Theft, Robbery, Extortion and Dacoity – an analysis

This article was written by Nikhil Gangai a student of SYMBIOSIS LAW SCHOOL, HYDERABAD

“When a man is denied the right to live the life he believes in, he has no choice but to become an outlaw.” 

― Nelson Mandela[1]

Chapter XVII of the Indian Penal Code, 1860 mandates over the ‘Offenses against Property’. Theft, Robbery, Extortion and Dacoity are one of the most common offenses committed in India. All of them are compoundable to each other and are differentiated by a thin line of difference.

Section 378

Section 378 defines the crime of theft. It also provides explanations and illustrations so that the section is better construed.

Theft, as described in the IPC is defined 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.”

Explanation 1: A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.

Explanation 2: A moving effected by the same act which affects the severance may be a theft.

Explanation 3: A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by sepa­rating it from any other thing, as well as by actually moving it.

Explanation 4: A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.

Explanation 5: The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied.

Section 379

Section 379 describes the punishment for an act of theft committed as described under Section 378 of the Indian Penal Code, 1860.

The punishment for theft, is as described below,

“Whoever commits theft shall be pun­ished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

Therefore, the ingredients required to constitute the offence of theft are as follows[2]:

1. Dishonest intention to take property.
2. The property must be movable.
3. It should be taken out of the possession of another person.
4. It should be taken without the consent of that person.
5. There must be some moving of the property in order to accomplish the taking of it.

As it is at the core of every crime, theft also requires the intention, or the mens rea, to take a property dishonestly from the possession of another or to cause wrongful loss to such intended. This intention being mala fide is very necessary. If such an intention is bona fide then, the case has to be looked into closely before adjudging it to be theft as described under Section 378. In the case of Nobin Chunder Holder[3], the accused, acting bona fide in the interests of his employers finding a party of fishermen poaching on his master’s fisheries, took charge of the nets and retained possession of them, pending the orders of his employers, it was held that he is not guilty of theft. It was also held in the case of Ram Ratan Alias Ratan Ahir & Anr. vs The State Of Bihar And Anr[4] that, for the crime of theft, a mala fide intention is a must. Without a mala fide intention, a person cannot be convicted under Section 378.

It has been described in the Explanations 1 and 2 attached with Section 378 that, anything attached to the land may become movable property if it is severed from the earth and also that the act of severance is in itself an act of theft. Therefore, a thief, who severs something and takes it away, is put in exactly the same position as if he carried away what was already severed. In Dunyapat’ Case[5], it was held that removal of a man’s trees blown down by a storm amounts to a theft. But, in Balos’ case[6], it was held that a sale of trees belonging to others and not cut down at the time of sale does not constitute theft. The most important thing in this is that it is not necessary that the thing stolen must be of value.

In the case of Hossenee vs. Rajkrishna that, the property that is stolen should be in the possession of the prosecutor so as to constitute an offence of theft.[7] Any property taken that earlier belonged to a dead man, and therefore nobody’s possession is not the subject of theft but of criminal misappropriation. Even a transfer that is transient in nature is sufficient to constitute theft under section 378[8].

The thing stolen must have been taken without the consent of the person in the possession of it. Explanation 5 says that a consent can be express or implied and that consent can be given by any person who is in possession of that thing or has the relevant authority to do so. It was held in the case of Parshottam Mahadev Patharphod vs State[9] that, consent obtained by false representation will not be considered a valid consent.

This offence of theft elaborated under Section 378 of IPC is completed when there is a dishonest moving of the body. Even if a thing is removed from its original place and is displaced, it will amount to moving the property, amounting to theft. This need not require that the thing be carried away. It just requires the thing to be moved.

Section 383 defines what Extortion is.

Section 383

“Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishon­estly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits ‘extor­tion’.”

Section 384

Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

The basic requirements for an offence to be called “extortion” are,

1. Puts any person in fear of any injury:

According to Ramjee Singh vs. State of Bihar[10], ‘fear’ should be of such a nature that it unsettles the mind of the person on whom it operates, and takes from his acts the element of free voluntary action which alone constitutes consent.

A threat of criminal charge also amounts to extortion. It is immaterial if the charge is true or false, mere threat is enough. The threat needn’t even be to accuse in front of a judicial magistrate, a threat to charge him/her before any third person is more than enough.[11]

2. Dishonestly induce the person….to deliver to any person any property:

To constitute the offence of extortion, the delivery by a person so put in fear is quintessential. It was held in the case of Labhshanker Keshavji & Anr. Vs. State[12] that the offence of extortion as defined under Section 383 is not complete as long as there is actual possession of the property by the person put in fear by them.

Section 390

In all robbery there is either theft or extortion.

When theft is robbery:

Theft is “robbery” if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.

When extortion is robbery:

Extortion is “robbery” if the offend­er, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.

Explanation: The offender is said to be present if he is suffi­ciently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.

Theft, Extortion and Robbery:

Theft, or extortion when caused with violence causing death of fear of death, hurt or wrongful restraint constitutes the offence of robbery. Therefore, applying common rationality, if there is no theft, there is no robbery. Attempt to commit violence is enough, it is not necessary that violence should be committed.

Section 391

“When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit ‘dacoity’.”

The only difference between robbery and dacoity is that dacoity is robbery committed by five or more people. This is an aggravated form of robbery. The offence of robbery is aggravated by the number of offenders present at the scene of offence.

Dacoity is the only offence that has been divided by the legislature into 4 stages; it has made every stage punishable separately. When five or more persons assemble for the purpose of committing a dacoity, each of them is punishable under Section 402 merely on the ground of joining the assembly. Another stage is that of preparation and accordingly, if anyone makes a preparation to commit dacoity, he is liable to be punished under s.399.The third stage is the attempting to commit and the fourth is the actual commission of the crime. Also, attempt to commit dacoity is also considered as dacoity.

[1] Nelson Rolihlahla Mandela was a South African anti-apartheid revolutionary, politician, and philanthropist, who served as President of South Africa from 1994 to 1999.

[2] Pg. 810, The Indian Penal Code, LexisNexis Butterworth Wadhwa, 33^rd Edition, Reprint 2012.

[3] (1866) 6 WR (Cr) 79

[4] 1965 AIR 926, 1965 SCR (1) 293

[5] (1919) 42 All 53

[6] (1882) 1 Weir 419

[7] (1873) 20 WR (Cr) 80; Rabi Kumar Agarwal vs. State of West Bengal, 2003 CrLJ 1342 (Cal); Sashibusan Giri vs. Kalakar Moharita, 2003 CrLJ 1065; Lila Satyanaran Pd vs. Shiv Nandan Singh, 2003 CrLJ NOC 34.

[8] State of Maharashtra vs. Vishwanath, AIR 1979 SC 1825

[9] (1962) 64 Bom LR 788

[10] 1987 Cr LJ 137

[11] Abdulvahab Abdulmajib Shaikh vs. State of Gujrat, (2007) 4 SCC

[12] AIR 1955 Sau 42