Essentials of Theft

Section 378 of IPC, defines “Theft” as, “Whoever, intending to take dishonestly anything,
animate or inanimate 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.”
According to Section 379 of IPC in order to constitute “Theft” 5 factors essential:-

(1) Dishonest intention to take property;

Section 380 in The Indian Penal Code, Theft in dwelling house, etc.—Whoever commits theft
in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or
used for the custody of property, shall be punished with imprisonment of either description
for a term which may extend to seven years, and shall also be liable to fine.

Thus, by focussing on one essential at a time, it may be proven that Elizabeth is guilty of
committing theft in a dwelling house, and should thus, be convicted under Section 380 of the
IPC for the same.

(1) Dishonest intention to take property

Intention is the gist of the offence. The intention to take dishonestly exists when the taker
intends to cause wrongful gain to one person or wrongful loss to another person.

In Madra Damri and anr vs Emperor, AIR(1946) Nag 221, it was held that, the intention to
take dishonestly must exist at the time of the moving of the property. The taking must be
dishonest. It is not necessary that the taking must cause wrongful gain to the taker, it will
suffice if it causes wrongful loss to the owner.

In the case of Queen Empress vs. Sri Churn Chungo, (1895) ILR 22 Cal 1017, “Taking”
need not be with intent to retain property permanently. It is not necessary that the taking
should be permanent or with the intention to appropriate the things taken. There may be theft
without an intention to deprive the owner of the property permanently.
In the case in hand, the intention of Elizabeth was not to deprive Diana of her documents
permanently, but on the other hand, it was only to dishonestly remove the document from
Diana’s possession temporary and for a non-perpetual duration of time. However, it has been
clearly a precedent that the intention with which the theft is to be executed, need not be
permanent in nature. Just a mere intention to remove the object of theft from the possession
of the owner, with an intention to return it later, without the knowledge of the owner, is
enough to constitute the offence of theft.

In the case of Pyare Lal Bhargava vs State Of Rajasthan, 1963 AIR 1094, 1963 SCR Supl.
(1) 689, a government employee took a file from the government office and presented it to an
outsider, made a copy available to the outsider, and brought it back to the office after two
days of taking it away. It was held in this case that permanent taking away of a person’s
property is not essential, even a temporary takeaway of the property with dishonest intention
is enough to constitute the offence of theft.

Similarly, Elizabeth removed the document from Diana’s possession temporarily by clicking
it’s pictures, thus making a copy for herself, and then returned the documents in Diana’s
possession, with a dishonest intention of causing wrong-full loss to Diana and a wrong-full
gain to herself at the same time and is Therefore, clearly guilty of possessing intention of
theft and in turn, the theft of the documents itself.

(2) The property being anything, animate or inanimate must be movable in nature

One of the foremost components of theft is that the subject matter of the theft needs to be a
“Movable Property”. “Moveable Property” is defined under Section 22 IPC which includes a
corporeal property of every description. It is beyond doubt that a document is a “Movable
Property” within the meaning of Section 22 IPC which can be the subject matter of theft. A
“Document” is a “Corporeal Property”. A thing is “Corporeal” if it has a body, material and a
physical presence. As per Section 29 IPC, “Documents” denotes “any matter expressed or
described upon any substance by means of letters, figures or marks or by more than one of
those means, intended to be used, or which may be used as evidence of that matter”.

The counsel pleads that, this definition would include within its ambit, the documents of
Diana. Diana’s documents and the replication of the documents and the contents thereon have
a physical presence and therefore, are certainly “corporeal property” and the same can be the
subject matter of theft.
In, Ramaswami Aiyer vs Vaithiling Mudali , it was held that, papers forming a part of the
record of a case, of any such confidential information contained in a document, is movable
property within the meaning of Section 22 of IPC .

In respect to the current facts, the documents of Diana which are clearly perceivable and
confidential in nature, vests her with corporeal rights regarding the same and hence the
property that is Diana’s documents, comes under the ambit of animate or inanimate movable
property under Section 22 of the IPC and can thus, be subjected to theft.

In the case of Mahalakshmi Spinner Ltd. and Others vs State of Haryana and Others,2007
CriLJ 429 (P&H) it was held that where there is a specific/ special law covering a question
of law, the general law contained regarding the question will not be applicable in the
instance.
For example, there is a special law covering a theft of electricity i.e. Section 135 of the
Electricity Act, 2003, and hence, the general law contained in Section 379 of the IPC will not
be applicable. Law is thus well settled that special law will prevail over the general law. Once
there is a specific provision in any act in respect of providing of punishment for theft of
electricity, no offence under section 379, IPC could be alleged.

However, citing the facts of the case, it is evident that the offense of “Data Theft” has not
been recognised in our state and any special legislation regarding the same has not been
codified, hence by the interpretation of the above case, it can be held that due to the clear
absence of any special provision of law regarding the theft of data or digital documents, the
theft of the data should be tried under the general provision of law i.e. the general provision
of theft provided under Section 378 of the IPC, which can be applicable in the present case.

(3) It should be taken out of the possession of another person

In the case of, Hossenee vs Rajkrishna (1873) 20 WR(Cr) 80, it was held that, it is an
absolute essential for theft that the property must be in the possession of the prosecutor.

The term “possession” has been defined in the case, Harichandran vs State of Tamil Nadu,
1997 Cr LJ 41 (Mad), as, a movable thing is said to be in the possession of a person when
he is so situated with respect to it that he has the power to deal with it as owner to the
exclusion of all other persons, and when the circumstances are such that he may be
presumed to intend to do so in case of need.

Since Diana had, in this instance, the exclusive right to deal with the property as its owner
with the exclusion of all other people to do so, the documents in the present case can be said
to be in the possession of Diana and thus, can be subjected to theft.

A gentleman’s watch lying on the table in his room is in his possession though it is not in
his hand, and though he may not know whether it is on his writing table or his dressing table
or in his hall, he will still be considered to be in possession of the watch.
Similarly in the present case, though Diana was not in actual physical possession of the
documents at the time of the commitment of theft, however, she had the knowledge of the
documents being present somewhere in her house and it can therefore, be clearly inferred
that Diana was indeed in possession of the documents when they were stolen, the offence
committed being theft, with the essential of “possession of property stolen” being proven.

Further in the case of, State of Maharashtra vs Vishwanath,1979 Cr LJ 1193, it was held
that, Transfer of possession of movable property without consent of the person in
possession need not, however, be permanent or for a considerable length of time nor is it
necessary that the property should be found in possession of the accused. Even a transient
transfer of possession is sufficient to meet the requirements of this essential. .

Relating this decision to the facts of the present case, it is obvious that the temporary nature
of Elizabeth’s actions, of taking Diana’s documents out of her possession, clicking its
pictures and through this action, making a copy of it, makes no difference at all and
movement of something out of the possession of a person, even if it may be for a short
duration and of a temporary nature, is still considered to be “moving” something out of
someone’s possession and hence, fulfils the said essential of theft making it clear that
Elizabeth moved the documents out of the possession of Diana with the mala-fied intention
to commit theft.

(4) It should be taken without the consent of that person

The thing stolen must have been taken without the consent of the person in possession of it.
Consent may be expressed 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.
In the case of Prafulla Saikia vs The State Of Assam 2012 CrLJ 3889 {GAU}, it is seen
that an employee of a Printing Press, was caught red-handed with a bundle of 84 numbers of
stolen ballot papers for the election of the Panchayat President which were only supposed to
be printed in the said printing press. He had already committed the offence of theft no
sooner he, with dishonest intent, to take the said ballot papers out of the possession of the
owner of the press, without the consent of the owner of the press, moved the ballot papers in
order to such taking. Thus, the offence of theft, as defined by Section 378 IPC, in respect of
the said ballot papers, was held, already complete.

In the present case, Elizabeth clicked pictures of the set of vignettes written by Diana which
were kept in Diana’s room, without Diana’s permission or knowledge. The fact that Diana
neither knew or permitted Diana impliedly or expressly to take pictures of her vignettes
proves that Elizabeth did not have Diana’s consent for the same, making it a contributory
factor to Elizabeth’s theft.

In other words, when a person intends to dishonestly take any movable property out of the
possession of any person, without the consent of that person, and moves that property in
order to such taking, he/she will be said to have committed theft, as seen in the present case
where Elizabeth made copies of Diana’s vignettes through the photographs clicked by her
without Diana’s expressed or implied consent.

(5) There must be some moving of the property in order to accomplish the taking of it

The movement of property out of the possession of the owner is not the generic movement
of property as seen in other cases, as the documents have in the present case not been
actually physically moved or in other words ultimately remained in the possession of its
actual owner. However, the counsel pleads that the wrongful gain or loss due to theft shall
not necessarily be a result of a permanent movement of property of its owner but the
wrongful loss or gain may also result from the temporary dislocation of the owners property
from his possession and therefore constituted as theft.

In the case of, Pyare Lal Bhargava vs State Of Rajasthan, 1963 AIR 1094, 1963 SCR
Supl. (1) 689, it was held that to commit theft, one need not take movable property
permanently out of the possession of another with the intention not to return it to him. It
would satisfy the definition if he took any movable property out of the possession of
another person though he intended to return it later on.
In the light of the ratio laid down in the Pyare Lal Bhargava case, it is clear that, temporary
removal of original documents for the purpose of replicating the information contained in
them in some other medium would thus fulfil the requirement of “moving” of property
which is the actus reus of the offence of theft as defined under Section 378 IPC.

Similarly in the case of, Birla Corporation Ltd vs Adventz Investments and holdings Ltd
and Ors, MANU/SCOR/06662/2019, it was held that, Information contained in a
document, if replicated, can be the subject of theft and can result in wrongful loss, even
though the original document was only temporarily removed from its lawful custody for the
purpose of extracting the information contained therein. The court also held that, the
replication of documents in any way or use of information contained in them and their
contents thereon will amount to theft.

The counsel pleads that in the present instance, the copying of the document by clicking its
pictures constitutes as a way of replicating the document, i.e. a “corporeal property” and the
same has to constitute a movement of the property from the table on which the document
was kept to Elizabeth’s phone on which the copy of the document was made. Here the
electronic replication of property has to be considered as movement of the property without
the property being actually and physically moved at all and the same can be the subject
matter of theft.

Thus, in light of the above establishments, the counsel contends that, as all the essentials of
theft as specified under Section 379 IPC have been satisfied by the acts of Elizabeth, she is
guilty of committing the offence of theft as defined under Section 378 & 380 of the IPC.