THEFT : A NEW APPROACH UNDER BHARATIYA NYAYA SANHITA
Written by - Shalini Bishi
INTRODUCTION
The Indian Penal code replaced by Bharatiya nyaya sanhita, 2023.But some of the concept of ipc and bns are still same . The concept of theft defined under section 378 in ipc, and in BNS it defined under section 303 . In this article we will give more focus on concept of theft , and it's important ingredient and how and in what manner , the theft can be committed , which is not defined under either ipc nor business , but we can interpret through the illustration .
THEFT
According to sec 303 corresponds to sec 378 of IPC"Whoever, intending to take dishonestly any movable property 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."
The above definition contains some important word which are ingredient of theft. The necessary ingredients should be fulfilled for commission of theft .
Ingredient
1 . Dishonest intention
2. the stolen property should be movable.
3. The property should be moved from possession of any person
4. move without consent
1 . DISHONEST INTENTION
The intention must be malafide , here The intention of the offender is important to determine whether the act is theft or not .
ILLUSTRATION
A takes an article belonging to Z out of Z's possession without Z's consent, with the intention of keeping it until he obtains money from Z as a reward for its restoration. Here A takes dishonestly; A has therefore committed theft.
Here in the above Illustration , A has the mens rea to get reward by illegal means , so he commit theft but at the same time in another Illustration
A, being on friendly terms with Z, goes into Z's library in Z's absence, and takes away a book without Z's express consent for the purpose merely of reading it, and with the intention of returning it. Here, it is probable that A may have conceived that he had Z's implied consent to use Z's book. If this was A's impression, A has not committed theft.
Here the intention of the A is to return the book, and here the intention is not wrong.
2. THE STOLEN PROPERTY SHOULD BE MOVABLE
The word movable defined under section 2(21) of BNS as well as Transfer of property act .Movable property means Land,Things attached to the earth Permanently fastened to anything which is attached to earth We can consider these above as movable property, and if a person commit theft which come under the purview of above 3 point come under theft.
FOR EXAMPLE
A cuts down a tree on Z's ground, with the intention of dishonestly taking the tree out of Z's possession without Z's consent. Here, as soon as A has severed the tree in order to such taking, he has committed theft.
3. THE PROPERTY SHOULD BE MOVED FROM POSSESSION OF of ANY PERSON
In theft the concept of possession play an important role , so in Jurisprudence possession also called as the ninety point of law . here concept possession have Two important doctrine given by savigny.
CORPUS- physical control over a property
ANIMUS - mental control or intention over a property This two concept are important to know whether the theft is committed or not .
AN EXAMPLE OF CORPUS
A finds a ring belonging to Z on a table in the house which Z occupies. Here the ring is in Z's possession, and if A dishonestly removes it, A commits theft. Here A have the physical control over the ring.
AN EXAMPLE OF ANIMUS
A sees a ring belonging to Z lying on a table in Z's house. Not venturing to misappropriate the ring immediately for fear of search and detection, A hides the ring in a place where it is highly improbable that it will ever be found by Z, with the intention of taking the ring from the hiding place and selling it when the loss is forgotten. Here A, at the time of first moving the ring, commits theft.
Here A Don't have the physical control over the property but have the mental elements so this also come under theft. Here
"A QUESTION ARISE THAT WHETHER A PERSON IS LIABLE UNDER THEFT WITHOUT HAVE THE POSSESSION OF THE PROPERTY?"
Here the answer will be- yes , from the above Illustration we can easily find out that physical control is not necessary only mental condition or elements (animus) I sufficient to commit theft.
4. MOVE PROPERTY WITHOUT CONSENT
If a person take the property with the concept then it will be a request or permission, if the person without consent take the property then it will be theft.
FOR EXAMPLE
A have the possession over jewellery and B without consent move the property with the intention of not returning it , it comes under theft.
HERE A QUESTION AROSE THAT WHETHER A PERSON COMMIT THEFT OF HIS OWN PROPERTY?
Yes, we can understand through a ILLUSTRATION
A owes money to Z for repairing the watch, and if Z retains the watch lawfully as a security for the debt, and A takes the watch out of Z's possession, with the intention of depriving Z of the property as a security for his debt, he commits theft, inasmuch as he takes it dishonestly.Here the owner of the watch is A but at the time of theft the possession of the property on Z, Z have both animus and corpus ,so this also come under theft.
PUNISHMENT
First conviction- Imprisonment any description which may extend to 3 year or fine or both
Subsequent conviction- rigorous imprisonment for a term which shall not be less than one year but which may extend to five years and with fine; that in cases of theft where the value of the stolen property is less than five thousand rupees, and a person is convicted for the first time, shall upon return of the value of property or restoration of the stolen property, shall be punished with community service.
CONCLUSION
From the above discussion we can conclude that theft is the mixture of motive , opportunity and means. And theft can be committed of own property or property of another.
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