Theft

Section 305, aggravated theft. Theft in a building, tent or vessel used as a human dwelling or for the custody of property; of a means of transport used for goods or passengers; of an article or goods from such a means of transport; of an idol or icon in a place of worship; or of property of the Government or of a local authority: up to seven years and fine.

Section 306, theft by a clerk or servant. Theft by a clerk or servant, or a person employed in that capacity, of property in the possession of his master or employer: up to seven years and fine.

Section 307. Theft after preparation made for causing death, hurt or restraint in order to the committing of the theft.

Section 304, snatching, is new

The Penal Code had no such offence. Snatching a chain or a mobile telephone was theft, and if any force was used it might be robbery, but the intermediate case, a sudden grab that overpowers nothing, sat awkwardly between them.

Section 304 names it. The four verbs, seizes, secures, grabs or takes away, and the three adverbs, suddenly, quickly or forcibly, mark out the conduct.

Note what it does not require. No fear, no hurt and no wrongful restraint, which is what separates it from robbery under section 309.

The punishment is the same as for theft, three years, but with fine mandatory rather than alternative, and there is no community service proviso.

The proviso to section 303(2)

It is the only place in the Sanhita where community service is compulsory. The words are "shall ... be punished with community service".

Three conditions. The value of the stolen property must be less than five thousand rupees; the person must be convicted for the first time; and there must be a return of the value or a restoration of the property.

It is the clearest signal in the statute about petty theft, and it is worth naming in an answer about the Sanhita's new approach to punishment.

Distinctions that carry marks

A worked example

Ganesh takes a bicycle from outside a shop in Nagpur, meaning to sell it.

Work the five ingredients. He intended to take it dishonestly, which by section 2(7) means with the intention of causing wrongful loss to the owner. A bicycle is movable property. It was in the possession of the owner. There was no consent. And he moved it in order to the taking. Theft is complete.

He is caught after two metres. It makes no difference. The offence was complete on the first movement in order to the taking.

The bicycle is worth three thousand rupees and it is his first conviction. The proviso to section 303(2) applies: on return of the property or its value he shall be punished with community service.

Change the facts. Suppose he snatches a mobile telephone from a woman's hand as he passes on a motorcycle. That is section 304, snatching, three years and fine. If he had struck her or put her in fear of instant hurt in order to take it, it would be robbery under section 309.

Change them again. Suppose Ganesh is a shop assistant and takes stock from the shelves. That is section 306, theft by a clerk or servant of property in the possession of his master, seven years and fine. Note that section 3(3) puts the stock in the master's possession although the assistant physically held it.

Once more. Suppose he takes an idol from a temple. Section 305(d) applies, seven years and fine.

And a harder one. Suppose Ganesh cuts a teak tree standing on his neighbour's land and carries it away in one operation. A tree attached to the earth is not movable property, so it is not the subject of theft while it stands, by Explanation 1. But by Explanation 2 a moving effected by the same act that effects the severance may be a theft, so felling and removing in one act is theft.

What beginners get wrong

Thinking ownership matters. It does not. The ingredient is possession, and a person can steal property he owns.

Thinking the thief must get away. He need not. The slightest moving in order to the taking completes the offence.

Confusing theft with criminal breach of trust. If the accused was already lawfully in possession because he was entrusted, it is not theft, and the section's own illustration about the warehouse keeper makes the point.

Missing section 3(3). Property in the possession of a person's spouse, clerk or servant on that person's account is in that person's possession, which is what makes section 306 work.

Limits and criticism

The value threshold in the proviso is fixed in rupees. Five thousand rupees will lose its meaning with inflation, and the Sanhita provides no mechanism to revise it.

Snatching overlaps with both theft and robbery. A sudden grab that causes the victim to fear instant hurt is robbery; the same grab without fear is snatching; and the difference will often be a matter of the victim's evidence about how she felt.

Section 305 lists five aggravations without a principle. Theft of Government property is on the same footing as theft of an idol and theft from a bus, and it is not obvious why theft from a shop is not.

The minimum on a second conviction is severe for petty offending. One year of rigorous imprisonment applies to a second conviction under section 303 whatever the value taken, which sits oddly beside the community service proviso for a first offence.

Quick revision

Section 303(1), five ingredients. Dishonest intention; movable property; out of another's possession; without consent; moving in order to the taking.

Five Explanations. Attached to the earth; severance and moving by one act; removing an obstacle or separating; causing an animal to move; consent express or implied, by the possessor or a person authorised.

Section 303(2). Three years, or fine, or both. Second conviction: one to five years rigorous, and fine. Proviso: value under five thousand rupees, first conviction, on restitution, community service.

Section 304. Snatching: suddenly, quickly or forcibly seizing, securing, grabbing or taking away: three years and fine. New.

Section 305, five clauses. Dwelling or place of custody; a means of transport; goods from a means of transport; an idol or icon in a place of worship; Government or local authority property. Seven years and fine.

Section 306. Theft by a clerk or servant of the master's property: seven years and fine.

Section 307. Theft after preparation for causing death, hurt or restraint.

Test yourself

1. State the five ingredients of theft. A dishonest intention to take; movable property; out of the possession of another person; without that person's consent; and moving the property in order to such taking.

2. Can a person steal his own property? Yes. The ingredient is possession, not ownership. The section's illustration is an owner who takes back a watch lawfully retained by a repairer as security, intending to deprive him of that security.

3. What is new in section 304, and how does it differ from robbery? Snatching is new: a sudden, quick or forcible seizing, securing, grabbing or taking away in order to commit theft. It differs from robbery because it requires no death, hurt, wrongful restraint or fear of instant harm.

4. When must a court order community service for theft? Under the proviso to section 303(2), where the value of the stolen property is less than five thousand rupees, the person is convicted for the first time, and there is a return of the value or a restoration of the property.

5. A warehouse keeper sells goods entrusted to him. Is that theft? No. The goods were in his possession, so nothing was taken out of the owner's possession. The section's illustration says he may have committed criminal breach of trust instead.