The dictionary meaning of Theft is “the act of stealing”, specifically “the felonious taking and removing of personal property with intent to deprive the rightful owner of it.” The offence of theft is provided in Section 378 to Section 460, Chapter 17, Offence Against Property, of Indian Penal Code, 1860. Theft, in layman terms means the taking of a person’s property without the consent of the owner and Section 378 of the Indian Penal Code, 1860 (IPC) has provided a proper legal definition of theft.

It is defined under Section 378 of the Indian Penal Code. It states that any person with a dishonest intention to take any movable property out of the possession of a person without the person’s consent to whom it belongs move that property is said to commit theft. 

There are five main ingredients of theft:

• Dishonest intention to take property;
• Property should be moveable;
• The property must be taken out of possession of another person;
• Property should be taken without the person’s consent;
• Property should be moved, in order to such taking.

1. Dishonest intention to take property

It is the main ingredient of the theft. Any property which is taken will not amount to theft until the intention was dishonest. And the intention of the person who is taking the property was to cause wrongful gain to one person and wrongful loss to another person.Taking the definition of Dishonestly in Section 24 and Wrongful gain and Wrongful loss in section 23 together a person can be said to have dishonest intention if in taking a property, it is his intention to cause gain by unlawful means of the property to which the person who is gaining is not legally entitled.

Illustration: A owns a necklace, and B finds it in A’s house. The necklace is in A’s possession and if B dishonestly takes it. B commits theft. 

2. Property should be movable

To commit theft property should be movable. Property which is capable of being carried around is said to be a movable property. Any property or a thing which is permanently attached to the earth said to be an immovable property and will not be a subject of theft. But it will become a subject of theft when it is severed from the earth and capable of being moved without the consent of a person in whose possession it is.

Illustration: A standing tree which is attached to the earth is said to be immovable property. But it will become movable when it is cut down. 

Further, immovable property can be converted into movable property and once it has been converted such property becomes capable of stealing. In Avatar Singh v. State of Punjab AIR 1965 SC 666  Electricity was categorised as immovable property but stealing of electricity has been made punishable offence by the Indian Electricity Act, 1910 which was letter replaced by Electricity Act, 2003.

Case Law: Pyarelal Bhargava Vs. the State of Rajasthan 1963 AIR 1094 1963 SCR SUPL In this case, an office file from the chief engineer office was removed temporarily and was given to the private party for a day, it amounts to theft. The Hon’ble court held that to commit theft the loss needed to be permanent. Even property dispossession is temporary, a person taking the property intended to restore it is said to commit theft. 

3. The property must be taken out of possession of another person

Any property which is stolen should be in possession of another person. Until the property is removed no offence has been committed.If a property belongs to no one there cannot be theft that is res nullius (things belonging to no one). The offence of theft comes in to existence when property is removed from somebody’s possession without his consent. There cannot be a theft of a dead body buried in a cemetery or theft or other thing which belongs to no one. However, if a corpse lying out of the deceased’s house for being taken to buried ground, it is seized by some person and carried without the consent of the relatives of deceased and thrown into river, it is no theft under section 378 but it is an offence under Section 297(offering indignity to a human corpse) Indian Penal Code.

Illustration: Y finds a mobile phone which belongs to X on a sofa in X’s house. A mobile phone was in the possession X if Y removes it dishonestly, Y commits theft. Here mobile phone was in possession of X.

Case Law: Rakesh Vs. State of NCT of Delhi 2015, In this case, the Hon’ble court held that mere intention of the offender to take property dishonestly out of the possession of a person without his consent is no offence. Until the property is removed, no offence has been committed. The actual removal of property from another person’s possession is necessary, as mentioned in Section 378 of IPC.

4. Property should be taken without the person’s consent

If a property of a person in possession is taken without his prior consent (express or implied) will amount to commit theft. The offence will take place when the offender takes the property dishonestly and without the consent of that person. 

Illustration: S, being an R’s friend, enters the house of R and runs away with the ring which was on R’s table, without R’s consent. S has committed theft. As here R’s consent is not present.

Case Law :K.N. Mehra Vs. the State of Rajasthan AIR 369, 1957 SCR 623 In this case, the Supreme Court held that proof of intention to cause permanent deprivation of property or to obtain wrongful gain is not necessary for the purpose of proving dishonest intention. Absence of a person’s consent to whom the property belongs at the time of moving it and the presence of dishonest intention at the time of taking that property are the essentials to commit theft.

5. Property should be moved, in order of such taking

Moving a property with a dishonest intention is an initial stage of committing a theft. So, the property should be moved, to commit an offence. 

Illustration: A goes to B’s house, and sees a diamond necklace lying on the table. A hides that necklace at B’s place and thinks whenever he will visit next time. He’ll take it. Here, A commits no theft as the property has not been moved.

Punishment for theft is given under Section 380 of IPC.  Whoever commits theft shall be punished with 3 years of imprisonment or fine or with both.

Section 381: Theft by Clerk or Servant of property in possession of Master. Any Person being a clerk or servant commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine.

Section 382: Theft after preparations made for causing death, hurt or restraint in order to the committing of theft.. Any person who commits theft, having made preparations for causing death or hurt or restraint or fear of any of these in order to commit 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 with fine.

Conclusion:

Theft in the broad sense and theft as defined by the IPC are similar to two separate paths. Even ownership is irrelevant to theft. Possession is all that is required for theft. If the first move is done dishonestly, a theft has already occurred. The stealing offence requires dishonest motives. Only material possessions are considered stolen. Consent is another element in the theft crime. Consent may be expressed or implicit. However, transporting any physical object without permission will be considered larceny.