A in good faith, believing property belonging to Z to be A’s own property, takes that property out of Z’s possession. Has A committed the offence of theft? Give reasons in support of your answer.

Question: A in good faith, believing property belonging to Z to be A’s own property, takes that property out of Z’s possession. Has A committed the offence of theft? Give reasons in support of your answer. [UPCJ 2012, MPCJ 2012, RJS. 1984]

Find the answer to the mains question only on Legal Bites. [A in good faith, believing property belonging to Z to be A’s own property, takes that property out of Z’s possession. Has A committed the offence of theft? Give reasons in support of your answer.]

Answer

Section 378, IPC defines the offence of Theft as:

“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.”

In order to constitute the offence of theft, the following five elements are essential:

1. it should be a movable property;
2. in the possession of anyone;
3. a dishonest intention to take it out of that person’s possession;
4. without his consent; and
5. moving in order to such taking

The present facts of the case are borrowed from Illustration (p) to section 378: A, in good faith, believing property belonging to Z to be A’s own property, takes that property out of B’s possession. Here, as A does not take dishonestly, he does not commit theft.

The intention is the gist of the offence. It is the intention of the taker at the time when he removes the article that determines whether the act is theft or not. The intention to take dishonestly exists when the taker intends to cause ‘wrongful gain’ to one person and ‘wrongful loss’ to another. Wrongful gain or wrongful loss must be involved in dishonesty.

A charge of theft of a bag as against the principal, vice-principal and another student of a commerce college in Bombay by an ex-student of the same college on a college day function was quashed by the Bombay High Court in BR Rairikar v. Uday Dhalchandra Wavikar [(1981) Cr LJ 1613 (Bom).] on the ground that there was no evidence of dishonest intention. In this case, the complainant ex-students bag was removed from him and handed over to the principal by another student.

The principal and vice-principal suspecting that it contained objectionable leaflets of the kind hurled in the college hall on the college day, informed the complainant’s father that the bag was in the college office and the principal would like to see him discuss matters. The principal refused to hand over the bag to the complainant, but later handed it over to the police. On a complaint by the ex-student, as against the principal and others, the Bombay High Court held that there was no dishonest intention in removing the bag and the charge of theft was quashed.

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