Law and You > Criminal Laws > Indian Penal Code > Aggravated Forms of Theft (Ss. 381 and 382 IPC)

Theft is a criminal offense under the Indian Penal Code (IPC) and involves taking someone else’s movable property without their consent with a dishonest intention. Several elements must be present for an act to be considered theft under the IPC. Section 378 IPC defines the offence of theft. Section 379 specifies punishment for theft. Let us discuss aggravated forms of theft defined under IPC.

Theft in human dwelling in the form of building, tent, or vessel is punishable under section 380. The object of this Section is to give greater security to property deposited in a house, tent or vessel. Section 381 provides punishment for theft committed by a clerk or servant of property in possession of the master.

Section 378 IPC defines theft as “Whoever, intending to take dishonestly any moveable 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.:

Essential Ingredients of Theft:

• There must be dishonest intention to take property;
• The property must be movable;
• The Property should be taken out of possession of another person;
• It should be taken without consent of that person; and
• There should be the taking of the property.

Aggravated Forms of Theft

Section 380 and 381 deals with the aggravated forms of theft.

Section 380: Theft in dwelling-house, etc:

The section says that whoever commits theft in any building, tent or vessel which is used as a human dwelling or for custody of property, shall be punished with simple or rigorous imprisonment for a term extending up to seven years, and shall also be liable to fine.

Classification of Offence:

The offence under this Section is cognizable, non-bailable, non-compoundable and triable by any magistrate

Essential Ingredients:

1. That accused committed theft;
2. That such theft was committed in any building, tent or vessel; and
3. That such building, tent or vessel was used as a human dwelling or used for the custody of property.

The word ‘building’ means a permanent edifice of some kind. The use of this word along with the words ‘tent’ and ‘vessel’ goes on to show that there must be some kind of a structure intending some kind of protection to the persons living there or for the property placed there for custody. Section 48 of IPC defines The word “vessel” as anything made for the conveyance by water of human beings or of property.

In Wali Mohammed v. Emperor, AIR 1929 Sind 17 case, A building within the meaning of Section 380 and 442, includes a structure whether covered or not and made of any material whatsoever. The limitations imposed by Sections 442 and 380 are not as to the nature of their structures or the materials of which they are made but to the use to which such structures are intended to be put. A Courtyard attached to living rooms walled in on all sides and provided by a door leading to the street come within the ambit of definition of the building of Section 380.

In State of Punjab v. Nihal Singh (1971) 73 Punj LR 440 case, the Court opined that  IPC means building, tent or vessel, in which a person lives, remains or hinges whether permanently or temporarily. Accordingly, a railway waiting room is a building used as a human dwelling.

In Krishna K. Reddy v. R. D. Bhoyar, 2008 CrLJ 685 (Bom) case, the accused employees of the bank after house trespass seized articles belonging to the complainants as co-mortgagors. There was no intention on part of accused to commit offences under Section 380/448 and evidence on record disclosed that seizure was made in good faith and on bona fide belief. The Court held that the acquittal by the lower court was proper.

In Bablu alias Mahendra v. State of Madhya Pradesh 2009 CrLJ 1856 (MP) case the Court held that merely on the basis of having possession of some stolen articles, accused cannot be held guilty of offences punishable under Section 450 and under Section 380.

K. E. Lokesha v. State of Karnataka 2012 CrLJ 2120 (Kar) case the Court held that offence under Section 454 also includes Section 380. In view of the conviction under Section 454 of the IPC, a separate conviction for the offence under Section 380 of IPC is not needed.

What Prosecution Should Prove?

1. There was a movable property
2. The movable property under discussion is in possession of a person other than the accused;
3. There was an intention to move and take some movable property;
4. The accused moved and took out the property out of possession of the possessor from building, tent or vessel.
5. Such building, tent or vessel was used as a human dwelling or used for the custody of property.
6. The accused did it dishonestly to obtain wrongful gain to himself or wrongful loss to another.
7. The property was moved and took out without the consent from the possessor.

Punishment:

Section 380 says that whoever commits theft in any building, tent or vessel which is used as a human dwelling or for custody of property, shall be punished with simple or rigorous imprisonment for a term extending up to seven years, and shall also be liable to fine.

Note that the phrase “rigorous imprisonment for a term extending up to seven years, and shall also be liable to fine. “. It means the accused if convicted can be awarded of rigorous inprisonment of maximum 7 years and fine. Imprisonment can be less than 7 years also.

Section 381: Theft by clerk or servant of property in possession of master:

It says that whoever either being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft of property in possession of his master or employer, shall be punished with simple or rigorous imprisonment for a term extending up to seven years, and shall also be liable to fine.

Classification of Offence:

The offence under this section is cognizable, non-bailable and compoundable with the permission of the Court before which any prosecution of such offence is pending, and is triable by any magistrate

Essential Ingredients:

1. That the accused was a clerk or servant or was employed in such a capacity;
2. That he committed that theft in respect of any property; and
3. That such property was in possession of his master or employer.

In Vallabhram v. Emperor AIR 1926 Bom 122 case, a clerk took official papers out of the possession of another person who himself is another clerk of Tahsil office without Mamlatdar’s consent with a view to show to the lawyer of one of the parties to the case; the Court held that it is theft by the clerk and is punishable under article 381.

What Prosecution Should Prove?

1. There was a movable property;
2. The Accused was a clerk or servant or was employed in such a capacity;
3. The movable property under discussion is in possession of the master or employer of the accused;
4. There was an intention to move and take some movable property;
5. The accused moved and took out the property out of possession of the possessor from the possession of his master or employer.
6. Such building, tent or vessel was used as a human dwelling or used for the custody of property.
7. The accused did it dishonestly to obtain wrongful gain to himself or wrongful loss to another.
8. The property was moved and took out without the consent from the possessor.

Punishment:

Section 381 says that whoever either being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft of property in possession of his master or employer, shall be punished with simple or rigorous imprisonment for a term extending up to seven years, and shall also be liable to fine.

Note that the phrase “simple or rigorous imprisonment for a term extending up to seven years, and shall also be liable to fine. “. It means the accused if convicted can be awarded of simple or rigorous imprisonment of maximum 7 years and fine. Imprisonment can be less than 7 years also.

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