Monday, June 24, 2024

𝗝𝘂𝗱𝗶𝗰𝗶𝗮𝗹𝗗𝗿𝗲𝗮𝗺™

𝙰𝙵𝙵𝙾𝚁𝙳𝙰𝙱𝙻𝙴 & 𝙰𝙲𝙲𝙴𝚂𝚂𝙸𝙱𝙻𝙴

IPCMODEL ANSWER

THEFT

Explain briefly the offence of theft given under section 378 of Indian Penal Code, 1860.

According to our Indian Legal System, every person has right to property and if any person owns any property, then along with the right of ownership, he acquires various other rights like right to possession, right to alienate the property etc. These rights are not strict to immovable property only but also applicable upon movable property. So, if any person who is entitled to have the possession of movable property, he can protect his right and no other person can infringe this right of former person.
If any person tries to infringe the right of that person who is legally entitled to have the possession of movable property and takes that movable property from the possession of latter person, then in such a case, the former person can be held liable for having committed the offence of theft given under section 378 of Indian Penal Code, 1860. The legislature has enacted this law just to protect the right of possession of a person.

Section 378 of Indian Penal Code, 1860, deals with the provisions of theft and according to this section if any person with dishonest intention takes the movable property out of the possession of another person without his consent, then in such a case, that former person can be held liable for having committed the offence of theft given under section 378 of Indian Penal Code, 1860.

According to the provisions of section 378 of Indian Penal Code, 1860, there are four main ingredients of theft given under section 378 of Indian Penal Code, 1860, and these ingredients are as follows: –
• Dishonest intention to take the property
• Property must be movable property
• Property must be taken out of the possession of another person
• It must be taken without getting the consent of another person

1. Dishonest Intention: – According to the provisions of Indian Legal System, in case of theft, it is necessary for the prosecution to prove dishonest intention of the accused if he wants to secure punishment to the offender. If prosecution fails to prove the dishonest intention, then in such a case, he cannot secure the punishment to the accused. Dishonest intention is one of the main ingredients of theft and if the person does not take the property out of the possession of another person with dishonest intention, then in such a case, he cannot be held liable for having committed the offence of theft given under section 378 of Indian Penal Code, 1860.

In the leading case of Vithal vs. State of Maharashtra (Bom. 1982), the Hon’ble Bombay High Court held that a person who has been charged for having committed the offence of theft given under section 378 of Indian Penal Code, 1860, can be held liable only if he had taken the property with dishonest intention. If the prosecution fails to prove dishonest intention, then accused cannot be held liable for having committed the offence of theft given under section 378 of Indian Penal Code, 1860.

2. Property must be movable property: – According to the provisions of section 378 of Indian Penal Code, 1860, an accused can be held liable for having committed the offence of theft only if he takes the movable property out of the possession of any person. If the property does not fall under the category of movable property, then in such a case, an accused cannot be held liable for having committed the offence of theft.
Section 22 of Indian Penal Code, 1860, defines the term ‘movable property’ and according to this section this term includes corporeal property of every description except
• Land
• Things attached to the earth
• Things permanently fastened to anything which is attached to the earth

3. Property must be taken out of the possession of another person: – According to the provisions of section 378 of Indian Penal Code, 1860, to held the accused liable for having committed the offence of theft, it is necessary for the prosecution to prove that he has taken the movable property out of the possession of another person. It does not matter whether that person has actual possession of that property or constructive possession of that movable property. But if at the time of taking away the property was under the possession of the concerned person then in such a case, the accused will be held liable for having committed the offence of theft given under section 378 of Indian Penal Code, 1860.

In the leading case of Ram Ekbal Rai vs. Jaldhari Pande (SC 1972), the Hon’ble court held that if the movable property is under the possession of any person and any third person takes that property out of the possession of former person without taking his consent and with dishonest intention then in such a case, the latter person will be held liable for having committed the offence of theft given under section 378 of Indian Penal Code, 1860.

4. Property must be taken without getting the consent of another person: – According to the provisions of section 378 of Indian Penal Code, 1860, consent of the person who has possession of property matters a lot. If the accused takes the movable property out of the possession of another person with his consent, then in such a case, the former person will not be held liable for having committed the offence of theft given under section 378 of Indian Penal Code, 1860, but if he takes the property without the consent of another person then he can be held liable for having committed the offence of theft given under section 378 of Indian Penal Code, 1860.

Section 378 of Indian Penal Code, 1860, talks about the consent of that person who has possession of movable property because this section protects the right of possession nor the right of ownership. So, if a person has lawful possession of a movable property and any other person without getting his consent takes that property out of his possession then in such a case, the former person has right to lodge a complaint against latter person and claim that property back from him.

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