About this topic
Theft is defined in Section 303 of the B.N.S. It is the first section of Chapter 17, which deals with offences against property. These notes cover the definition, the five requirements built into it, the situations in which the taker's mind is innocent (with two leading cases), the punishment under Section 303(2), and the related offences in Sections 304 to 307.
Four problems to test yourself
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Decide whether each of the following is theft. Each is answered in the Quick revision section below.
- The calculator: Prince leaves an exam hall with a calculator from his desk, sure that it is his own. That evening he realises it belongs to the student who sat beside him.
- The earring: Zoya finds a gold earring lying in the sand of a public beach. Nobody is around, and she pockets it.
- The car at the service centre: Farhan's car is at a service centre, which lawfully keeps it until the repair bill of 40,000 rupees is paid. At night, Farhan uses his spare key and drives his own car away.
- The sandalwood tree: A man saws down a sandalwood tree in a Government forest at night, meaning to sell the wood. Forest guards arrive and he runs off, leaving the log behind.
Definition of theft: Section 303(1)
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"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."
This single sentence contains five requirements. They can be framed as five questions a judge asks:
| No. | Question | Requirement |
|---|---|---|
| 1 | What was the thing? | Movable property |
| 2 | Who possessed it? | Taken out of the possession of any person |
| 3 | Did that person consent? | Without that person's consent |
| 4 | Was it moved? | Moved in order to such taking |
| 5 | What was in the taker's mind? | Intention to take dishonestly |
If even one of the five answers fails, there is no theft. The fifth question, the state of mind, is the most important.
Requirement 1: Movable property
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Only movable property can be stolen. Under Section 2(21), "movable property" includes "property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth".
A laptop, a buffalo or a sack of wheat can be stolen. A farm or a flat cannot.
Things attached to the earth: severance
A thing attached to the earth can still come within the law of theft once it is severed.
- Explanation 1: "A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth."
- Explanation 2: "A moving effected by the same act which affects the severance may be a theft."
In the sandalwood problem, the wood became movable property the moment the tree was severed, and that same act moved it. The theft was complete even though the log never left the forest.
Property need not be solid
- Gas in a cylinder, or water stored in a tank, can be stolen like any other thing.
- Electricity is energy rather than a physical object, so it is dealt with by a special law. Section 135 of the Electricity Act, 2003 punishes theft of electricity, such as tapping a line or tampering with a meter.
Requirement 2: Possession, not ownership
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Theft protects possession, not ownership. The property must be taken "out of the possession of any person".
A wallet left on the seat of a locked car is still in its owner's possession while he shops nearby.
Property in nobody's possession
Property that is in nobody's possession cannot be the subject of theft. In the earring problem, the earring was in nobody's possession, so Zoya committed no theft.
However, under Section 314, a finder who keeps such property for herself, without using reasonable means to trace and inform the owner, may commit dishonest misappropriation of property.
An owner can commit theft of his own property
Since the law protects possession, even an owner can commit theft when someone else lawfully possesses the property.
In the car problem, the service centre lawfully held Farhan's car as security for its bill. By secretly driving it away, Farhan deprived the centre of that security and caused it wrongful loss. He committed theft of his own car. An illustration in the B.N.S. makes the same point: a man who takes back his own pawned watch without repaying the loan commits theft.
But if the bill had already been paid and the centre was wrongly refusing to release the car, taking it back would not be dishonest, and there would be no theft.
Theft is an offence against possession. An owner who takes his property from a person in lawful possession of it (for example, as security) can commit theft; an owner who takes it from a person wrongfully withholding it does not act dishonestly.
Requirement 3: Consent
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The taking must be without the consent of the person in possession. Explanation 5 provides:
"The consent mentioned in this section may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied."
| Form of consent | Meaning | Illustration |
|---|---|---|
| Express | Given in words, spoken or written | Words, spoken or written |
| Implied | Read from conduct and relationship | Colleagues who always use each other's pens need not ask each time |
| Through a person with authority | Given by someone authorised, expressly or impliedly, on the possessor's behalf | A sweet shop's salesperson hands a free sample on the owner's behalf |
Whether implied consent existed is always a question of fact.
Requirement 4: Movement
The property must be moved "in order to such taking". Even a slight movement is enough.
A shop assistant slips a phone from the display into a carton of waste paper, planning to carry it out at closing time. The theft is complete when the phone drops into the carton.
Indirect movement: Explanations 3 and 4
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."
- Removing an obstacle: Opening the sluice gate of a neighbour's fish pond, so that the fish swim into one's own channel, moves the fish.
- Separating it from another thing: Cutting the strap of a bag on someone's shoulder moves the bag by separating it.
Explanation 4: "A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal."
A person shakes a bag of grain so that a neighbour's goat follows him out of the yard. He has moved the goat, and also the silver bell around its neck.
Requirement 5: Dishonest intention
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The definition demands an intention "to take dishonestly". The relevant definitions in Section 2 are:
- Dishonestly, Section 2(7): "doing anything with the intention of causing wrongful gain to one person or wrongful loss to another person".
- 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".
- Gaining and losing wrongfully, Section 2(38): "A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property".
The taking need not be permanent
Because a person loses wrongfully even when he is only kept out of his property, a temporary taking can be theft.
A person takes a neighbour's motorcycle without asking, rides it to a wedding and returns it two days later. The owner was wrongfully kept out of it for two days. That is wrongful loss, and it can be theft.
When the mind is innocent
Courts have explained two situations in which the taker's mind is not dishonest.
First situation: honest claim of right
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An illustration in the B.N.S. says that a person who, in good faith, believes another's property to be his own and takes it, does not commit theft.
In the calculator problem, Prince took the calculator honestly believing it was his own, so he committed no theft. But an illustration to Section 314 adds that if he dishonestly keeps it after discovering the mistake, he commits dishonest misappropriation.
The claim of right must be genuine, not a cover invented for the taking.
Ram Ekbal Rai v. Jaldhari Pandey (Supreme Court, 1972)
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Ram Ekbal Rai v. Jaldhari Pandey (1972), Supreme Court.
Facts: In 1954, the plot of a deceased tenant was sold at a court auction to recover unpaid rent. Jaldhari Pandey, who bought it, claimed that the court had put him in possession. According to the complaint, in March 1962 the appellants came with a large armed group, harvested the standing crop and took it away. They were convicted of theft and of being members of an unlawful assembly; the conviction survived the appeal and the High Court.
Appellants' case: They had always cultivated the land as sub-tenants of Sita Devi, a widow of the tenant. She had never been made a party to the rent suit and denied that the decree bound her.
Findings: The land had been under the water of the Ganga from 1954 to 1959. The purchaser seemed to have received only symbolic possession, that is, possession on paper. Once the land re-emerged, Sita Devi held actual possession, as the revenue authorities and a Magistrate had also found.
Held: It was impossible to say that the appellants were not acting under a bona fide belief that they were entitled to possession. Title and possession were in an extremely fluid state, and the quarrel belonged in a civil court. The convictions under Sections 379 and 143 of the old Indian Penal Code were set aside.
Principle: The harvested crop was movable property, but the case failed on the mental element. A genuine dispute over land or crops cannot be turned into a theft case.
The offences under Sections 379 and 143 of the Indian Penal Code now fall under Section 303(2) and Section 189(2) of the B.N.S. respectively.
Second situation: no aim of wrongful gain or wrongful loss
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The mind is also innocent when a person knows that the thing is not his, but has no aim of causing wrongful gain or wrongful loss.
Vithal Yedu Khalse v. State of Maharashtra (1982), Bombay High Court.
Facts: One evening in March 1979, Vithal went to the Barshi police station to make a complaint. By his account, the constables were asleep, and when he woke them, they threatened him to leave. Wanting proof, he took a handcuff hanging over the officer's table and set off for Solapur to show it to the Superintendent of Police. Stopped there by a Head Constable, he immediately explained his purpose, but he was prosecuted and convicted.
Sessions Court: It accepted that he truly meant to go to the Superintendent, yet upheld the conviction, saying he could have complained without the handcuff.
Accused's stand: He maintained that he never meant to steal a handcuff worth 9 rupees.
Held: The High Court rejected the Sessions Court's approach, noting that a poor person is often not heard at a police station, so he felt he needed proof. Once his purpose was found genuine, theft could not stand, because the main ingredient of theft is a dishonest taking with a view to cause wrongful loss, and he had no intention whatsoever of causing wrongful loss to the police. He was acquitted.
Principle: Taking a thing one knows is not one's own is not theft where there is no intention to cause wrongful gain or wrongful loss.
His conviction had been under Section 380 of the old Indian Penal Code, for theft in a building used for the custody of property. That offence is now covered by Section 305 of the B.N.S.
Distinguishing the motorcycle example from the handcuff case
| Point | Motorcycle example | Vithal Yedu Khalse (handcuff) |
|---|---|---|
| Purpose of taking | To enjoy the bike himself | Only as evidence, carried to a senior officer of the same police force |
| Wrongful loss intended? | Yes: the owner was wrongfully kept out of it | No intention whatsoever of causing wrongful loss to the police |
| Result | Can be theft | Not theft; acquitted |
Purpose made the difference. A temporary taking for one's own use causes wrongful loss; a taking only to carry the thing, as evidence, to a senior officer of the same police force does not.
Punishment for theft: Section 303(2)
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Once all five requirements are proved against the accused, Section 303(2) provides the punishment:
"Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both and in case of second or subsequent conviction of any person under this section, he shall be punished with rigorous imprisonment for a term which shall not be less than one year but which may extend to five years and with fine"
The proviso reads:
"Provided that in cases of theft where the value of the stolen property is less than five thousand rupees, and a person is convicted for the first time, shall upon return of the value of property or restoration of the stolen property, shall be punished with community service."
| Situation | Punishment |
|---|---|
| Theft (general) | Imprisonment of either description up to 3 years, or fine, or both |
| Second or subsequent conviction under Section 303 | Rigorous imprisonment of not less than 1 year, which may extend to 5 years, and fine |
| First conviction, stolen property worth less than 5,000 rupees, and the property or its value is returned | Community service |
In simple words: a first offender who stole something worth less than 5,000 rupees, and who returns it or its value, is to be punished with community service.
Snatching and other theft offences
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The B.N.S. treats some forms of theft more seriously.
Snatching: Section 304
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."
Section 304(2): Snatching is punishable with imprisonment of either description up to 3 years, and the offender is also liable to fine.
The cut bag strap from the movement examples (a bag moved by cutting its strap on someone's shoulder) comes under snatching in Section 304.
Theft in a dwelling house, of transport, of an idol, or of Government property: Section 305
Section 305 applies to whoever commits theft:
- "in any building, tent or vessel used as a human dwelling or used for the custody of property";
- "of any means of transport used for the transport of goods or passengers";
- "of any article or goods from any means of transport used for the transport of goods or passengers";
- "of idol or icon in any place of worship"; or
- "of any property of the Government or of a local authority".
Punishment: imprisonment of either description up to 7 years, and the offender is also liable to fine.
The sandalwood thief is caught by Section 305, because the tree in the Government forest was Government property.
Theft by clerk or servant: Section 306
"Whoever, being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
The shop assistant who slipped the phone into the waste-paper carton is caught by Section 306.
Theft after preparation for causing death, hurt or restraint: Section 307
Section 307 deals with a thief who comes prepared for violence.
"Whoever commits theft, having made preparation for causing death, or hurt, or restraint, or fear of death, or of hurt, or of restraint, to any person, in order to the committing of such theft, or in order to the effecting of his escape after the committing of such theft, or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
A burglar who carries a knife in case the family wakes up falls under Section 307.
Comparison of theft offences
| Section | Offence | Punishment |
|---|---|---|
| 303(2) | Theft | Imprisonment of either description up to 3 years, or fine, or both; second or subsequent conviction: rigorous imprisonment 1 to 5 years and fine; community service under the proviso |
| 304 | Snatching | Imprisonment of either description up to 3 years and fine |
| 305 | Theft in a dwelling or custody building, of or from transport, of an idol or icon in a place of worship, or of Government or local authority property | Imprisonment of either description up to 7 years and fine |
| 306 | Theft by clerk or servant of property in possession of master or employer | Imprisonment of either description up to 7 years and fine |
| 307 | Theft after preparation for causing death, hurt or restraint, or fear of them | Rigorous imprisonment up to 10 years and fine |
Quick revision
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- The calculator: Prince committed no theft, because his belief that the calculator was his own was honest.
- The earring: Zoya committed no theft, because the earring was in nobody's possession. Keeping it without trying to find the owner could, however, be dishonest misappropriation.
- The car at the service centre: Farhan committed theft of his own car, because the law protected the service centre's lawful possession.
- The sandalwood tree: The sandalwood thief committed theft the moment the tree was severed. It is an aggravated theft under Section 305, because the tree was Government property.
- Every theft problem can be solved through the five questions: movable property, possession, consent, movement and dishonest intention.
