Classification of Offences against Property

About this topic

All offences against property are placed in Chapter 17 of the B.N.S., titled "Of offences against property", which runs from Section 303 to Section 334.

Students often memorise these Sections as a long list and then mix them up in the exam. Theft looks like snatching, extortion looks like robbery, and criminal breach of trust looks like cheating. The way out is to stop asking what was lost and to start asking how it was lost. The law cares less about the thing and more about:

• the route by which the property left its owner; and
• the mind of the person who caused it.

This matters in practice too. The Section named in the charge decides what the prosecution must prove and how severely the accused can be punished.

One laptop, ten losses

The whole chapter can be understood through a single laptop. It belongs to Zoya, a second-year law student in Pune. Over one unlucky semester she loses that laptop in ten different ways, and each loss is a different offence under the B.N.S.

1. The library. While Zoya steps away for a minute in the college library, someone quietly slips the laptop out of her bag.
2. The traffic signal. A man on a motorcycle grabs the laptop bag from her lap while she sits in an auto-rickshaw at a traffic signal, and speeds away.
3. The photo threat. A stranger messages her: "Leave your laptop at the college gate tonight, or I will put your edited photos online." Frightened, she leaves it there.
4. The knife. On a dark road, a man holds a knife to her and says, "Laptop, now." She hands it over at once.
5. The highway. Six men armed with iron rods stop her cab on the highway at night and force her to hand over the laptop.
6. The fake technician. A man in a fake service uniform tells her that her laptop battery is dangerous and must be replaced. Believing him, she hands the laptop over. He disappears.
7. The warden. Before the vacation, she leaves the laptop with her hostel warden for safe keeping. The warden sells it.
8. The passer-by. The laptop slips out of her scooter bag on a public road. A passer-by picks it up, sees her name and phone number on a sticker, and still sells it.
9. The coffee. A jealous classmate pours coffee into the keyboard so that she cannot submit her project.
10. The intruder. A man pushes his way into her rented room only to frighten her. He touches nothing and walks out. Here the laptop is not even touched.

Each story is solved at the end of these notes using the method below.

The sorting machine: three questions

Every offence in the chapter can be sorted by asking three questions, in this order.

The key word: "dishonestly"

Most of Chapter 17 turns on one word, dishonestly. It must be understood before the sorting machine is used.

Clauses 36 and 37 of Section 2 explain the two halves of this definition:

• Wrongful gain, Section 2(36): "gain by unlawful means of property to which the person gaining is not legally entitled".
• Wrongful loss, Section 2(37): "the loss by unlawful means of property to which the person losing it is legally entitled".

The word is about intention, not result. A person acts dishonestly the moment he aims at an unfair gain for someone or an unfair loss to someone.

Fraudulently

A close cousin of "dishonestly", used in cheating, is fraudulently.

The gain question: two families of offences

The first question, whether the wrongdoer was trying to gain, splits the whole chapter into two families.

The door question: five routes out of the owner's hands

For the gain-seeking family, the second question asks through which door the property left its owner. There are five doors.

Door 1: Taking without consent (theft, Section 303)

The owner never agreed to part with the thing. It was simply taken. This is theft.

Section 303(1): "Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."

Five building blocks of theft

1. A dishonest intention.
2. Movable property.
3. The property must be in the possession of some person.
4. Absence of that person's consent.
5. Some movement of the property.

Story 1, the quiet lifting from the bag in the library, sits squarely within theft.

Theft is a wrong against possession

• If a thing is in nobody's possession, it cannot be stolen. Such a case falls through a different door (Door 5, chance).
• Possession also explains why the warden in story 7 is not a thief: the laptop was already in his own possession when he sold it.

Section 303 also carries five Explanations, dealing with things attached to the earth, what counts as moving a thing, and how consent may be given.

Snatching (Section 304)

Story 2 passes through the same door, but faster.

Section 304(1): "Theft is snatching if, in order to commit theft, the offender suddenly or quickly or forcibly seizes or secures or grabs or takes away from any person or from his possession any movable property."

Door 2: Fear (extortion, Section 308)

Here the owner does hand over the property, but only because she is frightened. That is extortion.

Section 308(1): "Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property, or valuable security or anything signed or sealed which may be converted into a valuable security, commits extortion."

The word injury is very wide.

So the threat in story 3, to put edited photos online, is a threat of injury to Zoya's reputation and her mind.

Theft and extortion distinguished

Door 3: A lie (cheating, Section 318)

Again the owner hands over the property, but this time because she has been deceived. That is cheating.

Section 318(1): "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat."

Its Explanation adds: "A dishonest concealment of facts is a deception within the meaning of this section." So even silence can deceive, when a person dishonestly hides a fact.

The fake technician in story 6 used a lie, and the lie did the work that fear did in story 3.

Is a handover under fear or deception "consent"? (Section 28)

At Doors 2 and 3 the victim herself hands over the property, so it may be asked whether there was consent. Section 28 answers this.

Section 28: "A consent is not such a consent as is intended by any section of this Sanhita," and its first clause continues, "if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception".

Door 4: Trust (criminal breach of trust, Section 316)

The owner hands over the property willingly, with full knowledge, for a lawful purpose, and expects it to be kept, used or returned in a particular way. If the person trusted then betrays that purpose, the offence is criminal breach of trust.

Section 316(1): "Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust."

• Dominion simply means control.
• The heart of this door is entrustment. The warden in story 7 was given the laptop for safe keeping, and he sold it.

The two Explanations: employer's deductions

• An employer who deducts an employee's contribution from wages for a Provident Fund or Family Pension Fund, or for the Employees' State Insurance Fund, is deemed to have been entrusted with that amount.
• If he fails to pay it into the Fund, he is deemed to have used it dishonestly.

Punishment rises with the kind of trust betrayed

• Higher for carriers, wharfingers and warehouse-keepers.
• Higher for clerks and servants.
• Highest for public servants, bankers, merchants, factors, brokers, attorneys and agents.

Door 5: Chance (dishonest misappropriation, Section 314)

Here nobody handed the property over, and nobody took it out of anyone's possession. It simply reached the wrongdoer, by finding or by mistake. This is dishonest misappropriation of property.

Section 314: "Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which shall not be less than six months but which may extend to two years and with fine."

Explanation 1: "A dishonest misappropriation for a time only is a misappropriation within the meaning of this section." So even keeping the property dishonestly for a while, meaning to return it later, is enough.

The finder of property (Explanation 2)

"A person who finds property not in the possession of any other person, and takes such property for the purpose of protecting it for, or of restoring it to, the owner, does not take or misappropriate it dishonestly, and is not guilty of an offence; but he is guilty of the offence above defined, if he appropriates it to his own use, when he knows or has the means of discovering the owner, or before he has used reasonable means to discover and give notice to the owner and has kept the property a reasonable time to enable the owner to claim it."

It continues: "What are reasonable means or what is a reasonable time in such a case, is a question of fact." And then: "It is not necessary that the finder should know who is the owner of the property, or that any particular person is the owner of it; it is sufficient if, at the time of appropriating it, he does not believe it to be his own property, or in good faith believe that the real owner cannot be found."

Broken down, a finder:

• commits no offence if he takes the property to protect it for, or restore it to, the owner;
• is guilty if he appropriates it to his own use when he knows or has the means of discovering the owner;
• is guilty if he appropriates it before using reasonable means to discover and give notice to the owner, and before keeping it a reasonable time for the owner to claim it;
• need not know who the owner is; it is enough that he does not believe the property to be his own, or does not in good faith believe that the real owner cannot be found;
• whether his means were reasonable and his waiting time reasonable are questions of fact.

Story 8 belongs here. The laptop was lying on a public road, in nobody's possession, so picking it up was not theft. But the passer-by had the owner's name and number right in front of him, so he is guilty of dishonest misappropriation.

The mistake route

Property of a deceased person (Section 315)

Section 315 adds a special form of dishonest misappropriation. It covers a person who dishonestly misappropriates property knowing that:

• it was in the possession of someone at the time of that person's death; and
• it has not since been in the possession of anyone legally entitled to it.

The five doors at a glance

Robbery and dacoity: violence at the first two doors

Robbery and dacoity are not separate doors at all. They are the first and second doors (theft and extortion) with violence standing at them.

Robbery (Section 309)

Section 309(1): "In all robbery there is either theft or extortion."

When theft is robbery: Section 309(2)

"Theft is robbery if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint."

When extortion is robbery: Section 309(3)

"Extortion is robbery if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted."

Explanation: "The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."

Extortion and robbery distinguished (stories 3 and 4)

Both stories involve fear and delivery, but they fall on different sides of the line.

Dacoity (Section 310)

Dacoity simply adds numbers to robbery.

Section 310(1): "When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit dacoity."

The clock question: when did the dishonest mind begin?

The third question is most useful when two doors look alike, especially the lie door and the trust door. In both, the owner hands over the property.

The indigo illustration to Section 318

Section 318 itself shows why the clock matters for cheating. One of its illustrations says:

"A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract."

Harm without gain: the smaller family

In this family nobody gains, but the owner is still wronged. It has two members: mischief and criminal trespass.

Mischief (Section 324)

Section 324(1): "Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits mischief."

Explanation 1: "It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not."

Explanation 2: "Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly."

The coffee in story 9 is a simpler case. The value and utility of the laptop were destroyed, with intent to cause loss to Zoya.

Mischief and its aggravated forms run from Section 324 to Section 328.

Criminal trespass (Section 329)

Here the property is not even harmed. What is invaded is the peaceful possession of another person.

Section 329(1): "Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person or with intent to commit an offence is said to commit criminal trespass."

Criminal trespass can therefore be committed in two ways:

• unlawful entry into or upon property in another's possession, with intent to commit an offence or to intimidate, insult or annoy the person in possession; or
• lawful entry followed by unlawfully remaining there, with intent to intimidate, insult or annoy any such person or to commit an offence.

In story 10, the man entered to frighten Zoya, which is intimidation.

House-trespass: Section 329(2)

Since Zoya's room was used as a human dwelling, sub-section (2) applies.

Section 329(2): "Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit house-trespass."

Explanation: "The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass."

So story 10 is house-trespass. Criminal trespass and its graver forms, such as lurking house-trespass and house-breaking, run from Section 329 to Section 334.

Two groups outside the sorting machine

Two more groups complete the chapter. They do not fit neatly into the three questions, because they work in a special way.

Stolen property (Section 317)

Section 317(1): "Property, the possession whereof has been transferred by theft or extortion or robbery or cheating, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as stolen property, whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India, but, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property."

This definition looks back at the doors. Property that has passed through any of the gain-seeking routes carries a kind of stain. Points to note:

• Property becomes "stolen property" through theft, extortion, robbery, cheating, criminal misappropriation or criminal breach of trust.
• It does not matter whether the transfer, misappropriation or breach of trust took place within or outside India.
• It ceases to be stolen property once it comes back into the possession of a person legally entitled to its possession.

Section 317(2): "Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

Fraudulent deeds and dispositions of property (Sections 320 to 323)

Their marginal headings tell the story:

Here the wrongdoer is often the owner himself, who hides, shifts or falsely transfers his own property so that his creditors or other lawful claimants cannot reach it.

Solving the ten stories

Quick revision

• Chapter 17 of the B.N.S., "Of offences against property", runs from Section 303 to Section 334.
• Ask how the property was lost, not what was lost: the route and the mind matter.
• "Dishonestly" (Section 2(7)) is about intention to cause wrongful gain (Section 2(36)) or wrongful loss (Section 2(37)), not about result; "fraudulently" (Section 2(9)) means with intent to defraud.
• Gain question: gain-seeking offences (theft to dishonest misappropriation) versus harm-without-gain offences (mischief and criminal trespass).
• Door question: taking = theft (Section 303) and snatching (Section 304); fear = extortion (Section 308); lie = cheating (Section 318); trust = criminal breach of trust (Section 316); chance = dishonest misappropriation (Sections 314 and 315).
• Consent obtained by fear of injury or misconception of fact is no consent (Section 28).
• Robbery (Section 309) is theft or extortion with violence or fear of instant harm; dacoity (Section 310) is robbery by five or more persons.
• Clock question: in cheating the dishonest plan exists at the handover; in criminal breach of trust the dishonesty usually arises after it; the finder's wrong lies in what he does afterwards.
• Mischief (Sections 324 to 328) can be committed even on one's own property; criminal trespass (Sections 329 to 334) needs one of the named intentions, and house-trespass covers dwellings, places of worship and places for custody of property.
• Stolen property (Section 317) and fraudulent deeds and dispositions (Sections 320 to 323) complete the chapter.
• Story verdicts: 1 theft, 2 snatching, 3 extortion, 4 robbery, 5 dacoity, 6 cheating, 7 criminal breach of trust, 8 dishonest misappropriation, 9 mischief, 10 house-trespass.
• First ask about gain, then find the door, then check the clock. With these three questions, Chapter 17 stops being a list of Sections and becomes a map.