by Siddharth Dey

The offence of Theft happens to have a slightly technical edge to it. Fret not though, since it’s not at all difficult to understand. In this post, I’ll cover the definition and meaning of theft, and explore the key facts which you need to zero in on, in varying fact situations, to unravel the mystery – is it theft, or is it not?

The substance of criminal offences in India is covered largely in the Indian Penal Code of 1860. This Act has 511 Sections spread across 23 Chapters. What’s encouraging though is, only a few of them will be relevant for CLAT. Reading all those Sections and the related offences would have been quite cumbersome otherwise!

For most of the definitions of criminal offences, the CLAT paper usually picks it up verbatim from the IPC.

Be warned though: the strict rule of “no outside knowledge” still applies. You must always apply the principle given in the question paper.

Definition of Theft

The definition of Theft that you need to follow for CLAT is clearly defined in Section 378 of the Indian Penal Code, 1860:

“Whoever, intending to take dishonestly any moveable property out of the possession of any person without that per­son’s consent, moves that property in order to such taking, is said to commit theft.”

This definition comes with 5 Explanations and 16 Illustrations (or hypothetical examples).

Instead of copying all of it here, I will instead explain the key parts of what you need to know – so that you are able to determine whether an act constitutes as theft or not. If you want to read them as it is, then you can read it directly from the source above.

What constitutes Theft?

The first thing that we need to do is break up the definition into parts:

“(1)Whoever, intending to take dishonestly (2) any moveable property (3) out of the possession of any person (4) without that per­son’s consent, (5) moves that property in order to such taking, is said to commit theft.”

1. “Whoever, intending to take dishonestly”

Which means that it can apply to any person, who intends to dishonestly take – let’s stop right there.

Dishonest intent

Noting that the word dishonest is used is crucial. When you look at the fact situation, first you must determine whether the person ‘dishonestly’ took something or not.

A key distinguishing factor for dishonest intent is the act is done deliberately, with the knowledge that the person is not supposed to do the act. On the other hand, when a person takes something deliberately, thinking that he is supposed to take it, he will not be liable for theft.

For example, if you take the car keys of your neighbour, knowing that it’s his, then that’s theft. However, if you took it thinking it’s your own, then that’s not theft – simple, because there’s no ‘dishonesty’ in there. You honestly believed the keys are yours.

Dishonest intention = mens rea

Since, without mens rea, an act is not an offence, therefore, dishonest intent must be present.

Lesson – an act of theft must be carried out with dishonest intention.

2. “any movable property”

In terms of mobility, property is classified as movable and immovable. Things which are “attached to the earth” are considered immovables. They would be trees, shrubs, walls, or buildings, or things which are attached to the building so as to enjoy its benefits (fans, doors, floor tiles, etc).

Everything else falls under the ambit of movable property. Even things like standing timber, growing crops or grass are considered movable.

Why the exception?

For the simple reason that these are meant to be uprooted from the earth – whereas building and walls are meant to stay, these are sown so that they can later be moved for use.

Can immovables be subject to theft?

No, and yes. No, because the law clearly states that it must be movable property.

Now what about things such as fans, and tiles, and doors, which can be easily taken off? Even consider the fact that sandalwood theft is rife across parts of India. How can these be subject to theft?

Once these are  “detached from the earth” (or buildings, in case of fans or tiles), they are, by definition, movable. Therefore, even theft of immovables are possible and can happen.

Obviously, theft of a house is a virtually impossible thing to do, so not all immovables can be subject to theft.

To sum it up, here is Explanation 1 to S. 378

“Explanation 1.—A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.”

3. “out of the possession of any person”

Means that:

i) The person in question has possession, or physical control, of that property

ii) That person need not be the owner (therefore, “any person”, irrespective of ownership)

From what we have discussed thus far, the dishonest intention is to take the movable property out of a person’s possession.

Simply intending to move a flower vase from the dining room to the drawing room is not theft – the owner of the house continues to have constructive possession over everything inside their house, although they may not physically hold everything at the same time (which would be actual possession).

To intend to take it outside the house, i.e., absolutely outside their realm of possession, would be theft.

4. “without that per­son’s consent”

The most obvious bit. If a person agrees to another taking his property, it cannot be theft. This is because, in such a case it is open to the person to scrutinize the other person’s intention, amongst other things. Having done that, a person facilitates his own undoing, and cannot claim for the same.

The consent can be express or implied. (Explanation 5)

5. “moves that property in order to such taking”

This part is the most critical, along with the presence of dishonest intention.

A layman’s understanding of theft, means to “steal” or to take something away.

If you read everything discussed above, carefully, a second time…you’ll realize that theft constitutes two things, in essence:

First, the dishonest intention to move a property out of another’s possession.

Second, actually moving it.

In the second, the moving does not need to be “out of another’s possession”, but rather simply moving it in any direction + with the intention or objective to ultimately move it out of that person’s possession.

Therefore, the intention or the aim is to move it out of the person’s possession. With that dishonest intention in mind, as soon as the person moves it in any way, that constitutes theft.

So, if X goes to Y’s house, puts a pen lying on the table in his pocket, in order to take it back with him to his home, he commits theft. Even if the pen falls out of X’s pocket, and he never takes it Y’s house, the theft has been committed the moment he moved it with the dishonest intent.

Also, moving it not only constitutes actually moving it, but also, doing something, which allows for that property to move. For instance, if a boat is tied to a pier on Zayn’s property, and Parag removes the ropes so that it floats into the part of the lake which is his property, although he is not at all physically moving the property, he commits theft.

To reiterate, be careful of the layman understanding of theft. The property need not actually go outside one’s possession. The act of moving, in any way or direction, would constitute theft, if the required intention is present.

Lesson 1 – the intention is to move it out of another’s possession; as soon as the property is moved in any way, within or without the possession of the other person, theft is committed.

Lesson 2 – the offence of theft is basically the moving of property in any way, with a specific, dishonest intention. Whether the intent actually materializes (taking it out of another’s possession) or not is of no significance.

If the act itself does not materialize (i.e., moving it), then we have a case of attempted theft.

Look out for the practice questions that will follow this post!

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