CHAPTER XVI

OF OFFENCES AGAINST PROPEKTY

OF THEFT
378 Thef.-Whoever, intending to take dishonestly any nM)vaty
property out of the possession of any person without that person's Conw:r,
Such taking, is said to commit thef.
property in order to
movesExplanation
hat l.--A thing so long as it is attached to the earth, not teing
DOvabie pruperty, is not the subject of thcft : but it becomes capable of teig
the varth
of theft as s0on as it is severed from
the vubject
Explanation 2.-A moving effected by the same act whích effects the
severance a theft.
may be 3.-A
Explanation person is said lo cause a thing to move by remving
an obstacie which prevented it from moving or by separating it Irom aty
by actually moving it.
other thing, as well as person, animal t
Explanation 4.-A who by any means causes any
and to move everything which, in
consequen
is said to move that animal,moved by that animal.
is
of the motion so causcd, consent mentioned in the definition may be e
Explanation 5.-Tbe person in possession, or by any
or implicd, and may be given either by the either express or implied.
baving for that purpose authority
person Illustrations
with the intention of dishoncstl
(a) A cuts down a tree on Zs ground,
without Z's consent. IIere, as sOon as A
taking the trce out of Zs possessionsuch taking, he has committed
theft.
scvered the trec in order to
has pocket, and thus induces I's dog to
(b) A puts a bait for dogs in hisdishonestly to take the dog out of Zs
follow it. Ilere, if A's intention be committed theft as soon as Z's dog has
possession without Z's consent, A has
begun to follow A. bullock
box of trcasurc. Ile drives the
(c) A mccts a bullock carrying a may dishonestly take the treasure. As
that hc
in a certain dircction, in ordermove, A has committed theft of the treasure.
so0n as the bullock begins to
entrusted by Z with the care of Z's plate,
(d) A, being Zs servant, andplate, without Zs consent, A has committcd
dishonestly runs away with the
theft.
the keeper of the
journcy, entrusts his plate to aA,gold
(e) , going on a return. A carrics the plate to smith and sells
warehousc, till Z shall therefore, be takeu
possession. It could not,
it. lere the plate was not in 's committcd theft, though, he may nat
out of Zs possession, and A has not
committed criminal brcach of trust.
to Z on a table in the house which.
() A fnds a ring belongingpossession.
0Ccupies. Ilere the ring is in Zs and if Adishoncstly removes
A commits theft.
() A nnds a ring lying on the high road, not in the possessioneriminal
0
commit
person. A, by taking it, commits no theft, though he may
nisappropriation of property. Not
's house. and
(h) A sees a ring belonging to Z lying on a tablo in
for fear of search
venturing o misappropriate the ring immediatcly
detection, A hides the improbable thal i!
will ever be found by Z, ring
withinthea intention
place where it is highly
of taking the ring from the hicdiny
first
place and selling it when the loss is forgotten. Ilere A, at the time of
(804 )
 OF OFFENCES AGAINST PROPERTY
805

commits theft.
moving the ring,
() A delivers his watch to Z, a jcweller, lo bo rerulated. Z carrics it to
hisshop. A not owing to the jeweller any debt for which the jeweller might
detain the watch as a security, enters thc
watch by force out of Zs hand, and carries it away. shop
lawfully Ilerc openly, takes
A, though his
he may
have committed criminal trespass and assault, has not committed theft,
inasmuch as what he did was not donc dishonestly.
() If A owes money to Z for repairing the watch, and if Z rotains the
wateh lavwfully as a sccurity for the debt, and Atakes the watch out of Z's
possession, with the intention of depriving Z of the property as a sccurity for
his debt, he commits theft, inasmuch as he takes it dishoncstly.
Again, if A, having pawned his watch to Z, takces it out of Z's
possession without Z's consent, not having paid what hc borrowed on the
watch, he commits theft, though the watch is his own property inasmuch as
dishonestly.
he takes it
A takes an article bclonging to Z out of Zs possession, without W's
consent, with the inntention of keeping it until he obtains money from Z as a
reward for its restoration. IHere A takes dishonestly ; A has therefore
committed theft.
(m) A, bcing on friendly terms with Z, goes into Z's ibrary in Zs
, o n and takes away a book without Zs express conscnt for the purpose
mercly of rcading it, and with the intcntion of returning it. Hcre, it is
probable that A may have conccivcd that he had Zs implicd consent to use
Ps book. If this was A's impression, A has not committcd theft.
(n) A asks charity from Zs wife. She gives A moncy, food and clothcs,
which Á knows to bclong to Z, her husband. IIere it is probable that A may
conceive that Z's wife is authorised to give away alms. If this was A's
impression. A has not committecd theft.
(o) A is the paramour of 's wife. She gives a valuable properiy, which
Aknows to belong to her husband Z, and to be such property as she has no
authority from Z to give. If A takes the property dishonestly, ho commits
theft.
(p) A, in good faith, believing property belonging to Z to be A's own
property, takes that property out of B's possession. Horc, as A does not take
dishonestly, he does not commit theft.
COMMENT
Ingredients. -The following are the essential requirements of theft :
(1) dishonest intention to take property;
(2) the property must be movable;
(3) the property should be taken out of the possession of another
person;
(4) the property should be taken without the consent of that person;
and

(5) there must be some moving of the property in order to

accomplish the taking of it.
(1) Intending to take dishonestly.-Intention is the essence of the
nence of theft. Intention must be dishonest and it must so exist at the time
Ing of the property. Since some moving of the property is essential in
Oratr to accomplish the iaking of it, therefore, the intention to take dishonestly
must exist at the time of moving of the property.
Such an intention exists when the taker of the properly intends to cause
Wrongful gain to one person or wrongful loss to anolher person. It is not
necessarv that the taking must cause wrongful gain to the taker, it would be
I Sce
illustration (h).
806 INDIAN PENAL CODE
|S. 378
sufficient if it causes wrongful loss to the owner of the property.! It would
be no defence to plead that the accused did not intend to procure
benefits. For example, where the accused look complainant's threepersonal
cow
against her will and distributed them among her creditors, he was guily t
theft.?
In Ram Egbal Rai v. Jaldhari Pande,' the accused scized certain cattle t
the complainant as they had trespassed into his land and damaged his cron
therefore, he was taking those cattle to the cattle pound. "The complainan's
plea was that the accused had no legal right on the said land or crop and
hence, his action amounted to theft. The Court held the accused not l
of theft. However, he mistakenly believed that he had his right over the land
or crop because he had not acted dishonestly, which is an essential ingredient
of the offence of theft.
'A'in good faith believing property of "B to be his own property takes
that property out of B's possession. In this case A does not take dishonestly
therefore Awill not be liable for theft. A is entitled to claim benefit of mistake
of fact under section 79 of the Indian Penal Code. A in good faith believed
property of B to be his own property. He has not taken that property with
dishonest intention but under a mistaken belief thinking it to be his own
property.
Taking need not be permanent.-Taking need not be permanent or with
an intention to appropriate the thing taken. Theft may be committed without
an intention to deprive the owner of his property permanently. Where A
snatched away some books from a boy B. as he came out of school and told
him that they would be returned when he came to his house, A was held
guilty of theft.5 If a person takes away any movable property out of the
possession of another person even though temporarily and with an intention
to return it later on, it would amount to theft.
In Pyarelal,° the accused, working in a Government office removed a file
to his house, made it available to an outsider and then returned it to the
office after two days. He was held guilty of theft. A misplaced a watch in
his house which was found by B. Instead of restoring it forthwith to A, B
took the watch to his place and retained it until he could obtain money trom
A as a reward for restoration. B would be liable for theft.
Taking in assertion of a bona fide disputc,-If some property s
removed in the assertion of a contested clainm of right, however, ill-founded
that claim may be, the removal of the property does not amount to steal1ng
The dispute as to ownership must be bona fide. This defence will not be
available in cases of mere colourable pretence to obtain or keep possessioh
of property.
Mistake,- Where a person takes another's property believing under d
istake of fact and in ignorance of law that he has a right to take it, he IS
1 Mudra, A1R 1946 Nag. 326.
2. Maduree Clhowkeedar, (1865) 3 WR (Cr) 2.
3 AIR 1972 SC 949
4 See illustration ().
5. Nuushe Ali Khan, (1911) 34 Al 89
AlR 1963 5C 1094
7 Alagriswan1 Tevun, 1901) 28 Mad. 304.
b Arfan Ali, (1916) 44 Cal 66.
S 378 1 OF OFFENCES AGAINST PROPERTY 807

not guilty of theft because there is no dishonest

may cause wrongful loss.! intention even though he
Stealing one's own property.-llustrations (i) and (k) of this section
demonstrate that a person can be convicted of stealing his own property 1t
he takes it dishonestly from another. Where a person removes
his cattle after
attachment from the person to whom they have been entrusted without
rccourse to the court under whose order the attachment has been made, he
will be guilty of theft.
A gives a piece of cloth to B. a tailor for making a suit for him. On
demand B refuses to handover the stitched suit unless A paid the stitching
charges. A looks for the opportunity and takes away his suit without the
knowledge of B. Here A will be guilty of theft because he takes his own suit
without paying the stitching charges.
Ahung his umbrella at club counter at 5 p.m. on 29.7.1987 but it was
not there when he wanted to be back home at 9 p.m. He was upset by this
loss and decided that he would take away the umbrella of some one else
next day. When he was leaving the club next night, he saw an umbrella on
the hanger and took it away. In fact, the man at the counter had kept A's
umbrella on the counter on 29.7.1987 while leaving for home, considering that
some member had forgotten to collect back and he had put it upon the hanger
next evening. In this case A is neither liable for theft nor for attempting to
commit theft.
In execution proccedings on a money decree against X, Court ordered
attachment of movable property of X. X and A were living in one house. One
buffalo ofA was standing in common compound of the house. Bailiff under
a mistaken belief attached this buffalo. While Superdar was taking the buffalo
away, A struck the animal with a stick and drove the same away to his fields.
In this case A will be liable for theft because although buffalo belonged to
him but at the relevant point of time it was in lawful possession of Superdar,
of order of
to whom the possession was delivered by the bailiff in execution
the Court. Bailiff will not be liable for wrongfully attaching A's property
because he acted in good faith bclieving himself to be justified by law in
compound of the
doing the act as the buffalo was standing in the common
house.
coins from the pocket
A, acollector of coins dishonestly took a fistful of
them he found that they
of a fellow coin-collector but when he examinedIn this case A is liable for
him.
were his own coins previously stolen from
committing theft because he has taken those coins from the pocket of another
were actually his own which
with dishoncst intention. The fact that coins knowledge
the of A when he took
were stolen some times back was not in the time when coins were taken by
a fist of coins from another's pocket. At were taken without his consent.
and
A they were in anothers possession
Cases.-A creditor who takes movable properly out of his debtor's
intention of coercing him to pay his
possession, without his consent with the electric kettle was given to a
debt, would be guilty of theft. In a case ancomplete the work within the
repairer for repairs, the repairer did not
AIR 1965 SC 926.
I. Ram Ratan v. State.
2. Rama, AIR 1956 Rang. 190.
3 Keseri Chand, AIR 1959 Raj. 497.
808 INDIAN PENAL CODE
IS 378
stipulatcd time or even within a reasonable time hercafter and he
forcibly removed the kettle from the repairers shop wilhout payment
sum demanded by the latter for work alrcady done to it. Here the ov.
of tho owner,
Iwas not held guilty of theft, as his inlention was nol lo cause wrongful Ie
to the repairer or wrongful gain to himsclf within the meaning of scctio
of the Code, but to recover his properly afler lapse of a reasonable time !
In Hands, an 'aulomatic box' was fixed against the wall of a pukl.
passage and anybody who dropped a penny picce coin into the slit anl
pushed in the knob could get acigarette out of it. The accused dropped into
the slit in the box a brass disc aboul lhe size and shape ol a penny and thus
obtained a cigarette, which he took to the other accuscd. It was held thai
both the accuscd were guilty of larceny.
A intending to cause a theft to be committed instigates B to lake
property belonging to J out of J's possession. Ainduces B to bclieve that tbe
property belongs to A. B takes the property, out of J's possession in good
faith believing it to be A's property, B will not be guilty because he lacks
dishonest intention to take another's property but A is liable for abetting theft.
(2) Movable Property. - Anything which is permanently attached with
the carth or is permanently fastened with anything which is permanently
attached with the earth is known as immovable property. Therefore, a thing
other than the above is a movable property. Explanations 1 and 2 make it
clear that things attached to the land may become movable property by
severance from the earth and that the act of severance may of itself be theft?
Thus, a thief who severes and carries away is treated like a person who
carries away thing which had previously been severed.
A cuts down a tree on B's ground with the intention of dishonestly
taking the tree out of B's possession without B's consent. In this case A is
liable for theft under section 379, Indian Penal Code as the trees become
movable property the moment they are cut down. Taking dishoncstly movable
property from another's possesion without his consent conslitutes theft.
Therefore A is liable for commiting theft.
Value of property.-It is not necessary that the thing stolen must have
some appreciable value.
Electricity.Electricity running in clectric wire is not movable property
and, thereforc, dishonest abstraction of electricity does not amount to an
offence of stealing under the Code, but a charge under section 39 of the
Indian Electricity Act, 1910 for theft shall be maintainable.
Cases,-Cooking gas passing through the pipeline has been held to be
movable property. Thereforc, where the accused consumed gas by introducing
another pipe into the entrance pipe so as, to pass the gas to the burners
without passing through the meter and thus avoiding payment to the
company, he was held guilty of larceny.
(3) Taking oul of the possession of another person.-The property
must be in the possession of the prosecutor, whether he is the owner ot
or is in possession of it in some other manner. Thus, there can be no thet

1. Judah, (1925) 53 Cal. 174.

(1887) 16 Cox. l88.
3 Sce lusttation (a).
1. Atar Suzyh, AIR 1905 SC 666
 OF OFFENCES AGAINST PROPERTY 809

theft is possible of tamed animals, birds or fishes etc.

animals but
(g)
demonstrates that where properly dishoncstly taken belonged
liustration who was dead, and therefore, in nobody's possession, or where
theft
property without any apparent possessor, not thc offence of
is lost
criminal misappropriation is constituled.
tut of movable property is said to be in the possession of a person whern
A situated with respect to it that he has the power to dcal with it as
leis so the exclusion of all other persons, and when the circumstances
are
OWner to to do so in casc of nced. It would
may be presumed to intend
such that he
the property is taken against his wishes from the custody of
be sufficient if apparent title, or even colour of right
lo such property.
who has an
a person
and (k) fully demonstrale that mere physical control of the
Hustrations ) is quite sufficient i.e., the person from whose
prosecutor over the thing taken have his
property is takern may not be the owner and may
possession the wrongful.
possession either rightful or may be guilty of his
of commiting theftattached
Even owner of the property standing on land
property. For example the removal of crops
section 145 of the Cr. PC.
own of by the court under
and taken possession
amounts to theft. bus on hire,
Ransom v. Triloki Nath,' B had taken a
Cases. -In HJ.
company which had reserved the right of seizing the
purchase system from a payment of instalments. The company took
in servant.
bus in case of defaultforce from the driver of the bus who was B's master
possession of the bus by possession of the
held that the possession of the driver was possession of the bus even
It was entitled to recover
and the company was
not question
instalment had taken place. The
though default in payment of had not passed to the purchaser is
wholly
or
whether ownership had deals with possession and not ownership. Therefore,
immaterial as this section taken possession of the bus forcibly were
company who had certain
the agents of the section. So also, where a washerman had hung up accused
liable under this the
after washing them at the village lank andsection beause
clothes to dry under this
away, he was held guilty were still in possession
dishonestly took the samewashed and hung up to dry
the clothes which were B
of the washerman. hire-purchase from a bicycle dealer named
bicycle on
"A had taken a instalments are not paid regularly B. willinstalments. be entitled
the
on condition that ifbicycle. payment of the
There was default in forcably
to take back the
of 'A', was going on the same bicycle, B'
servant
One day as 'C' the it. B will be liable for theft in this case.
took possession of to constitute thett the property
consent.-ln order possession of it.
(4) Taking without without the consent of the person in the consent
must have been taken clear that
illustrations (m) and (n) makes it in
Explanation 5 and
may be given either by the person express
implied, and either
may be express or person having for that purpose authority which leads toa
POssession, or by any obtained by false representation
or implied. Consent be a valid consent.
at ight an.i
IMisconception of facts will not theft enters the house of B
commit
'A' intending to
1, (1942) 17 Luck 663.
64 Bom. LR 788.
2. Parshottam, (1962)
 INDIAN PINAL CODE
|S 378
removes from one of the rooms a heavy box to the courlyard
it. Ie does not find in the box anything worth taking and where he opens
goes away. In this case A will be liable for attempling theft and it there leaving
house respass under section 442, I.P.C. also for
(5)) Property must be removed.-Ihe offence of theft is
there is dishonest moving of the property. The least removal of the when
hi complete
taken from the place where it was before amounts to
not be carried off. I is not necessary that the propertytaking though it may
should be rermovod
out of its owner's reach or carried away from the place in which it was found
Explanations 3 and 4 show how 'moving' could be effected in certain
Illustrations (b) and (c) elucidate the neaning of explanation 4. Thus, wher
a guest took bed-sheets from the room with an intention lo steal them and
carried them to the hall but was apprehended before he could get out of the
house, he was guilty of theft.
Cases,-In Venkatasami,' the accused an employee of the postal
department while assisting in the sorting of letters, secrcted two letters with
the ntention of handing them to delivery peon and sharing with him the
money payable upon them. He was guilly of heft as well as of attempt to
commit dishonesl misappropriation of property.
In Bisaklhi,' the accused cut the string which fastened a neck ornament
to the complainant's neck and forced the ends of the ornament slightly apart
in order to remove the same from her neck with the result that in ensuing
struggle between the accused and the complainant the ornament fell from her
neck and was found on the bed later on. The accused was held guilty of
theft as there has been in the eyes of law sufficient moving of the ornament
to constitute theft.
A, at a railway station inserts counterfeit coins into an automatic
machine and causes it to eject railway tickets which A and his friends B. C,
and D make use of. Here A would be guilty of theft because he has
dishonestly extracted tickets worth money value from a machine which was
in the possession of Railway and B. C, and D would be liable under section
411 P.C. for receiving stolen property as they had used the tickets.
Explanations 1 and 2.Explanation No. 1 says that a thing so long as
it is attached to the carth, it is not the subjcct of theft, but as soon as it 1S
severed from the carth it becomes movable property and thus a subject-matter
of theft. Explanation No. 2 says that the moving by the same act which effects
the severance may constitute theft. Thus mere sale of standing trees is not
theft, but carrying away of them after falling them down is theft. Similarly,
Cutting of green grass amounts to theft and moving by the same act which
efets severance of it from the carth amounts to taking if it is with dishones
iMenton.' Where cut paddy belonging to B but did not remove it thoug"
the padldy was ripe for cutting. A would still, be liable for theft if cutting o
paddy was with dishonest intentionmaybecause
COSitutes its moving as well. This
severance of paddy rop
constitute the offence of mischiet
well

i ) 14 Mad. 229
2 (1917) PR No 29 of 1917
3 Bhugu Vshnu, (1897) Unrwp 928.
'msudain, (1900) 2 Bom. RZ52
S. 379J OF OFFENCES AGAINST PROPERTY 811

In Durga Tewari,' the accused was entrusted to take carc and watch
paddy crop till it was ripe when the owners were to give notice to the factory
who would reap it. The accused cut the crop and disposed it off. He was
held guilty of theft.
Explanation 3,-Explanations number 3 and 4 deal with the various
modes of moving of property. The three modes according to cxplanation No.
3are : () by actual moving, (i) by separating it from any other thing and
(iii) by removing an obstacle which prevented it from moving.
Explanation 4.- According to Explanation No. 4 a person is said to move
everything which is moved in consequence of the motion of animal caused
by that person.
Explanation 5,-According to this Explanation consent may be express
or implied and it may be given either by the person in possession or by anj'
person having authority express or implied to give consent.
Necessitas inducit privilegium quod jura privata. ("nccessity inducesaai
privilege because of a private right")No amount of necessity can justify
act of stealing. Kala was
Cases. -In Vinod Samuel v. Delhi Administration,' one Chandra
travelling in a bus with her husband Trilokchand. When the bus stopped at
direction, snatched the
Patel Nagar bus stand, one person came from opposite the window and
chain of Smt. Chandrakala who was sitting by the side of culprit. With th:
chased the
ran away. She raised an alarm and her husband he was overtaken
help of two others, Guru Dharshan Singh and Harjit Singh, had seen the person
and caught. The gold chain was not recovered. Nobody
who snatched the chain. The only reason why the appellant was apprehendei
stopped at the bus stand. Nobody
was that he was seen running after the bus
being chased.
saw the appellant dropping the chain while he was guilty of theft. Merelv
It was held that the appellant cannot be heldwalking briskly after the
because for some reason he was seen running or suspicion
incident it does not follow that he was the culprit although a strong
may arise against him.
theft shall be punishcd
379. Punishment for theft.-Whoever commits
torm which may extend to thrce
with imprisonment of either description for a
both.
years, or with fine, or with
COMMENT

This section provides punishment for the offence of theft. However, a

on the basis of his age
lesser punishment may be awarded to the accused good
and good character and he may be evenAct, released on probation of
Offenders 1958.
conduct under the Probation of
theft of a bicvel
In Munna v. State of Orissa,' the accused committed IPC, The Court
Section 380,
and some clothes and was prosecuted under Probation of Offenders
ordered his release on probation under Section of the
3
committed theft in
Act, 1958 as he had no previous criminal record and had
a momentary temptation.
nearv
In Gulzar v. State of M.P., the accused stole an attache containing
1. (1909) 36 Cal. 758.
2. 1991 Cr LJ 3359 (SC). 1987 Cr LJ 1378 C,
3. AIR 1967 Ori. 56. See also Sanchu Roy v. State,
4. AIR 2008 SC 383.