily of his property would also amount to theft.
Theft under English law is punishable with imprisonment not exceeding seven years
under Section 7 of the Theft Act, 1968.42 Under Section 379 of the IPC, theft is
punishable with imprisonment extending upto three years or with fine or with both.
Section 1 of the Theft Act, 1968 states that- “a person is guilty of theft if he
dishonestly appropriates property belonging to another with the intention of
permanently depriving the other of it.” Unlike India, theft in England consists of four
ingredients, namely: Dishonestly; appropriation43; of property which is capable of
being stolen, belonging to another; with intention to deprive permanently. In Anderton
v. Wish,44 D took a price tag from a cheaper brush and stuck it over the tag on another
brush she intended to buy which was costlier, thus intending to pay less than the true
price. She paid the lower price and was arrested outside the shop. Held, that she had
assumed the rights of an owner within Section 3 of the Theft Act, 1968, when she
changed the price tag. She had therefore appropriated the brush and was guilty of theft
at that stage. The element of appropriation which is intricate part of the definition of
theft under the English Law and forms the actus reus of theft is missing under the
definition of theft given in the IPC.
One important point to be noted while discussing the difference between theft under
both the laws is that there is a clear cut difference between theft and criminal breach
of trust under the IPC, whereas, it is not so in England. Suppose A is the Bailee of
goods of B, and the same are to be delivered to C. What if, A dishonestly
misappropriates the goods with the intention of permanently depriving B or C of them
(the goods)? Well, under IPC it comes under the offence of Criminal Breach of Trust,
but under the English Law, A will be guilty of theft.

5. AGGRAVATED FORMS OF THEFT UNDER THE INDIAN PENAL CODE,

1860.
Sections 380-382 of the IPC, state the aggravated forms of theft which are punished
more severely.
Section 380 of the IPC. Theft in dwelling house45, etc.- “Whoever commits theft in
any building, tent, or vessel, which building, tent or vessel is used as a human
dwelling, or used for the custody of property, shall be punished with imprisonment of

42
The defendant under the Theft Act, 1968, can be only charged under Section 1 whilst Sections 2-6
define the various elements of the definition of theft under Section 1 and Section 7 describes the
sentence.
43
Appropriation as defined under Section 3(1) of the Theft Act, 1968, means any assumption of the
rights of the owner, i.e., selling, lending, using, consuming, etc.
44
(1980) Cr LR 319 DC (UK).
45
‘Dwelling house’ means a building, tent or vessel in which a person lives or remains whether
permanently or temporarily. In that matter even a railway waiting room is a building used for human
dwelling [State of Punjab v. Nihal Singh (1971) 73 Punj LR 440].

16
either description for a term which may extend to seven years, and shall also be liable
to fine.”
The object of this section is to give greater security only to property deposited in a
house, and not to immovable property of the person or the party from whom it is
stolen.
In case of theft in dwelling house, Section 380 is generally read with Section 448 of
the IPC46.
Section 381 of the IPC. Theft by clerk or servant of property in possession of
master- “Whoever, being a clerk or servant, or being employed in the capacity of a
clerk or servant, commits theft in respect of any property in the possession of his
master or employer, shall be punished with imprisonment of either description for a
term which may extend to seven years, and shall also be liable to fine.”
In view of the confidence reposed by the employer in his clerk or servant, any offence
committed by the employee is taken serious note of. Thus, the theft by a clerk or
servant of his master’s or employer’s punished severely because of the abuse of
confidence reposed in the employee which his position involves under this section.
The possession of the master or employer need not be actual physical possession.
Even a constructive possession is sufficient for the purposes of this section. An unpaid
apprentice is a clerk or servant within the meaning of this section.
Section 382 of the IPC. Theft after preparation made for causing death, hurt, or
restraint in order to the committing theft- “Whoever commits theft, having made
preparation for causing death, or hurt, or restraint, or fear of death, or of hurt, or of
restraint, to any person, in order to the committing of such theft, or in order to the
effecting of his escape after the committing of such theft, or in order to the retaining
of property taken by such theft, shall be punished with rigorous imprisonment for a
term which may extend to ten years, and shall also be liable to fine.
The only difference between the offence under this section and that in the case of
robbery (Section 390 of the IPC) is that some injury is actually inflicted in the case of
robbery, while under this section all preparations are made for facilitating his escape
after committing such theft or to retain the property stolen is sufficient. For example,
A commits theft on property in Z’s possession; and, while committing this theft, he
has a loaded pistol under his garment, having provided this pistol for the purpose of
hurting Z in case Z should resist. A has committed the offence defined in this section;
but where Z tries to resist and A uses his pistol to hurt Z, then in that case offence
committed would be of theft. Proof of actual fact is necessary before conviction under
this section.

6. OFFENCE OF EXTORTION UNDER THE INDIAN PENAL CODE, 1860

46
Section 448. Punishment for house-trespass.--Whoever commits house trespass shall be punished
with imprisonment of either description for a term which may extend to one year, or with fine which
may extend to one thousand rupees, or with both.

17
Offence of extortion is considered to be a middle path between theft and robbery.
6.1 Statutory Framework.
It is dealt with under Sections 383-389 of the IPC, with Section 383 laying down the
contents or essentials of extortion and Section 384 providing for the punishment.
Section 383 Section 384

Extortion-- Whoever intentionally puts any Punishment for extortion-- Whoever

person in fear of any injury to that person, or commits extortion shall be punished with
to any other, and thereby dishonestly induces imprisonment of either description for a term
the person so put in fear to deliver to any which may extend to three years, or with fine,
person any property, or valuable security or or with both.
anything signed or sealed which may be
converted into a valuable security, commits
“extortion”.

6.2 Essential Ingredients for Determining Liability under Extortion.

The elements fundamental to prove that a crime of extortion has been committed are
as follows47:

 The accused must put any person in fear of injury to him or, to any other
person.
 The putting of a person in such fear must be intentional.
 The accused must thereby induce the person so put in fear to deliver to any
person any property or anything signed or sealed which may be converted into
a valuable security.
 Such inducement must be done dishonestly.
So, basically two things are to be seen; firstly, that the accused had dishonestly put the
person under fear of injury and secondly, the person so put under fear delivered the
property to accused.
6.2.1 Putting person in fear of injury.
The term ‘injury’ as defined under Section 44 of the IPC includes only such harm as
may be caused illegally to a person’s mind, body, reputation or, property. The fear of
injury must be of a real nature, and bare threats are not enough.48 It should be such so
as to overpower the will of the person on whom it is exercised in such a way that the
act (the act of delivery) does not remain voluntary, i.e., it affects the free consent of
the person put under fear. In case of Chander Kala v. Ram Kishan49, the headmaster

47
Dhananjay v. State of Bihar (2007) 14 SCC 768.
48
Walton (1863) 9 Cox 268. In this case, the accused threatened to expose a clergyman who had
criminal intercourse with a woman of ill repute, unless the clergyman paid an amount of money to him.
He was held guilty of extortion.
49
AIR 1985 SC 1268,

18
induced the lady teacher to sign on three blank papers and deliver those papers to him.
He had threatened to outrage the modesty of that woman.
According to the section it is possible that one person gave threats and the other
received the property, in such case both will be liable for committing extortion.
Putting a person under fear that god will punish a man for some act is not such an
injury. No injury can be caused or threatened to be caused unless the act done is either
an offence or such as may properly be made the basis of a civil action.
6.2.2 Dishonest inducement to deliver property or valuable security.
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.
Delivery of property or valuable security by the person put in fear is the essence of the
offence of extortion. Property for the purposes of this section includes both movable
and immovable property. Section 30 of the IPC defines the term ‘valuable security’
as: “a document which is, or purports to be, a document whereby any legal right is
created, extended, transferred, restricted, extinguished or released, or who hereby any
person acknowledges that he lies under legal liability, or has not a certain legal right.”
For example: A, by putting Z in fear of grievous hurt, dishonestly induces Z to sign or
affix his seal to a blank paper and deliver it to A. Z signs and delivers the paper to A.
Here, as the paper so signed may be converted into a valuable security A has
committed extortion.50
Mere forcible taking of thumb impression does not amount to extortion.51 In contrast
to this, if a person is threatened to be beaten up unless he puts his thumb impression
on the document and deliver it, and he does so, this will amount to extortion.
Similarly, where a person offers no resistance to the carrying off of his property on
account of fear and does not himself delivers it, it will not be extortion but robbery.52

One of the basic differences between extortion and cheating is that in case of
extortion, property is delivered because of the induced fear, while in case of cheating,
property is delivered with consent but that consent is induced by fraud.

50
Refer Illustration (d) to Section 383 of the IPC.
51
Jadunandan Singh v. Emperor, AIR 1941 Pat 129.
52
Queen v. Dulleloodeen Sheik (1866) 5 WR Cr 119.

19
7. SIMILARITY BETWEEN EXTORTION AND OFFENCE OF
BLACKMAILING UNDER THE ENGLISH LAW
The offence of blackmail is given under Section 21 of the Theft Act 1968. According
to it, blackmail consists of making an unwarranted demand with menaces with a view
to making a gain or causing a loss. By Section 21(3) of the Theft Act 1968, the
maximum sentence for blackmail is 14 years.
Although, if such demand is warranted and reasonable, the person will not be held
liable for blackmailing. Illustration: A person who tries to recover his debt with
menaces to initiate legal proceedings commits no offence as his threat is both
warranted and reasonable.
The two major requirements under the section are demand and menaces. Demand can
be considered equivalent to dishonest inducement to deliver property (as under
Section 383, IPC) and, menaces can be considered equivalent to fear of injury/threats
(as under Section 383, IPC).
Like in Indian Law, injury includes injury to mind, body, reputation and property,
similarly, the word menace extends beyond threats of physical violence and property
damage53.

8. AGGRAVATED FORMS OF EXTORTION UNDER THE INDIAN PENAL

CODE, 1860.
Sections 386 and 388 provide the aggravated forms of extortion.
OFFENCE PUNISHMENT

Section 386: Extortion by putting a person in Imprisonment of maximum ten years, and
fear of death or grievous hurt-- Whoever shall also be liable to fine.
commits extortion by putting any person in
fear of death or of grievous hurt to that
person or to any other.

Section 388: Extortion by threat of

accusation of an offence punishable with Imprisonment of maximum ten years, and
death or imprisonment for life, etc. -- shall also be liable to fine; and, if the offence
Whoever commits extortion by putting any be one punishable under section 377 of this
person in fear of an accusation against that Code, may be punished with imprisonment
person or any other, of having committed or for life.
attempted to commit any offence punishable
with death, or with imprisonment for life, or
with imprisonment for a term which may

53
R v. Tomlinson (1895) 1 QB 706. In this case, the appellant made a demand for money threatening to
reveal the complaint’s sexual encounters with another woman to his wife and friends. He was
convicted of blackmail and appealed contending that use of the word ‘menaces’ suggested only threats
of physical violence or damage to property would suffice. In this case menace extended to threat to
malign reputation.

20
extend to ten years, or of having attempted to
induce any other person to commit such
offence.

A very important point is that there is a relation between the pairs of sections 385 &
384, 387 & 386 and 389 & 388. The commonality lies in, that first section in all the
three pairs is an inchoate offence54 (or, is punishing inchoate offence), whereas, the
other section mentioned in all the three pairs is dealing with consummated or
accomplishment of an offence (or, is punishing consummated offence). In other
words, sections 385, 387 and 389 are punishing accused for merely putting a person
under fear of injury; sections 384, 386 and 388 are punishing for extortion or, fear of
injury coupled with delivery of property. Punishing the accused for putting a person
under fear of injury is like punishing him for attempt, because if delivery of property
had taken place, the offence would have been complete.

9. DIFFERENCE BETWEEN THEFT AND EXTORTION.

Distinction between theft and extortion is well known. The offence of extortion is
carried out by over-powering the will of the owner; in commission of an offence of
theft the offender’s intention is always to take without that person’s consent.55
The points of differences between Theft and Extortion are as follows:
Element of Difference Theft Extortion

Consent Property is taken away Consent is obtained

without the consent of the wrongfully.
owner.

Nature of Property Subject matter of theft is Property may be movable or

always a movable property. immovable.

Fear Factor There is no element of fear Property is obtained by

or threat. putting a person under fear of
injury and thereby, inducing
him to part with his property.

Delivery of property There is no delivery of the Property is delivered to

property. offender.

54
Inchoate offences are also termed as incomplete offences or preliminary crimes. These are the acts
that imply an inclination to commit a crime even though the crime is never completed.
55
Supra Note 47.

21
10. SUMMARY.
Chapter XVII of the Indian Penal Code, 1860, dealing with offences against property,
is the second largest chapter of the Code. It deals with ten types of property offences,
the common factor though, between them being dishonesty. Offence of Theft dealt
with under sections 378-382. It is an offence against possession and not against
ownership. Even an owner can commit theft of his own property. The gist of the
offence is dishonest intention; when there is a bona fide claim or person takes the
property in good faith believing it to be his own property, in that case he cannot be
hauled up for theft. Theft specifically deals with ‘moving’ of movable property. So,
the conception of immovable property is not discussed in theft but it is discussed in
different sections of the IPC because moving of immovable property is something
beyond the practicality. It is the dishonest intention regarding immovable property
specifically dealt in other section with the wording like- delivery of the property
which looks more appropriate. Unlike English law, taking of the property
permanently and appropriation of it is part of larceny which is not so under the Indian
Penal Code, 1860. Under the IPC, misappropriation of property is dealt under
different sections and both are distinct offences. Reading Section 378 with Section 27
of the IPC, gives us clear indication that possession with the clerk or servant in lieu of
the master or employer, is possession with the master itself, and if an offence is done
by a person on whom the victim reposes confidence the punishment would be more
stringent.
The second offence of property under IPC is Extortion covered under sections 383-
389. The essentials of extortion are, fear of injury (instilled by the accused) and
delivery of property (made by the person put under fear). Bare threats do not justify
the essential requirement of fear of injury. Injury can be with respect to mind, body,
reputation or property. There is similarity between extortion under IPC and offence of
blackmail under the Theft Act, 1968. The latter finds its essentials in demand and
menaces, which is similar to delivery of property and element of threat/fear. These
sections dealing with offence of extortion under IPC also punish putting a person
under fear of injury separately, in the sense that if delivery of property is not done or
is interrupted, the accused can be made liable for his attempt atleast.
The only similarity between theft and extortion is that both are offences against
property and have dishonesty as a requirement. Otherwise, the major difference
between them is that extortion is carried out by over-powering the will of the owner,
while, in commission of theft the offender’s intention is always to take without that
person’s consent.

22