36

LAWOF CRIMES & CRIMINOILOGY (Scc. 378 to 380

Section 378

Theft.-Whoever intending to take dishonestly any moveable property

out of the possession of any person without that persons consent, mnoves that
property in oder to such taking, is said to commit thef

Explanation 1.-A thing so long as it is attached to the 'earth, not being moveable
property: is not the subject of thefi; 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 effects the verance, may
be 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 the 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 defintion may be expressed 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.
Illustrations.-(a) A cuts down a tree on Zs ground, with the intention of dishonestly
severed
taking the tree out of Zs possession without Z3 consent. Here, as soon as A has
the tree in order to such taking, he has committed theft.

(b) A puts a dogs in his pocket, and thus induces Zs dog to follow it. Here
bait for
ifAs intention he dishonestly to take the dog out of Z3 possession without Z's consent. A
has committed theft as soon as Zs dog has begun to follow A.

c) A meets of bullock carrying a box of treasure. He drives the bullock in a certain

direction, in order that he may dishonestly take the treasure. As soon as the bullock
hegins to move, A has committed theft of the treasure.
(d) A being Z3 servant, and entrusted by Z with the care of Zs plate, dishonestly
runs away with the plate, without Zs consent. A has committed thefi.

(e) Z, going on journey, entrusis his A, the keeper of a warehouse, till Z

plate to
shall return. A carries the plate to a goldsmith and sells it. Here the plate was not in 2s

possession. It could not therefore be taken out of Zs possession, and A has, not committed
trust.
theft, though he may have committed criminal breach of
which Z occupies. Here the
( Afinda ring belonging to Z on a table in the house
ring is in Zs possession and ifA dishonestly removes it, A commits theft.
(8 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
(h) A sees a ring belonging to Z lying on a table in Z's house. Not venturing to
 Sec.378to380] PUNISHMENT FOR THEFT
priate the ring
ring immed
is highlyimmedialely jor jear of search
misappra
where it 937
aa place
taking the ring impmbable
from the hiding place and that it will
ever he
and
detection A hides
imeof first moving the ring, commits selling it when found by 7 with the
the loss
the ring
intention
in

theft. is
forgotten Here
of
) A delivers his watch to Z, a A. at
owin
1o
to the jeweller jeweller to be
jeweller any debt for which regulated. Z
the carries is to his
a ienters
Secu the jeweller might lawfully
shop openly, takes his watch detain
shop A no
Here A, though he may have the
by force out of Zs hand, watch as
committed
m2ifted theft, inasmuch as what he did was criminal trespass and and carried
G A owes money to Z jor
not done
dishonestly assaul, has not
repairing the watch, and ifZ retains
a ocaurity for the debt, and A takes the the watch
possession, with the lawfully
watch out of Zs as
depriving Z of the as aproperty security jor his intention of
takes it dishonestly debt, he commits theft,
inasmuch as he
k) Again, if A having powned his watch
to Z, takes it out
Zs consent not having paid what he of Zs possession without
borrowed on the watch, he commits
watch is his own property, inasmuch as he take it theft, though the
dishonestly.
a)A takes article
belonging to Z out of Zs possession without Zs consent, with
an
the intention of keeping it until he obtains
from Z as a reward for its restoration. Here A
takes dishonestly: A has therefore committed theft.
(m) A being on friendly terms with Z, goes into Zs library in Zs absence, and takes
away a book without Zs express consent for the purpose merely of reading it, and with
the intention of returning it. Here, it is probable, that A may have conceived that he had
Zs implied consent to use Zs book. Ifthis was As impression. A has not committed theft.

A asks from Zs wife. She goes A money, food and clothes, which A knows to
n)
is authorised
belong to Z her husband. Here it is probable that A may conceive that wife
Zs
o give away alms. f this was As impression. A has not committed thef

property, which A knowsto

(OA is the paramour of Zs wife. She gives valuable
a

as she has not authority from

Z to give.
Delong to her husband 2, and to be such property
JA Takes the property dishonestly he commits thefi.
to Z to A s own property takes tha
(PA in good faith, believing property belonging he does not commit

Here, as A does not take dishonestly,

POperty out of B's possession.
thefi.

Section 379 wilh

shall be punished
commils thefi
runishment for
theft.-Whoever
extend to three years,
term which may
description fora
O n m e n t ofeither
Or with fine, or wilh boln. fraudulent
I o r r a n y
elonious taking, filchery
2938 LAWOFCRIMES& CRIMINOLOGY (Scc. 378 to 380

taking. looting. embezzlement, misappropriation, pilfering, purloining, purloinment,

robbery. stealing. swinding. thievery wrongful taking
Foreign Phrases: Contrectatio rei alienae animo furando, est furtum. The touching
or removirng of another s property, with an intention of stealing, is theft.

Section 380

Theft indwelling house, etc.-Whoever commits theft in any building,

tent or vessel, which building, tent or vessel is used as a human
usedfor the custody of property, shall be punished with dwelling, or
imprisonment of either
description for a term which may extend to seven years, and
to fine. shall also be liable

SYNOPSIS
1. Scope
35. Illegal Demand for Property
2. Ingredients
36. Theft by a trespasser
3. What is theft
S7. Share certificates
4. Intention & Theft
38. Certain type of Thiefs
5. Theft against himself
6. G) Store Sneaks
Dishonestly and Fraud ii) Purse-Snatchers
7. Out of possession of
any person (ii) Pickpockets
8. Under section 22 Movable
9. Offences
Property (iv) Bag-openers
against property in (v) Patch-pocket worker
common law
() Section 1-Historical Outline (vi) Seat-tipper
(ü) Section 2-Statutory Definition (vii) Pit-worker
(ii) Section 3-Possession in (vii) Pants-pocket worker
Common Law (ix) Lush-workers
10. Cases (x) Auto thiefs
11. Theft in 39. Robbers
and
Enterprises, Organisations 40. Suggestions
Departments Committed by 41. American Law
Public Servant
12. Theft in 42. Appropriation
vessel-jurisdiction
13. Taking need not be 43. Property
with intention of 44.
retaining property permanently Larceny
14. Oysters 45. Where there is no
15. Abandoned property 46. Facts which Bailment
16. Property
Negative an
may be valueless Apparent Consent
17. Procedure 47. Consent of the owner
18. Legal when lost implied
presumptionfrom goods are found
against head possession
19. 48.
Presumption
20. Joint Possession of family 49.
Property under Common Law
21. Restoration Characteristics of such things
a matter of
law
 378
to J80|
Sec.
ling which
regarding
which o
order
rder 51. The thing must be movable
Property
52. The thing must have an owner
22. may be made

23. D w e l l i n g H o u s e
53. Possession is evidence of ownership
Theft in England 54. Possession of co-owners, bailees,
Law of
The and Building servants
24. of Land
Meaning
55. The thing must have some valuue
25. Includes Lift
56. Characteristics which rendered the
26. Recovery

water
thing not larcenable at Common Law
Theft of 57. Possession
27.
28. Gas 58. Human Body
29. Electricity
by wife 59. Abetment
of property
Removal 60. Computer crime and The Information
30. to c o m m i t
theft
Attempt Technology Act, 2000
31.
32. Intellectual Property Information
33. T e c h n i c a l k n o w - h o w "
61. Relevant provisions of The
Technology Act, 2000
34. Blackmail

1. Scope 379
committed a "theft". While Section
has
defines as to when
a person
Section 378
defines its punishment. definition
and according to the
Sec. 378 must be dishonest intention of
the purpose of either with the
The taking for the taking may be
difference in the
In Section 24, Penal Code, It makes no
of fdishonestly'. another.
to one person o r
wrongful loss to benefit to himself.'
causing wrongful gain intended to procure any personal
accused's guilt that
the act was not of the property
is dishonest moving
there
is contemplated
where
secured. But for
moving the
offence of theft it is
The to which the otfence
is detached from that the property
for moving
even though the is secured. But
property
from that to which it
be still an attempt.
detached
property is though it may
of thett is not contemplated,

2. Ingredients
() A person
commits theft.
committed in a n y
) The theft is
(a) building,
(b) tent or,
(c) vessel.
or vesscl i s
(1) The building, tent dwelling or,
human
(a) used as a property.
custody of
(6) used for the out of his
or a person
3. What is theft movable
property with
moving a
to the tak1ng of
theproperty
consists in (1) in order
of theft. moving being
ssIon
0Sserinn nithout hic consent (2) the
 2940 LAWOFCRIMES& CRIMINOLOGY IScc.378 to380
a dishoncst intention. Thus. (1) the abscnce ofthe person's conscnt at the time of moving, and
(2) the prescnce of dishonest intention in so taking and at thc timc, arc the essential ingrcdients
of the offence of theft3
4. Intention & Theft
On intention and motive, we only need to refer to Corpus Juris Secundum
Statement of American Law, Vol. 22). It is hcld at
(A Contemporary
116
page (Criminal Law) as under
"Intention
(a)In general;
(6) Specific or
general intent crimes.
An actual intent to commit
the
element of an attempt to commit a particular crime towards which the act moves is a necessary
crime. Although the intent must be
law, and may not be inferred from the one in fact, not
merely in
overt act alone, it
may be inferred from the
Where intent is a
necessary ingredient of an offence, the
circumstances"."
prosecution. Intention is the gist of the offence. In burden of proof lies on the
dishonest intention must be order to constitute theft" the factor of
of the taker which must present. Intention is the gist of the offence of theft: It is the intention
determine whether taking or the
The intention to take moving of a thing is theft.
dishonestly
illustration (h). In order to ascertain the must exist at the time of the
existence or otherwise of
moving of the property. See
necessary that there must be a dishonest intention it is not
intention of the theif was or was wrongful gain to the theft, it does not matter
removal of movable
not to derive
profit from the property; it is whether the
property causes wrongful loss to the sufficient if the
It is true that owner.5
Mohar Singh is
the revolver
against proved to have disarmed Vijai Ram; but
his adversaries and then he
no
question of his having taken the surrendered it to the police at the earliest. did not use
intention appears to have revolver with intent to steal. There is thus
been to cut short the On the other
It is the intention shedding of blood. hand, his only
of the taker which
thing is theft. The intention to take must
determine whether the taking or
gain to one
person or dishonestly
wrongful loss to another
exists when the taker
intends to cause moving of a
India to Pakistan
without the
permission person." Where an aircraft was wrongful
of
Government and the the
to cause loss taken out of
to the Government to whom it
The dishonest
intention
act of the
accused was heldbelonged
to be
it was considered
to cause a theft9
known as animus wrongful gain
indicate that the furandi.
to oneself or
Where there is an
taking movable
of absence of animus wrongful loss to another is
act
though amounting to a civil property is in the assertion offurandi a bona
and the
circumstances
3. K.N.
injury does not fall within
the offence of fide claim of right, the
Mchra State
vs.
of theft.10
Bengal vs. Rajastha,
4. State
5. of West AIR 1957 SC
369: 1957 SCC 192.
R. vs. Mohammed
Steane, (1947) 1 All ER Khalid, AIR
6.
Ahmed v. State 813 (CA). 1995 S.C. 785:
AIR 1995 SCC
Mohar Singh and 1967 Raj 190: 1967 Cr LJ
(Cr) 266: (1995) 1
8. others vs. State of 1053, Crimes. 397.
Madarec
338, Chowkeedar (1865) 3 WR (Cr.)
4 Bom
LR 936.
Rajasthan, 1980 Supp. S.C.c.
9. Bhurasing
10.
Mehra K.N., AIR (1934) 29 SLR
1957 SC
2,3; Lal
121:36 Cri. LJ Mohammad 655; 198 S.C.C. (Cr.) 552.
(1931)
Chandikumar 369: 1310. 12 PLT
556:32 Cri.
vs.
Abanidhar, AIR(1957) SCJ 386:
1965 SG 5Ri (1957) SCR 623
LJ 739:
(1931) AIR (P)
 Sec. 378to
380] INTENTION AND THEFT
Even an intention to wrongful gain or wrongful loss .941
they were temporarily
Ifa person
seizedcattle on the ground that rily dishoncst 1 i

that he was taking them

pound he trespassing on his land
out
and gives thcm to
to
crops,
however mistakcn commits and
he may be
about his right to no thcft becausc damagjng
dishonest inteni
dishonestintention, he has
.an whet
The qucstion whetlher the accuscd had that land or n
any dishoncst crop 2
On the prosccution to intention is a
Burdcn is on
prove the cxistence of qucstion of fact
thc.accuscd, acting
bonafide in the interest of dishoncst intcntion
14
Where.
his
fishemeding
tishermen
ching on his masters tisheries took
the orders of his charge of the employcrs,
ncts,
finding
and roctaincd party
of a

ofthem, employers, it was held that the accuscd was possession

The intention to take dishonestly
15 dis must exist at the not guilty of
theft.
time of the
If
vide illustration (h)]. the act done is not done animo moving the
of
vide the mer iis kept out of furandi, it will not amount toproperty
Where
owner
possession temporaily not with any such intention, but theft 1
t of
the object of causing him trouble in the sense of mere
mental anxiety, and with thc only
with
rion of restoring the thing to him without exacting or ultimate
expecting any
dnes not amount to causing wrongrul loSS in any sense." The accusedrecompcnse, the detention
went to a police station
oke a complaint and found that the constables on duty were
sleeping and were not willing
to attend to him. In order to support his grievance to the Police Superintendent the accused
nicked up a handcuft from the police station and took it with him. The accuscd had no intention
p
of causing wrongful loss to the police hence he cannot be convicted of the offence of theft. 3
Otherwise, a person keeping concealed for a time a valuable thing belonging to a friend, who is
a careless man, in jest, for the purpose of causing him a little anxiety or in earnest for the
purpose of teaching him the salutary lesson of being careful, will be guilty of theft, a result
which the Legislature could never have intended. Where the the accuscd found the complaimt s
it broken from its
pony at large, not within the compound or the stable of the complaint, having
tether to which it had been tied the previous night, and mounted it, and took a ride on it, returning
home on the following day in the evening, it was held that the
accused had not committed

Where a respectable person pinched away

the cycle of another person, as his own
tneit. and he
at the time was missing, and brought it back
and there was no criminal intention
yie it was held that his act did not
himself,
intend
ud not intend by his act to cause wrongful gainit was held that his act did not amount to thet."
to

s act to cause wrongful gain to himself, sale price

the complainant and received part ofthe
sold it to
cused, the owner of a barge, end to the contract unless the money' were
purchase monev, and threatened to put
an ner
IC accused took the barge into
Within a specified time. On
failure of payment, the as
nCT the offence of
theft. It was held that imas mucn
not be
for which she was charged with in her in law,
she could
S1n the barge was still
believed that the possession of
d
11. AIR
1959 SC 1390. l8.
Cr LJ
State, AIR 1965 SC 926: (1965)) 2
13 ratan vs.
AIR 1960AP S69: 1960 Cr LJ 1414
4. AIR 1953 Mad 516: 1953 Cr LJ 1039. Shcomeshur
Rai (1888)
8 AWN
9
79. See
Holder (1866) 6 WR (Cr)
66. Bailev 0CrLRI CCR 347.
Bailey (1872)
Nabi Baksh (1897) 25 Cal 416.
18. AIR (P) 459.
1 a l Yedu Khalse 1982 Cri. LJ 1873 (Bom) LJ 564:
(1917)
19. 18 Cri.
Rup 1al Singh D u r g a Prasad Dubey (1917)
20. Ramaul Tu(1930) AIR (B) 488.
 2942
dishoncst intond
she had not shown any cntion in seiz
convictod of
theti as
accuscd with the
imtention of taking len
pos3C3 teme
king levy from thc complaint
Where the
barge abscnce
amount of
ana tne levy was paid to
add from his ficld in
his
the remo
accused could
not be hecld guilty
of theft.2
aftcr the thcft in
complantnt, te
was found soon
The fact that the appellant as himsclf
shows that he was
thicf anl
himsclf the sSIon of
and not thec.
of a sSCSSIOn
very lare
stolen articles
number of
Thc present is not a casce wherein
One or two or a very few of
Stolen arti
of eceiver
stolen
goods. soon after the theft. On the
found in the possession of the
appellant
number and the nature of the
contrary, thc
the bulk.
bulk of stolen
articles were recovered from him. The
stolen articles reco
theft coupled with the other circumstancan
from the appcllant soon after the
himself committed the theft 23
circumstances
of the case warVered
the presumption that the appellant
If the intention of intruders was theft, nothing was stolen and the seven ine
two of which were caused while resisting the attack, were not necessary to ho WOund
deceased by the thieves. Whoever caused the injuries on the deceased, had the the
cause her death. It is inconceivable that the young couple while alone inside
the inner ro om at
night would keep the outer door of the house open to enable thieves to enter 24
The fact that
fairly large sum was paid to the appellant and his
a
their wages would be known to others apart from the co-workers bv wava
the money was traced to the
appellant and his companions. No
nat af
appellant. Therefore, the accused cannot be connected with the
crimes of murder merely becausc the motive
for the crime was theft.25
Theft and hire-purchase
agreement. Prospective buyor
theft. As the financier exercised instituting criminal case alleging
his bona fide claim of
right, no offence was made out.
Theft-Mens rea and dishonest
hire purchase intention. Absence of. Bus purchased A-2 under a
agreement. Subscquently the bus sold to by
the
financier. Financier taking complianant. Complainant ne
in
payment of instalment to the deraulang
A-I and A-2.
Held, offence of theft not possession of the bus witn
i
5. Theft against made out.27
himself
A
person cannot consent
6.
to the theft of
Dishonestly and Fraud property from himself .

defined"Dishonestly" has been

by Sec. 25 of this defined in Sec. 24
and 25 as act. See the of this code while been
defined are comentry under
ry under "Frau However Sec. 24
Sec. 24 reproduced under -
as the
the relevant secuo1
relevant:sections.

Scc. 25
"Dishonestwrongful
gain to one person or ly".-Whoever
does
loss to anything intention of causing wrongt
another
with intend
22. Venknn
"Fradulently"-A
to
defraud but not personi
Porson athern
is
person, is said to do that
said to do a thinp
thing fradulently
froll
uia thing
if he docs a
onesty
 frand is meant an intention to deceive, whether it be from any cxpcctatuon of advantaye
or from ill-will towards another28
to the party i n t e n t to defraud'
A nerson is said to do a thing fraudulently if he does that thing
with 'intent t defraud but
t h e deprivation
int
o r intendcd
deprivation of property
otherwise. The word "defraud' implics the
s
deprivation or

not 29
or result
of the fraud
as a part
was removed openly in the light of day
and thcre was no qucstion of
Where property the word fraud
clandestine action, deception or of anything clse which
mCealment. secrecy,
said to be made or done fraudulently.30
oests. the act could not be
element of deceit
Court the expression 'defraud' includes an
According to the Supreme while it is an important
of the definition of the word dishonestly'
Deceit is not an ingredient a pecuniary or
of the definition of the word 'fraudulently'. The former involves
ingredient element. Further, the
loss while the latter by construction excludes that
economic gain or
used in the various sections
the two expressions 'dishonestly' and 'fraudulently'
ixtaposition of one may give colour to
Code indicates their close affinity and therefore the definition of
of the or wrongful loss is the necessary
To illustrate, in the definition of "dishonestly, wrongful gain
other. the expression 'fraudulently'
Both need not exist, one would be enough. So too, if
ingredient. should be something other than pecuniary
or
held to involve the element of injury
were to be another and vice
almost always an to one causes loss to
advantage
economic loss. Though
not necessarily be so.
versa, it need is
relate an advantage to
which the party practising deceit
The word 'dishonestly' must to "dishonestly"32
of the definition of the word
entitled.3" Deceit is not an ingredient fraudulent.33 The
not legally dishonest without being
without being dishonest or
An act may be fraudulent is done. Intention is very important.
A person
intention with which it
determining factor is the the property it is his intention
to c a u s e a gain
dishonest intention, if in taking
can be said to have "dishonesty" is restricted
to which he is not entitled.34 The word
by unlawful means of property loss. A person can be said to have a dishonest intention if
in
to an intention to cause wrongful unlawful means of the property
to c a u s e wrongful gains to himself by
taking property he intends 35 different. The word
word 'dishonestly' used in the Code is
The that the
which he is not entitled to. from the consequences of
a man's act
parlance. It is
dishonestly' used is in ordinary
intention of the accused."
court has to presume the to make up a
fraudulent act. The elements
A dishonest act need not
necessarily be a
The word "defraud"
in cases secrecy.
intention to deceive and
some
traudulent act are deceit or The injury need not
deceived.
deceit and injury to the person
involves two elements namely in body mind or reputation.
harm, to any person,
be any loss, any
De pecuniary. It may 1960 Cr LJ 1414.
Andh. Pra. 569:
Ramachandrareddi, AIR 1960 13 Bom S15.
28. In re also Uithal, ILR
(1891) 2 East 92; Sce
29 Per he Blanche, J in Haycraft,
30. Abbas Ali (1897) 25 Cal 512, (521) (FB).
AIR 1963 SC 1572.
31. Dr. Vimla vs. Delhi Administration,
2 SCR 55.
32. Krishnarao, 1953 Cr LJ 897. 434; (1963) Sup
1963 SC 1572: (1963) 2 Cr LJ
33 Delhi Administration, AIR
imla vs.
34. Kedar Nath, 5 CWN 897.
Cr LJ 1053.
Ahmed, AlR 1967 Raj 190: 1967
S.
36. Madhavan, 1977 Cr LJ 72.
37. AIR 1959 AP 530. Pat 362.
(96) 2 Cr LJ 364: AIR 1960 I020:(1963) Sun ? SSR S5.
 convicted of theft ás she had not shown any dishoncst intention in scizing possCssion of the
barge.21 Where the accuscd with the intcntion of taking levy from thc complaint removed
to the complaint, the
paddy from his ficld in his abscnce and22the amount of levy was paid
accused could not be held guilty of thcft
in posscssion of a very large
The fact that the appellant was found soon after the thcft
number of stolen articles shows that he was himsclf the thief
and not the recciver of stolen
or a very few of the stolen
articles were
goods. The present is not a case wherein one or two
found in the possession of the appellant soon after the theft. On
the contrary, the bulk of stolen
articles were recovered from him. The number and the nature of
the stolen articles recovered
of the case warrant
from the appellant soon after the theft coupled with the other circumstances
the presumption that the appellant himself committed the theft."
incised wounds,
If the intention of intruders was theft, nothing was stolen and the seven
thee
two of which were caused while resisting the attack, were not necessary to be inflicted on
had the intention to
deceased by the thieves. Whoever caused the injuries on the deceased,
cause her death. It is inconceivable that the young couple
while alone inside the inner room at
to enter.24
nightwould keep the outer door of the house open to enable thieves
his co-workers by way of
The fact that a fairly large sum was paid to the appellant and of
from the appellant and his companions. No part
their wages would be known to others apart
the accused cannot be connected with the
the money was traced to the appellant. Therefore,
motive for the crime was theft.25
crimes of murder merely because the
instituting criminal case alleging
Theft and hire-purchase agreement. Prospective buyor made out.25
bona fide claim of right, no offence was
theft. As the financier exercised his
Absence of. Bus purchased by A-2 under a
Theft-Mens rea and dishonest intention.
bus sold to the complianant. Complainant defaulting
hire purchase agreement. Subsequently the the bus with the help of
of instalment to the financier. Financier taking possession of
in payment
not made out.2/
A-1 and A-2. Held, offence of theft
5. Theft against himself
A person cannot consent to the theft of property from himself.

6. Dishonestly and Fraud

been
been defined in Sec. 24 of this code while "Fradulently" has
Dishonestly" has Sec. 24
this See the comentry under the relevant sections. However
defined by Sec. 25 of act.
under-
and 25 as defined are reproduced as
with the intention of causing wrongful
Sec. 24 Dishonestly"-Whoever does anything
do that thing "dishonesty".
loss to another person, is said to
gain to one person or wrongful
Scc. 25 Fradulently"-A pcrson is said to do a thing
fradulently if he does that thing
with intend to defraud but not otherwise.

22 Venkatanarayana 1979 Cri. LJ (NOC) 134 (AP).

3 SCC 885: 1972 Cr LJ 1696.
Avodh1/Sin fC 7501: 1972 SCG(Gr) 786; (1972)
 Sec. 378 to 380] DISHONESTLY AND FRAUD 2943

By fraud is meant an intention to deccive, whcther it bc from any cxpcctation of advantage

to the party or from ill-will towards another.28
Apersonis said to doa thing fraudulently if he docs that thing with 'intcnt to defraud but
not otherwise. The word 'defraud' implics the deprivation or intended deprivation of propcrty
as a part or result of the fraud.29
Where property was removed openly in the light of day and thcre was no question of
concealment, secrecy, clandestine action, deception or of anything clse which the word 'fraud'
suggests, the act could not be said to be made or done fraudulently30
According to the Supreme Court the expression 'defraud' includes an clement of deceit
Deceit is not an ingredient of the definition of the word 'dishonestly' while it is an important
ingredicnt of the definition of the word 'fraudulently'. The former involves a pecuniary or
economic gain or loss while the latter by construction excludes that element. Further, the
two expressions 'dishonestly' and 'fraudulently' used in the various sections
juxtaposition of the
of the Code indicates their close affinity and thercfore the definition of one may give colour to

other. To illustrate, in the definition of 'dishonestly', wrongful gain or wrongful loss is the necessary
ingredient. Both need not exist, one would be enough. So too, if the expression 'fraudulently'
other than pecuniary or
were to be held to involve the element of injury should be something
to another and vice
economic loss. Though almost always an advantage to one causes loss
versa, it need not necessarily be so.
the party practising deceit is
The word 'dishonestly' must relate to an advantage to which
not legally entitled.3" Deceit is not an ingredient
of the definition of the word "dishonestly"32
or dishonest without being
fraudulent.33 The
An act may be fraudulent without being dishonest
it is done. Intention is very important. A person
determining factor is the intention with which
the property it is his intention to cause a gain
can be said to have dishonest intention, if in taking

unlawful means of property to which he

is not entitled.34 The word "dishonesty" is restricted
by intention if in
to an intention to cause wrongful loss.
A person can be said to have a dishonest
by unlawful means of the property
taking property he intends to cause wrongful gains himself
to
used in the Code is different. The word
which he is not entitled to.35 The word 'dishonestly' act that the
used is in ordinary parlanee.3 It is from the consequences of a man's
dishonestly'
court has to presume the intention of the accused.
make up a
be fraudulent act. The elements to
A dishonest act neced not necessarily a
in some cases secrecy.
The word "defraud"
intention to deceive and
fraudulent act are deceit or Thc injury need not
the deceived.
involves two elements namely deceit and injury
to person *

in body mind or reputation.

be pecuniary. It may be any loss, any harm,
to any person,
LJ 1414.
Andh. Pra. 569: 1960 Cr
28. In re Ramachandrareddi, AIR 1960 IILR 13 Bom 515.
2 East 92; See also Uithal,
29. Per he Blanche, J in Haycraft, (1891)
30. Abbas Ali (1897) 25 Cal 512, (521) (FB).
AIR 1963 SC 1572.
31. Dr. Vimla vs. Delhi Administration,
Krishnarao, 1953 Cr LJ 897. 2 SCR 55.
32. Cr LJ 434; (1963) Sup
AIR 1963 SC 1572: (1963) 2
33 Vimla vs. Delhi Administration,
CWN 897.
34. Kedar Nath. LJ 1053.
35. Ahmed, AIR 1967 Raj 190: 1967 Cr
72.
36. Madhavan, 1977 Cr LJ
In 10SO AP 530
 2944 LAWOFCRIMES&CRIMINOLOGGY Scc. 37% to 30

On4-12-1989, an orderofattachment warrant was passcd. On 21.12.1989, thc respondent

Sanwaldas came to the Officc of the Tchsildar and objcctcd to the lcgality of the ordcr of
issuing the demand letter. This fact was immediatcly intimatcd by the Tehsildar to the District
Magistrate on the same day. The respondent Sanwaldas then filed a complaint allcging that
while had had gone to the Tchsil Ofice on his scooter, the Tehsildar forcibly kept the scooter
and, as such, has committced an offence under Scction 379 of the Indian Penal Code. It may be
stated that after the seizure of the scooter, the Tehsildar directed for the auctioning of the same
and thescooter was ultimately auctioned on 22.1.1990. On the basis of the complaint filed by
the respondent Sanwaldas, the learned Judicial Magistrate, First Class, Damoh took cognizance
of the offence and dirccted issuance of process against the Tehsildar. The Tehsildar appeared
before the Magistrate on 2-3-1990 and filed an application raising objection to the order taking
cognizance of the offence on the ground that the acts complained of were in discharge of the
official duty of the Tehsildar and,
therefore, in the absence of sanction under Section 197 of the
Code of Criminal Procedure, the Court will have not
jurisdiction to entertain the complaint. The
Supreme Court upheld the order of Session Judge holding that no cognizance without sanction
u/sec. 197 Cr PC can be taken.40
To prove an offence of theft, dishonest intention of the accused in
has to be established. In order to prove dishonest intention the
removing the property
question of title to the property
certainly will enter into the picture. A bona fide claim of right would be a good defence in a
charge of theft.41 It is essential for the offence of theft that the removal of the property must
however been with the intention to take it
dishonestly.42 The concealment of an already committed
fraud is also a fraud.43 A fraud is an act of deliberate
deception with the design of securing
something by taking unfair advantage of another. It is a deception in order to gain by anotherr's
loss. It is a cheating intended to
get an advantage.4
Fraud, if can be discovered by the person on whom it is committed due
it is not proved. It is neither a case of by diligence, then
suggestio falsi or suppressio veri."
An illiterate woman filed a criminal
of a sale deed by obtaining her
complaint that a fraud had been practised in respect
to know about the fraud on the
thumb-impression by making misrepresentation. She had come
very next day. If that be so, it is not possible to believe that she
would not have implicated any of the accused
persons in her complaint Ex PA dated November
23, 1968 or in the FlIR lodged some two months later on 15th
indignation must have been aroused as against the January, 1969. Her anger and
name them, when she knew appellants and she would not have failed to
that the appellants had
she has stated that practised a fraud on her. In her evidence,
original accused No. 2, Sumer Singh, had maintained the
of
help. As soon as PW-27 realised that a fraud hd been pretence helping
her to obtain Police
must have also
realised that accused No. 2, Sumer practised on her, she
event she would not have failed to mention his nameSingh, in Ex
was one of the conspirators. In that
968 that is to say, four days after the fraud was PA handed over on 23rd
November,
69 lodged two months later. It is discovered or in the FIR dated January 15,
40.
41.
N.K. Ogle vs.
AIR 1962 Sanwa das, AIR 1999
incomprehensible why if a fraud had been practised and ner
42. SC
88 Trip 25: 1437: 1999 3 SCC 284.
43. RKCWN 33G: 1Q80 1962(1) Cr LJ
n. 7h
 Sec. 378 to 380]
DISHONESTLY AND FRAUD
thumb-imprcssion had becn obtained 294
considcration of Rs. 30,000, shedocument
on a
lands for a purporting to bc a salc decd covcying her
failcd to initiate civil
protecting rights. It is not possible to belicve when
her procccdings for thc purposc of
was in jcopardy, she would havc rest that her title to
property worth Rs. 30,000
content with
implicated without doing anything morc in orderlodging complaint whercin only PW-5, Bhimal,
to protoct her title to the was
It was not unlikely that sonne propcrty in qucstion *
fertilisers had in fact bcen delivered to
officials at the destination. On the basis of such the Governmcnt
them. It is not the case of the delivery, the certificates had bcen
issucd by
prosccution that the quality of the fertilisers
Cxamined by the officers at the recciving end and they had was
required to be
exercise. It has becen rightly contended that it was not proper infrastructure to make such
established that the fertilisers
available anywhere in the locality so that it was not was not
possible
after selling the original consignment. Simply on the basis of replace
to the quantity of fertiliser
evidence given by lorry owners
that their lorries did not carry the fertiliser or such lorries
had gone to different places and some
fertilisers were sold by the dealers to other
other be
persons, non-delivery
of fertiliser at destination
by
fully ruled out.47
means can not

The respondent agreed to make and sell to an

unknown third party certain device for
altering electricity meter to show that less electricity has been consumed. The agreement to
manufacture and sell dishonest device, the sole
purpose of which was to cause loss to the
Electricity Board, this act of the respondents constituted a conspiracy to defraud and it is
irrelevant that the third party merely intended to resell the device and not to use themselves.
This is offence against common law.
Unless there is wrongful gain to one person, or wrongful loss to another, an act would not
be dishonest'. It is not nccessary for a thing to be donce'dishonestly' that there should be an
intention to cause both wrongful gain and wrongful loss.49 Except so far as loss or detriment is
almost necessarily involved when an advantage is obtained, any intention of causing loss is a
matter of inference. The wrongful gain or wrongful loss ivolved in 'dishonestly' is pecuniary
or economic gain or loss. Thus, the mere antedating of a receipt cannot be said to have been
done dishonestly.The term 'dishonestly must relate to an advantage to which a party
perpetrating a deceit is not legally or equitably entitled. Thus where A, although cntitled to
possession of his house from B, sues B for arrears of rent basing his claim on a rent note which
is found to be not genuine. A, not being entitled to rent at a rate fixed by the rent note, clearly
intends to cause wrongful gain.51
the intention wvhich is
In determiningperson has acted 'dishonestly' or not, it is
where a
facts within his
important and not whether a person is under a legal duty to disclose or suppress
loss to another
knowledge. Thercfore, where a person with the intention of causing wrongful
makes a false representation.to him or suppresses certain facts,
he will be said to have acted
state the truth.2
dishonestly even if the law doesnot recquire him to
686: 1984 Cr LJ 164: 1984
1984 SCC (Cr) 355: (1984) 1 SCC
46. Lalchand vs.State of Haryana, AIR 1984 SC 226:

Cr App r(SC) 113: (1984) 1 Crimes 337. 2128: 1988 SCC (Cr) 864: 1995 Cr LJ 3663.
47. A. Jayaram vs. State ofAndhra Pradesh, AIR 1995 SC
48. R. Hollin Shead,
vs. (1985) 2 All ER 769.
1053.
49. Ahmed (1967) AIR Raj 190: (1967) Cr. LJ
S0. JagdishPrasad 1981 Raj Cr. C 101.
S1. Krishnarao (1953) Cr. LJ 979.
52. Kuldip Singh (1954) Pun 691.
 2946 LAWOF CRIMES &CRIMINOLOGY
Scc. 378 to 3)
The law takes into account the primary or immcdiate intention
and not the
remote. Thus. if A takes an article sccondaru
ary
belonging to Z out of Z s posscssion, without Z's cons
with the intention of
kccping it until he obtaims money from Z as a reward for its
takcs it dishoncstly and commits thcft." As restoration
every man is presumcd to intecnd thc
consequenccs of his act, it is from the consequences that the Court has natural
often to
intention of the accused in
doing a particular act. The law does not look to the presume the
the
only to the intention. Motive and intention are two different motive: it looke
ultimate and. good or bad, which a things. Motive is directed to the
person hopes to secure; his intention is
immediate effects of his acts. End cannot concerned with the
not
justify the intention. justify the means, in other language, the motive does
The existence of
the unauthorised means for abstraction is
abstraction by some
person. To bring home the prima facie evidence of dishonest
prosecution must also charge under S. 39 of the
responsible for the tampering.Electricity
prove that consumer is Act, the
must
prove beyond reasonable doubt.55 The prosecution
If for the
purpose of the offence under S.
entries made
by accused in the gate passes were447-A,
the I.P. Code, the Court
found that the
wilfully or with a view to defraud and made
inadvertently and negligently but not
Court, later to find, on the that finding became
charge under S. 420, I.P. Code that final, it would not be open to the
made not
inadvertently, but dishonestly the entries on the
passes were
A close
scrutiny
circulars did not take a
of the evidence and records
very serious view
show that the superior officers in
dated 2.8.1967, the
Director of of the credit sale to the cultivators. In spite of the
gave only a warning that the Agriculture,
U.P. while fact, by circular
impressing
erring officials would be held the
prohibition of credit sale,
outstanding amount57 personally responsible to pay the
Where in execution of a
person was wrongly taken decree against a cetain person,
property, it was held that no away by the bailiff and the ownerproperty, belonging to another
and his associates
.

movable property by a Court offence was committed under this took that
Amin is illegal then in section58 If an attachment of a
wrongful loss is caused to the Amin or removing it from the Amin's
the accused possession,
cannot be considercd to have by retaining it with no
made any them, or his
Where there is no wrongful gain, master
the offence committed proof of 'taking' of the
is not theft but property found in the
who criminal possession of the accused,
of
was in charge of receiving parccls and
parcel of imitation stones,
a
misappropriation.
other mail was accuscd Thus, where a postal clerk
it was hcld that of having
means and there was no taking, he could not be
as the
accused had got the committed theft
$3. Section 378, convicted of theft.51 parcel by lawful
$4.
Sheodeni Singhillustration (1).
agarnath Singh (1961) vs. B.S.
II Cr. LJ
364.
Amritlal Ratilal Mchta vs.Ramaswamy, AIR 1966 SC
4: 1980 Cr. LR (SC) 48: State of Gujarat, AIR 1980849: 1966 Cr. LJ 697:
(1966) 1
ndra (1980) 2 SC 301: 1980 SCC (Cr) 81: SCR 885.
623 Pratap Narain Singh State SCR 72: (1980) 2 SCR 72: 1980 UJ (1980) 1 SCC 121: 1980 Cr. LJ
ha i of
vs.
Uttar (SC) 79:
S9. ahana (1941)
Madhavan 1816:
43 PLR (1991) 2 SCR 88: 1991 Cr. Pradesh, AIR 1991 SC 1394: 1980 Cr. App R (SC) 1.
1991 SCC (Cr) 482:
.6. Pillai 162 42 Cri. LJ App R (SC) 208: JT
Shivbashia
Tilak (1879) (1966) Cri. LJ 728. 601:(1941) (1991) 2 SC 86: (1991) 2 SCC
Raj Kohli Unrep
1011 Cr C 1
AIR (L) 217. (1991) Crimes
2 183.
 Sec. 378 to 380]
DISHONESTLY ANID FRAUD
where thc complaint 's
aby anothcr student(ex-student's) bag was removcd
from him and
2947

ets the Principal informedand the

suspecting that the bag
might
handcd over to the
contain
fectead of rcturning the bat to the complainant's father that the bag was in his objcctionable
somc
d that complainant, it was
dishonest intention a s not proved cither handcd ovcr to the possCs3ion but
police
against thc student who removcd station, it was
agains the Principal and Vice-Principal in
liable to be quashed 2 rcfusing to return it and the entirc the bag or
proceedings werc
Having noticed the definition and
with the definition of "theft", as set outingredicnts
it is
neccssary to have a comparative
in the Theft
Act, 1968 of U.K. Theft is evaluation
nerson is guilty of thett if he defined as "A
dishonestly appropriates property
intention of permanently depriving the other of belonging to another
it, and "theft' and 'steal' shall be with the
accordingly." There is a marked difference in the construed
law and English law. ingredients constituting
Wrongful gain is not an ingredient under the theft under Indian
misappropriation is an ingredient in Code while dishonest
English law. In fact the definition in
what was larcency, embezzlement and
fraudulent conversion under the oldEnglish
law rolls up
English law the thief at the time of the law. Again, under
appropriation
of his property. Under the Code, if movable
must intend to deprive another
permanently
property is taken without consent, even if there
was intention to retun it at a later
date, it would nonetheless be theft.
A fraud is an act of deliberate
unfair advantage of another. It is a
deception with the design of securing something by taking
deception in order to gain by another's loss. It is a cheating
intended to get an advantage.
It was not
unlikely thatfertilisers had in fact becn delivered to the Government
some
officials at the destination. On the basis of such delivery, the certificates had been issued
by
them. It is not the case of the prosecution that the quality of the fertilisers was required to be
examined by the officers at the receiving end and they had proper infrastructure to make such
exercise. It ha been rightly contended that it was not established that the fertilisers was not
available anywhere in the locality so that it was not possible to replace the quanity of fertiliser
after selling the original consignment. Simply on the basis of evidence given by lorry owners
that their lorries did not carry the fertiliser or such lorries had gone to different places and some

fertilisers were sold by the dealers to persons, non-delivery of fertiliser at destination by

other
other means can not be fully-ruled out.64
7. Out of possession of any person
and a
An offence under 379 of the Penal Code is an offence against possession,
sec.
of which he was already in
peTSon cannot, therefore, be convicted of stealing something
tree stand1ng on the land
pOssession, who is in possession cuts down a
Thus when the tenant constitute thett it is
offence of theft is committed. To
Cmoves thcreof,
the wood no
who has an
against his wish, from the custody of a person
C l e n t if property is removed
7
pparent title, or even a colour of right, to such property.

Wavikar 1981 Cri. LJ

1613 (Bom.).
Kairikar (Dr. B R) v. Uday Bhalchandra AIR 1994 SC 853: (1994) 1 SCC 1
Naidu vs. Jagannath, 3663.
1988 SCC (Cr) 864: 1995 Cr LJ
64 nengalvaraya vs. State of Andhra Pradesh,
AIR 1995 SC 2128:
ayaram LJ 133: 30 Cal WN 359.
65 1925 Cal 1020: 27 Cr.
Garib Haji v. Muchiram Sahu AIR
66.
naikh 472 37 Cr. LJ 91 :
16 Pat LT 645.
am Brich Lal v. Emperor AlR 1935 Pat 135.
67, Quaon 1 Pom Ram ILR 9 Bom.
Santa
 2948
LAWOFCRIMES&CRIMINOLOGY
Sc. 378 to 380
Where cvidence of possession is found
the accused was convicted of
unsatisfactory, there would be no theft 68 .
having dishonestly carricd away the producc ofa tamarinl here
which the accused contendcd was sold to
him, it was hcld that the conviction was trec
absence of a finding upon cither of the bad in tho
owner of the
qucstions, whcther the accused was or was not tho
produce, or whcther the complainant had or had not a right to
tre posscssion of the
To prove offence of theft it is not
an
movable property in enough if the possession of the complainant
qucstion established. Dishonest intention of the accused in
is of the
property has be established in addition. In
order to prove dishoncst intention removing the
to
title to the the question of
property certainly will enter into the
defence in a charge of theft.
When the accused sets
picture. A bonafide claim of right would
be
propcrty which he took away from the up the defence that he had a claim good
to the
dishonest intention to show that complainant
this so-called claim was
it is for the
prosecution to establish the
cloak to conccal his not made in
good faith, but was only a
dishonest intention and that
knowledge of the accused himself. It there was no substance in
be the claim to the
of his claim to the may that the accused acted
property in dispossessing the illegally even on the basis
cannot be found
guilty by holding that he acted complainant, but in a case of
thet, the accused
can be established
only by proof of the dishonest illegally in
dispossessingg complainant. Theft
the
accused may be liable for such intention and not by
other section of the illegality in tort or proof of illegality. The
Penal Code 70 under civil law or may be guilty under some
In Osman
Mistry vs.
order undcr sec. 144 Code Atul Krishna Ghosh," on account of
going on land and exercising acts
of Criminal Procedure dispute concerning land, an
of possession. While
was
passed prohibiting both
party went to the land and cut that order was still in parties from
as it could not
be said that the
away paddy. It was held that no operation, one
offence of theft was
land was in committed
The accused went to possession of the
opposite party.
godown and the accused railway godown with a carter. The latter removed a
a

bag. The bag consisted of accompanied the carter to his

house and there took bag from the
was held that the pilferings from a number of
bag bcing in the bags consigned to different delivery of the
actually taking it out of the possession of the
railway as bailee until it left the persons. It
godown
guilty of theft."2 The wax in the was theft and thät the accused
and the cartman godown,
the
molten state into the company's refinery suddenly caught fire and were jointly
adjoining rivers
freely bought and sold in the market. where from it was collected flowed out in a
The by the general public and was
unwilling to undertake tocompany permitted the salvage which they
were unable or
inform the general continue. No steps were themsclves
public of any intention to assert ownership over
taken by the
company to
company must be deemed to have the wax. It was held
of a press abandoned its right of that the
announcement after the
was immaterial3 salvage ownership over the wax
and the issue
was
complete in assertion of its right by the
68. 1974
company
Chand LR
69. Chinna Garata v.(Cri.) 359.
Emperor 11 Cr. LJ 484 8 Mad
handra
(1) Cr. L.J
685.
v.
Radha Ballav AIR LT 118.
1962 Tripura 25:
AIR 1949 1962 (1) Cr. LJ
1273. Cal
Souki Chand 632 51 Cr. LJ 97.
v.
766; see also
Dojakhai v. Khamjathang
Tan Soon
Liv. Emperor
Burma
AIR 1918
Pat
1961|
Oil Co.
Ltd.
314: 19 cr. LI
L 884: 47 Ind O
AlR 1
1001
 OUT
Sec.
378 to 380]
OFPOSSESSION OF ANY PERSON
re htllocks follow
bullocks folle a
he held to have lostand disappcar
cow 2949
and arc not
the o w n e r m u s t
posscssion of thc found on scarch by thec
p l a c . 74 animals and no theft of them owner
can take
Tfa person takes a lorry on
greementahas rescrv
reServed the of scizing the busright
hirc-purchasc
systcm from a company
which undcr the
agrcen
agr

default is madc, then the

instalments, and defa
in thc cvcnt
of dcfault in
or by
company 1s not entitlcd to rctakc payment of
lorr by
force removing it from the hands of the possession of the
uthority, express implied, to give any consent. If the
or im servants, who hadpurchascr's
no
guilty of an offencc under this section. The
of an company or its agcnts do so
question whether the owncrship hador they are
to
scd the
to the is
is wholly immatcrial as sec. 378 deals with
purchaser
purchascr had not
The legal possession of the lorry was vested in the purchaser and the
« possession not ownership
and
ver Dossession of the lorry, even though default in company was not entitled
payment of any instalments had taken
vithout
pla
the consent of the purchaser. Possession
of the driver and the cleaner was the
nossession
ossession of
master 75
of thei
their master and they were not
competent to give consent on behalf of their
It cannot be said that a person in leav1ng the cycle
temporarily outside the market, with a
iew to come back and take it, either abandons or loses it. The
cycle is in his possession and
when he leaves it he does not intend to giIve up his possession or his dominion over it. Under the
circumstances the cycle cannot be said to have been out of his possession at any time, and
consequently dishonest removal of it with intention to take it out of his possession would amount
to the offence of theft and not to mere criminal misappropriation"6
Cattle turned out to graze in the pasture or jungle are still in the possession of the owner
unless the contrary is shown and the taking of such cattle is theft and not criminal misappropriation.
can be
Where the taker sells it subsequently his dishonest intention while taking away the cattle
inferred from the fact.77
lying for cight years (i.e. abandoned) is not
Removal of some bricks which had been left
necessarily an offence of theft.78
moveable property to destroy it, yet as long
as
lt may be the intention of the owner of a of the owner
and as long as it is still in the hand
the destruction or abandonment is not fulfilled,
the property is still the propety of the
tO counter-mand such destruction or abandonment, breach of trust.
his possession is theft, and improper use of it is
Owner and the taking it out of the
has no lien over it,
if he has not completed
to repair
A bailee entrusted with an article
a
essence of the
contract, within
of the
or when time is
not till
pairs wthin the stipulated time; amount of work,
after doing a certain
with it, the work
time; and he cannot refuse to part receive part payment for
dsonable absence of an agreement
to tor
such work, in the article without payment
or to recover his
owner is entitled, in
the circumstances,
dtne
the same 80
Ind Cas 332:10 Bur lul 401
Emperor 18 Cr. LJ 300: 38
Nga Shwe Zan v. 17 Luck
663.
75. H.J. Ransom v. Triloki Nath (1942) LJ D44:
Sau 33: 1954 Cr.
v. Parshottam Shamii AIR 1954 280. Cas 435.
ate
77. argir Chhotegir Gosai v. The State 1954
Cr. LJ
3 Bur LJ
197: 84 Ind.
Cr. LJ 291 893.
113: 26 8 3 Ind. Cas
v, Emperor AIR
1925 Rang
189: 17 Sind LR 260
79. M mi :26 Cr. LJ
1925 Sind 21
p e r o r AIR 174.
80
80. EFL ludah n c r o r
1925 ILR 53 Cal.
 by the latter for work alrcady done to it, it was hcld that the owner Uemandcd
was not
guilty of thcft, as hi
his
intention vas not to causc
wrongful loss to the repairer, or wrongful gain to himsclf, within sce
24 of the Penal Codc, but to remove his
propcrty after the lapsc of a reasonable time 31 SCC
Idol is movable property and can be thc
from the possession of subject-mattcr of theft. Thus removal of idol
to thcA 2
Pujaris maintaining the idols as agents of the Hindu Community
amounts
Deliver
of symbolical
possession is only effective against the judgement debtor. It is
on effect as against a third of
person and his possession is not disturbed or affected
delivery of such possession to a purchaser in the least by
at a Court sale.
possession he is not By the delivery of symbolical
dispossessed all.83
at
Where, therefore, the
crops, the fact that complainant is found to have been in possession and to
sale against a third symbolical possession has been delivered to a
have grown
the crops has been
party alleged to be the owner of the purchaser in an execution
land, is not
transferred to the
crops. A mere claim that the purchaser. It is no defence proof that the possession of
to charge of theft of
a
property had passed to him is
not the
A dead body is not a
person. Removing ornaments from
enough.54
property out of possession of a person and a dead body cannot be
section 85 as such would
not amount to an
taking
offence under this
Edible bird's nests arè not in
who collects them the possession of any body until they are
without alicence, therefore, does collected. A person
8. Under section not commit
theft.8
22 Movable
The term
property
Property
of the right to be conveys compound idea
a
exercised over it. It is composed of that which is its
exclusively to "that which is its everywhere used in this Code subject, and
is not
exhausive. Moreover, subject"5 This
it is clear that
section defines "movable so as to be
applicable
wider sense than the
expression "movable
the word
"property" is usedproperty" The definition
in the Code in a
The General Clauses property" 88 much
Act of 1897
every description, says that "movable
except "movable property"
property includes standing s The Indian property shall mean property of
property of every other timber, growing crops and grass, fruit Act says that
"movable Registration
Act (1 of
1956), s. description, except "immovable
82, provides that "the
upon and juice trees, and
in
shall be movable property, shares or other interest property'"s0 The Indian
transfèrable in of any member Companies
81. E.J. manner in a
82 Ahmed
Judah
Emperorv.
1925 ILR 53 Cal. 174.
-

provided by the articles of the company

83.
Banka
v. State AIR 1967
Raj. 190 1967 Raj LW 54. company."
Ibid Nath
v. Abdul
84 Kadir 37 Cr. LJ
85. 1098: 39 Cal WN 1306 165 Ind Cas
86. Muhammad v. State
1974 Cr. LJ 204 154.
87. Emperor v. AW Su 8 Cr. LJ 1973 Ker LJ 773.
88.
1st Rep.,
s 82. 473 : 4 LBR
Dalmia R K 275.
89. Act (1962) 1I Cr. LJ 805.
X
90. Act of 1897, s 3
XVI of (36).
1908, s 3.
 Sec 378to
380] OFFENCES AGAINST PROPERTY IN
COMMON LAw
It ssary that
not necessary that the
thing stolen 2951
It is.
isth regard to anything over whichmust have some appreciablc valuc. Theft
with rega
c

commitcshis
o m m i t t e d

an abuse of this scction guardcd against by 95,

is person can posscss the
section
right of
may be
a

an abuse
b e i n ga b u s e d for the purpose of punishing thoses. venialwhich "will prevent the law property But
heing sense of mankind readily violations of the right of of theft from
the
c o m m o n

v i g from a hedge, of a boy who takes stones distinguishes from

crimes, such the act of property hich as
who tear a traveller
who of who dips his pon in his from another
throw at
bird a servant
master's ink1
person's ground to
from the pocket of a person, it was held that he was
false rupec
Where the accused tonk a
had no value as a coin yet it had some value
the rupee hac guilty of theft becausc although
the
c o m
92 A
p o s e d . 2 ,
as a
piece of metal of which it was
currency note was cancelled by tearing off certain
ng it into pieces and then destroy1ng it by burning remained.parts, but the further
process
It was held that such a
hcancelled was not re nullius and could be the subject-matter of theft. There is note

tinction between intention to destroy or abandon and actual destruction or abandonmentclearof a

nerty.If
operty. If the owner of property intending to destroy or abandon property, hands it over to
the «
a
Ldnerson for the purpose of destruction he still retains his rights as the owner of the
and taking it out of his possession is theft and improper use of it is breach of trust3
property

9. Offences against property in common law

SECTION 1-HISTORICAL OUTLINE

Common Law Definition-The distinctive fecature of the crimes so far discussed has
rather than any economic advantage
been the physical or material harm they cause their victims,
to
we now pass to offences of dishonesty, in which the main
they bring to the offender. But
enrichment of the perpetrators without necessarily doing any physical
purpose is the unlawful common at
Of these the most ancient in English law and the most
hurt person
to or to property. theft for English law
larceny4 The first comphrensive definitions of
the present day theft,
is or
from Roman law) as
borrowed it, with some modification,
Bracton*5 (who
was given by invito illo domino cuius the intention
res illa fuerit
rei alienae fraudulenta, furandi, cum anomo
Contrectatio and with
of another man's thing, without his agreement,
(The fraudulent handling in Roman law and covered
word fraudulenta had a wide meaning
of stealing it'). The Latin the days when our
deceit and trickery, but in
aIshonest dealing of many
subtle kinds involving of men were simple
and the
economic relations
first defined the
than
force rather
COmmon law crimes were crimes of physical
was for legal
protection against viet anmis, and
the purpose
nain need of society trespass
or larceny, began as a unmistakable
torm

against deceit.8 The crime of theft, took 'the violent and

such dishonest
dealing as
wa more than to punish 99
of a
change of possession. JJ.
Batchelor
and Rao,
November 3, 1910 by
decided on
91. Note N p. 162.
342 of 1910,
Criminal Appeal No.
aKum
(Uno (Sind) 21.
(Unrep Bom). Cri. LJ 189:
(1925) AIR
17 SLR 260: 26
O
94.
ot (1923)
Latrocinium.
129, 150.
Crim. Law, 111, away", upon
Sce Stephen, Hist. the "taking
and carrying
96. Lib. 3, c. 32, fo 150b. doubt that
97 Just. Inst. IV, 1; Dig. XLVII, 2. 1.3. think, be
little idea of thef.
a T r
can,
we
an Gore of the English
 The actual LAWOF CRIMES &CRIMINOOGY
present day as an taking and
anything incorporcal cssential carrying
Narrow such
as a rcquircmcnt away
in thc
of the
crimc material objcct
subsequently Conception copyright, or debt, or thestcaling,
of Theft
a
of c

stcaling. itselfcdf ha
No one. has
decision. Somenarrowed
of
still further in Early valuc of one can commt
anything
remainet t
cCan

they had been these by various Law-The " larr

in later inspired limitations
by motives would subtletics ancicnt
conceptinn
times the of scem to us which were r6
trials for felony, desire of humanity. unaccountable, introdiced .

the restricting
medieval judges to accused person was the number The
of
desirc of
avoiding
if we
did not e
fall within invent denied offences in
which, capital punishme
the
definition ofingenious
larceny that it exacted larceny,
reasons for
the
support of counsel byandthe old precedi
exceed the value death as the
of all depriving many acts, that witnesset
larcenous
active forces. of twelve pence; seepenalty for stealing, character. For so severe seemed naturai
part of juries, One 296, except was the
was that
which post. This when the la
who Blackstone102 severity was ultimately thing stolen dicd
alue.103 The other repeatedly leniently terms 'a kind of tempered by w
force whichassessed the value of stolen
ngenious judicial similarly articles at much pious perjury' th on

i) SECTION interpretation which we have mentioned

opposed putting men to death below ther
for thetts was
The first
2-STATUTORY DEFINITION
above.104 that

statutory
definition of stealing (but not a
arceny Act, 1916,105 but this did not
ceny as it was then understood definition of larceny) was
purport
to be.105
to make
any change in the given in the
For the It runs as follows: common law or
purposes of this Act
(1) a
person steals who, without the
m of right made in consent of the owner,
good faith, takes and carries away fraudulently and without a
t, at the time of such taking, anything capable of being stolen with
permanently deprive the owner thereof
to
Provided that a person may be
has lawful possession therceof,
guilty stealing any such thing notwithstanding that he
of
if, being a bailee or part owner thereof, he fraudulenty
Converts the same to his own use or the use of any person other than the owner:

st, 259
te, 74.
1. Comm. 239. l 1,aea ta tha /aua of
 Sec. 378
to3801
SECTION2-STATUTORY DEFINITION
expression takes' includes 2953
(2)(i) the obtaining the posscssion
(a) by any trick;
(b) by intiidation:
(c) undcr a mistake on thc part of the
owncr with
taker that posscssion has been so obtained, knowlcdgc on the part of the
al by finding, where at the timc of
the finding the finder
can be discovered by taking rcasonable bclicves that the owncr
steps;
G the cxpression 'carried away includes
any removal of anything from the place
which it occupies, but in the case
of a
thing attached, only if it has been
detached, complctcly
Gu) the expression owner includes any part owner, or person
control of, or a special property in, anything capable of being having
stolen.
possession or

On this basis, a definition of the narrower crime of simple larceny is established in section
which107 declares that "steal1ng for which no special punishment is provided under this Act
or anv other Act for the time being in force shall be simple larceny and a felony punishable
with imprisonment for any tem not exceeding five years,110 The Act also recognizes a
variety of other forms of felonious stealing that the punishable with periods of long detection
varying up to imprisonment for life. Some of the graver of these had, before the Act, been
classed together as 'compound', or 'aggravated', or grand' larceny, but, none ofthese antitheses
to 'simple' appears in the Act. No definition of 'larceny', in the abstract, is given, probably it
must now be 'felonious stealing. The marginal notes of section 5, 11 and 16 (b) of the
Act
and moreover
apply the tem larceny' to species of stealing which do have "special punishments,
are less severely punishable than simple larceny; but the
modern view is that marginal notes are
not part of the statute.111
Under Dishonest Intention Actus Reus in Larceny-The actus reus in the early
it comprised only three facts and was
common law was simple. It is abundantly clear that
domino), (2) seized a thing
Constituted when a man (1) without the consent ofthe owner (invito
essentials still exist, as is to be
(asportavit).112 These
pand (3) carried (or drove) it away of 1916. It was essential at
common law to
n the definition given in section 1 of the Act
an indictmcnt quoa
as Coke said,"
and prove both the taking and the carrying away:
c
Onice abduxit equum is not good, because it wanteth cepit
Lat1n word
definition, of the
Bracton's adoption, in his at
e aking-Notwithstanding
such wrongful dcaing vn o
the English law oflarceny extended only to i.e. the plain
act or selzg
CLatio of control,
phvsical change
P y as consisted of an actual Ct.
ct. s. 37 (2).
punishment';
107. As modificd the Criminal Justice Act,
1948. constitute a 'special
by larceny'
108. Even the words 'to be
p upun
nished
in the as
casc of simple
8 C. and P. 7
3.
(102 Gooch (1838) 44,
*. R.
v. Bryant
a r (1837) 7 C. and P. 665: and the Naval Discipline Act, 1866, SS.larceny', see post, 297,
lar R. v., and
F 18 (4).
my Act, 1881, s. provision c r e a t e s a specific crime of 'simple
10. Ast O w h this
e t h e r

297); Russ.
1165.
F n g l a n d (1938),
XXXI, 464.
in (nost.
n
of siit indicated the
 thing and taking it away."3 The taking must be a scizing of the thing acquisitively. It is not
enough mcrely to touch the thing, or to move it, or cven to pick it up if thesc actions are no more
than inquisitive in order to ascertain what the thing is. What is nccded is a taking into possession
See post. 253, 358.
The Seizing, a Trespass-A strict distitietion was made betwecn the scizing of the
thing, which could be effected by laying hands upon it without moving it, and the carrying of it
away, for which it was ncccssary that the whole of the thing should be moved from its place. To
lay hands on a man's thing without his permission would be a trespass, therefore it was held
that there could be no larceny without
trespass: the converse, however, is not true, because for
larceny in addition to the trespass of seizing (cepit) there must always be the moving
the thing (asportavit)15 also. But the away of
taking and carrying away need not be by the hand of the
prisoner: it is enough if he procures some innocent person (or even an
take the thing for him.117 animal, such as a dog) to
The Asportation--The slightest
removal of the thing will suffice and the crime is
complete though
eventhe thief at once abandon the
then
and returm it. The test seems to be: thing,118 or subsequently
change his mind
Has every atom left the place in which that
was before? Thus there
may be a sufficient asportation even particular atom
occupies the place which some other part of it though part the thing still
of
from its scabbard, or previously did; e.g. by half-drawing a sword
pushing a bag partway out of the boot of a coach,113
book not quite out of a man's "20 But if the thing is attached either pulling pocket-
or a
pocket. to the land or to a
person it must be entirely detached therefrom
(see 278 post).
(ii) SECTION 3-POSSESSION IN COMMON LAW
To begin with, in the common law there
of the modern difficulties in
were none
precise meaning of the word fixing the
understood in everyday life; the'possession',21 which
word had no technical,
in those days denoted
actual control as
such a place and in such legal meaning. If a man had a
English owner usually kept it, thing
conditions as the ordinary in
controlled it sufficiently to make it a then he
Thus for the felony dishonestly to take it
away without his consent.
purposes of law of larceny a man
his house, all his domestic held
animals in his stables and
in his
possession ail his goods in all
hive, and so on. But strictly fields, fish in his fishpond, the bees
the parts of
things as another person, e.g.speaking
he did not, in his
in this simple conception,
his servant or his 'posses' such of his
at any
given moment, although (in the normal guest, might, while on his premises, be
case) they had taken up, or holding
115. Anon. (1584) Crompton 35a received, these things
law was favoured (T.A.C.) Stephen, Hist. Crim. Law,
because the only available II, 133,
life in trial by
combat, or (b) indictment in proceedings for the owner were
conjectured that this narrowness in
which would be which, although successful, he early
(a) appeal, in which he
and could be
forfeited to the Crown. But
by civil proceedings for would not be able to might lose his
awarded recover his
116.
Larceny Act, 1916, s. compensation.
1
trespass he would not have the property,
hazard of battle
117. E.g. getting an ostler at (2) i).
an inn to
(1826) 2C. and P. 423 saddle another
118. E.g. to
take (T.A.C.). person's horse by
pretending that it is
tothe front of a
plate out of a chest and lay it your own; R. v. Pitman
cart, R. on the
floor, R. v. Simson
end
only of a
v. Coslet (1782) 1 (1664) Kel. 31;
long Leach 236 (but not so to shift bale from
parcel of cloth, R. where the a
Woman'
119.R. s
Walsh
car,
v.
even
though it were then
v.
Cherry (1781) 1 Leach 236 prisoner had raised up and slit the back
120. R. v. (1824) 1 Moo. 14. caught by and remained in her (T.AC.)); also pulling an open one
121.WhichTaylor
Frla C(1911) 1 K.B, 674 hair, R. v. Lapier (1784) 1|
earring from a
 Scc. 378 to 380] SECTION 3-POSSESSIONIN COMMON ILAW 2955

into their hands witlh his From this it followed, in the most ancicnt pcriod of our law,
conscnt.
commit the fclony if they procceded dishonestly to make away with the
that they would not
to the scizing (ccpit) and
things, because the words imvito domino of the definition applicd both
to the carrying away (asportavit). .

desire of propcrty owners to enjoy the

Legal Possession-Quite carly, however, thc
criminal law of foclony could give them against the
protection which the ficrce sanctions of the
to create the artificial doctrinc of "lcgal"2
dishonesty of their servants or guests the judges control. Under this fiction the owner was
led

DOSsession as distinguished from actual physical actual physical control

treated as retaining "legal possession notwithstanding
that he allowedthe
of the thing to pass into the hands of
his servant or of his guest.123
Servants-At first the master onlyretained legal possession so long as the servant wass
whilst still on the master's premises or land. If the master
had
given the control of the thing it this
permitted the servant to take it away from his land he then dishonestly appropriated
was

no felony. There was also a doubt as to whether it would be felony if a servant purloined
124

which had been expressly committed

from the house itself property such as jewels in a casket
to his charge.12 But further extensions by interpretation
and by statute were made until it was
master's property as he
established that a servant never has legal possession of such of his
controls by virtue ofhis position as servant. And this rule is.confirmed in
the Larceny Act, 1916,
who is expressly mentioned
s. 17, which thus distinguishes the servant from the ordinary bailee
in sect. 1. Of course if the servant is at the time not acting
in that capacity (¢.g. if he is on
bailee of a thing entrusted to him by
holiday) then he could in certain circumstances become a comes into
his master. Where, however, a thing which is not already in the master's possession
it has never been
the hands of the servant for the master from some outside source, then
larceny ifthe servant, having thus acquired control of it, should proceed dishonestly appropriate
to
it before it reaches the legal possession of the master
of
Here again criminal policy eventually came to the aid of the owner and by a statute
1799126 the legislature clevated this situation into the list of feloneis, under the name of
embezzlement, 1' Now a days therefore the distinction may be briefly stated thus: the dishonest
servant commits larceny of the chattel which he takes out of his master's possession, but
embezzlement of the chattel which he interceps before it has reached his master's possession."
10. Cases
the land
(a) Earth and Stone.- Cart-loads of carth128 or stones,130 carried away from
an channel-
of another, are subjects of theft. But not clods of earth worth six pies taken from
bed belonging to Government.131 A house cannot be the subject of theft, but
there may be a
theft of its materials. 132
122. Or "constructive' it came to be called in modern times. Sce 290 post. Pasch. pl. 5.
and (1473) Y.B. 13 Edw. IV,
includes a customer at an inn: sce (1353) 27 Libr. Ass. 39 (T.A.C.)
uest servant to ride to the market,
and he tlees
24. (1506) Y.B. 21 Hen. VII,Hil. fo. 14, pl. 21, ifI deliver a horse to my
with i, it is not felony, for he comes legally by the horse through delivery'
125. Such doubts were removed by statute in 1529 (21 Hen. VIl, c. 7).
126. 39 Geo. II, c. 85. Before this statute it was not a crime at all.
127. Now contained in s. 17(1) (b) of the Larceny Act, 1916. Sec 318 post.
ordered.
128. Or such other destination as the master has expressly or implicdly
129. Shivram (1891) 15 Bom 792.
Madula Venkanna (1904) 27 Mad 531 (FB).
130. Suri Venkatappayya Sastri v.
 LAWOFCRIMES & (CRIMINOLOGY

m a casc
of anallegcd thei.of Sec. 11 to
he real test crops grown
had grown
the crops.
Wher thc complaina
Where is shown om land rsa
hrch ofthe partes
and reimovng
the s a n e would vould ha
be guilty to
133 ngro
accused cutting
the disputed land, hc is not iustic.Ctt,
takingMcrcly hecas
the
crops. to
lavng a claim
raised by the coimplainant on alanel on
away thc
theft of crops,which
to have been
whrch proved
is
of thoe
in the casc of he
Cr is

qucstion who gre h

provcd to
Generally spcaking,
""

n actual possession not the only thing in all.

the
to look to, but it is
thecrops is the first mattcr and so 1s the state of evidence The
Growing crops are not movable property. A person who removesregards
though secondary is relcvant qucstion
L uch past posscssi of ttle
as

village Court, which has only power

to attach movablos, is not attachcedSIOnby a
guilty ofth crops atta
growing crops were attached in execution of a decree by beat of drum with 139 1Where co
Where cn
of the warrant of attachment on the land and another copy on the outer dooratixing a. without affixing a
Judgement-debtor. as provided by 0.XXI, r. 44, Civil Procedure Code and door of the
the accusedhouseremoved
of ththe
the crops with the consent
of the judgement-debtor, it was held that the
oftheft as the attachment was irregular and the crops had not
passed
sed were not
the judgement-debtor."3 Where the out of the. guiltofy
auction-purchaser at a rent
execution sale Ssession
took delivery of
possession and subsequently the persons sale oon
of a of
removed certain bamboo clumps who were in
stand1ng on the land, it was held that when possession cut holOlding
ding
acquired land he acquired the bamboos too and the
the the auction. and
If a person
accused were guilty of thet 138
trespasses on land in the
property in the paddy that possession of another and sows
not entitle him to
reaps and removes such results from the sowing and if thepaddy on it that doe does
was raised paddy he does not thereby commit person in possession
by the lessee of the accused after theft.* Where a S1on
ordered by the the crop
of the
Court, the removal of
the crop could court-sale, and on a land
delivery of the crop was not
accused for theft was not be said to be
Where the accused unsustainable.140 dishonest and a conviction
land with the removed the paddy in
of by the
crop on it, the
Court was held toremoval of the paddy
violation of the order of a Court
standing on land attaching the
144, Code of constitute
Criminal Procedure, theft.141 Where prohibitory attached and taken possession
partics from going orders
upon it and one 1898, respect of a land in
in were 1Ssued
the crops and
dispute restraining unaes
the other
not maintainable 142 party filed a
party against the order restraining
entered upon the land Dou the
both
complaint of theft, it was
s held that the
that
land and harveste
anuof
Three the charge
chargc theft was
persons were o
was in
appointed custodians of
custody of the custodians
133.Kailash Singh three accused cut the attached
attached property. While the property
LJ 1039:
134.Uma
(1941) PWN
(1966) AIR away
601:(1941) away the crop. Itproperty.
22 PLT
was held that the custodians
crop. It was
135. Charan v. Charan
Harihar Narain (Orissa)
Das
186; Kalandi 765: 43 Cri.
LJ
SLR 9. Singh v. (1969) Cri. LJ Behera (1965) 2 Cri.294:( 613; Karamsani (1966) Cri.
136. Nal Bankey Singh 1086. LJ 3:
(1965) AIR (Orissa) 166.
137.
138.
al
Ram lamadan Chetiar
Sakal Singh (1929) 31 LW
(1944) 46 Cri. LJ 83
39.NgaJagmohan Singh (1930) 32 Cri. LJ 719: 58 MLJ Jaswantsinhji Bapubha (1952) 5
Hmyin (1906)3
L40. Venlkatasubbarar (1932) 13 PLT 437.
519:
509: (193
(1930) AIR (M) 509
\442.1.LDeoamborKuerdar v.rayadu
Priyana (1940)
LBR 199:
4
MWN
24 Cri.
Cri. LJ4Ci. LJ 355:
LJ
465. (1932) AIR (P) 344.
Sheo yanath
Dalganianv.Koeri Prasad (1952)
869:
Cri. LI (1939)52
52 LW 346.
(1956) Singhn
AIR 1966
ALI 601.
994,
Bhagis
SC 359 and Srichandan v.
distint odar 1987 Cri. LJ 631 (Ori) following
 S80|
378 tO
Sec.
to rcap the crop
vhen it was ready and thercforc the cutting
hority of the cropby the
had
he
dishonest and they
werc guilty of theft 143

aed was
Standing teak trecs are immovable propcrty. "" But as soon as the trecs arc
acc - Stan
Trees.
(c) intcntion of removing them dishoncstly, thcft is committed
c u twith
amortgagee, who is in possession of trecs undcr the terms of a mortgage deed
Whe
riglht to cut and appropriate them,
cuts and appropriates the trces, he does not
having a right
having the owner of his loss, under s. 76 of the Transfer of
withoug
vithoug
c o m m
because he has to recoup
i t
thett,
P r o p e r t y A c t , 145

Salt Salt spontancously formed on the surtacc of a swamp appropriatedby

d) Salt
in a creck under the supervision of Government,147 subject
146 is of theft but not
ent 14
Government, or
Government.14
on a swamp not guarded by
which is forn
formed
which is
that
subject of theft.149
that
Boat.- A
boat may be the
e)
in letter, goods:
Vauable security.- of currency banknotes, sent
The halves a are

indictable for larceny.0 Similarly, any valuable security may

nerson who steals thenm is
forms; they are subject to strict
h i e c t of theft.131 Bank draft forms are not just ordinary
as custody accountability, etc.
This being a valuable document it is a
measures such
cecurity of the authorised
legal custody without the
consent
and remove of it from proper and
nroperty 152
to commission of theft,
amounts
person
is not movabie property and
(g) Human body
--A human body, whether living or dead, would
But a different principle apply in the case of
is not theft.
therefore stealing a corpse in m u s e u m s or scientific
institutions
or mummies, preserved
human bodies, or portions of such, Its being a
be the subject-matter of theft.
Idol is movable property and
can
(n) Idol. a movable property.5
-

is no bar to its also being

certain purposes
juridical person for Court has held that electricity
case the Supreme
Avtar Singh's1 include a theft
(i) Electricity- In that 378 by itself would not
movable property and s.
Act to be deemed
not considered to be the Electricity
electricity is by virtue
of s. 39 of
electricity. Abstraction of so created
would entail the punishmer
the offence
Penal Code and not under
be an offence under the Indian the punishment iIs
offence even though
Indian Penal Code for that
under the theft within the meaning
1S not
theft of electricity is not
Penal Code itself, Therefore, though AlR 1949 Cal
63
ndian Osman Mistry v. Atul Krishna
Ghosh
decided in
hne witht
following have been
LJ 484 (Pat) 3>
Prasad Singh 1970 Cri. and should
of law Singh AIR 1966 SC
nendra down a sound
proposition Sheo Prasad to na.
not appear to lay Deo Kuer v. not appear
following
d does Srichandan 1987 Cri.
LJ 631 (Ori) w a s taken but it does
LJ 484 (Pat)
Bhagirathi view to 1970 Cri.
Se BLJR 211 where a
contrary
763
been cited at the bar.
701.
144. Ka Doe U (1929) 8 Ran 13. (1940) AIR (P)
Cri. LJ 795:
145. Sah (1940) PWN 778: (1940) 41 Cr. C. oo.

T and Mad 228; Fakira

(1872) Unrep
amma Ghantaya (1881) 4
147. Mansang Havsant (1873) 10 BHC 74.
148. Government Pleader (1882) 1 Weir 412.
149. Mehar Dowalia (1871) 16 WR (Cr) 53, 63.

150.Mead (1831) 4 C &P 535.

Martand (1870) Cr. R of 1870 Unrep
Cr. C.
443.
1S shirajDatta
. Ashok Naik 1979 Cri. LJ (NOC) 95 (Goa)
153. Ramadhin
(1902) 25 All 129 Cri. LJ 537: (1968)
AIR(Pa
190. Shankar Sinha
(1968)
4. Ahmed (1967) Cr. LL 1053: (1967) AIR (Raj) R a m a

II11h1 SAll).
 2958
LAWOFCRIMES&CRIMINOLOGY (Sec. 378 to 380
s.378 itsclf, neverthcless a theft by virtuc of fiction created
by s. 39, Electricity Act is liable to
be punished in the like manner as a theft undcr s. 379. Where the
connected VIR wire with the mains of the
respondent had unauthorisedly
clectricity
board and thus consumed clectricity
without obtaining a proper mcter, the accused was held
rcad with s. 379
guilty under s. 39 of the Electricity Act
of the Penal Code."s Similarly, wherc the consumer had wilfully or fraudulently
altered the index of
the encrgy
the meter and tampered with the wiring for preventing it from duly registering
well thereby
consumed'5 or where he had introduced a piece of wood in the meter of the tube
impeding free movement of the meter resulting in dishonest abstraction of electrical
energy he must be held to have
committed the offence of theft of energy.
Gas.- English cases. -

A having contracted with a gas company to

and pay consume gas
according to meter, in order to avoid
paying for the full quantity of gas consumed,
introduced into the entrance
pipe another pipe for the purpose of conveying the gas to the exit
pipe of the meter, and to the
The entrance pipe was the burners, for consumption without passing
until it passed property of A, but he had not by his contractthrough the meter tself,
through the meter. It was held that he was any interest in the gas
use of a
manufactory by means of pipe which drew off theguilty larceny. A stole gas for t
of
to pass
thrOugh the meter. The gas from this gas from the main without
The pipe was never closed
as its
pipe burnt every day, and tumed offallowing
was
at night.
of gas. It was held that as the
junction with the main, and
consequently always remained full
of the gas, and not a pipe always remained full, there
series of separate taking, but that was, in fact a continuous
taking
have been continuous, as it was even the pipe had not been thus kept
full the taking would if

(k) Water- Water substantially all one transaction.150

pipes, may be the subject ofsupplied by aThe
water company to a consumer, and
freely from a river through alarceny,161 Calcutta High Court has held standing in his
channel made and maintained a that water running
theft.2 The Madras by person is not a subject of
High Court"s has ruled that
subject of theft. It has running water in
irrigation channels is a
reduced into distinguished
the Calcutta case on the
ground that there water was not
possession.
in pipes and so Similarly, the Allahabad High Court has held
reduced into
possession can be the subject of theft 164that water when conveyed
) Animals. In order to
-

there must be a render an animal

completc capture, the result of which ferae naturae the property of
possession. Mere pursuit short of is to reduce the any person
capture will not do, and so long as it is animal completely into
to escape it
cannot be said that there possible for the animal
is such a reduction
property of the pursuer.165 into possession as
makes the animal
The accused was
that animals found in involved in the shooting of a deer inside the
for until reserve forests could
not be said to be in reserved forest. It was held
they were tamed and the
possession of the Government,
156. State v. domesticated they could not be said to be
Dharam Pal 1980 Cri.
157.
Tamilnadu LJ 1394
Electricity Board v. Kanniappa(Del).
brought into the
158. Jhalkan
159. White Singh 1981 Cri. LJ 1230 Mudaliar 1985 Cri. LJ 561
160. (1853) 6
213.Cox (MP) (Mad).
Fith.(1869)
161. LR 1 CCR
162. Fercns
v. 172.
Sheikh ArifO'Brien (1883)
(19O8) 35
11
QBD 21.
55.164.
Chockalingam Pillai
165.Mahadeo Prasad (1912) MWN
Cal. 437.
(1923) 45 All 680.119: 13 Cri. LJ 131.
Raghunandan (1912) 15 OC
1831