Report No. 42

Chapter 17

Offences wgainst Property

17.1. Introductory.-

In any statistical survey of crime, offences against property would find a prominent place. This is readily understandable, as one of the basic motives behind unlawful conduct is greed which, in the main, directs itself towards property, the result being that the law-breaker takes or attempts to take things that do not belong to him. The range of such activity is wide, and although much of it could, in a broad sense, be described as theft, the Penal Cod.-wisely, we think.-describes it under ten sub-heads, namely, theft, extortion, robbery and dacoity, criminal misappropriation of property, criminal breach of trust, receiving stolen property, cheating, mischief, fraudulent dispositions of property, and criminal trespass.

The main element common to these offences is 'dishonesty', which the Code describes as 'the intention of causing wrongful gain to one person or wrongful loss to another', but the manner in which dishonesty is exercised, is, in different cases, different. Thus, a pick-pocket and a cheat, both dishonestly take another person's property; but while the former does it surreptitiously, the latter does it openly. Hence the need for these subdivisions, for a clearer understanding of the different concepts involved.

Theft

17.2. Section 37.-definition of theft.-

Theft, by its definition, in section 378, is the dishonest removal of movable property out of the possession of any person without his consent. It is thus an offence against possession and not against ownership, so that even the owner of movable property can be guilty of theft in respect of that property. Illustrations (j) and (k) to section 378 make that clear.

17.3. Explanations.-

There are five Explanations added to section 378, and although we think the meaning of the section would not be in doubt without Explanations 2, 3, and 4, we are not suggesting their deletion, as the reason behind such deletion may be misunderstood.

17.4. Bona fide claim of right.-

We considered a suggestion that another Explanation may be added to section 378, making it clear that a bona fide claim of right to property is a good defence to a charge of theft. The idea behind the suggestion was that this principle, laid down by judicial decisions1, should be enacted into the section. Our attention was also invited to an express provision2 in the recently passed Theft Act of England to that effect. We are of the view, however, that the judicial decisions have settled the question so firmly that no legislative action is necessary, and we propose none.

1. See S. Sanyrth Apparao, AIR 1962 SC 586: 1962 (Supp) 1 SCR 8; and Chandi Kumar v. Abandidhar, AIR 1965 SC 585.

2. Section 2(1)(a), Theft Act, 1968 (English), provides that "a person's appropriation of property belonging to another is not to be regarded as dishonest, if he appropriates the property in the belief that he has, in law the right to deprive the other of it on behalf of himself or of a third person"

17.5. Sections 380 to 382.-

Ordinarily, theft is punishable with a maximum of three years' imprisonment under section 379. Then, we have three aggravated forms of theft defined in sections 380, 381 and 382. Theft in a dwelling house, etc. and theft by a clerk or servant are punishable with seven years' imprisonment under sections 380 and 381 respectively; and theft after preparation made for causing death or hurt is punishable with ten years' imprisonment under section 382.

We think a maximum of seven years' imprisonment should be enough for any offence of theft. We have already before us several suggestions for punishing certain kinds of theft more severely than section 379 does, and we have accepted some of them. We propose to add them in section 380, so that the punishment will be seven years' imprisonment, apart from any fine that may be imposed.

17.6. Theft in vehicles.-

The first suggestion is that theft in a vehicle used for the transport of goods or passengers should be treated in the same way as theft in a building, and we agree that there is proper justification for this.

17.7. Theft by an employee other than "clerk" or "servant".-

The second suggestion is that section 381 arbitrarily picks out "clerks" and "servants" from a host of employees for harsher penalty, if any of them commits theft of property in the possession of his employer. We agree that it would be better if all employees were treated in the same way, and we propose that the wording of section 381 should be suitably changed. Further, we have an apprehension that the expressions "clerk" and "servant" are likely to be narrowly construed as referring to persons close to a private employer. Since that is not the intention, we propose to substitute wider words in their place.

17.8. Theft of public property and of temple property.-

Next, it is suggested that theft of public property is more reprehensible than ordinary theft, and should be so treated; and again we agree. The same is the case of property in a place of worship or intended for the purpose of worship. These can be added in section 380.

17.9. Theft from victims of calamities.-

Another suggestion equally acceptable to us is that theft from the possession of a person who is at that time the victim of a calamity like fire, flood, earthquake or accident, should be treated as aggravated theft. This could be dealt with in a new section.

17.10. Revised sections in place of sections 380 and 381.-

We suggest, therefore, that in place of sections 380 and 381, the following be substituted.-

"380. Theft in a building, vehicle, temple etc.- Whoever commits thef.-

(a) in any building or tent used as a human dwelling or for the custody of property, or,

(b) in, or in respect of, any vehicle, vessel or aircraft used for the transport of goods or passengers, or

(c) in a temple, mosque, church, gurdwara, or other place of worship open to the public, in respect of any property which belongs to, or is part of, such place of worship, or

(d) in respect of any property of the Government or of a local authority, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

380A. Theft of property affected by accident, fire, flood etc.- Whoever, taking advantage of the occurrence of an accident in a public place or of a fire, flood, riot, earthquake or similar calamity, commits theft in respect of any property affected by such accident or calamity, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

381. Theft by employee.- Whoever, being employed in any capacity by another person, commits theft in respect of any property in the possession of that person, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

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