LAW OF CRIMES PROJECT ON: OFFENCE OF THEFT, EXTORTION, ROBBERY AND DACOITY.
SUBMITTED BY: NIDHI CHITKARA AND URVASHI BHATIA TO: Ms. UPMA GAUTAM
ROLL NO: 03016503813 03916503813 CLASS :SEC A 2nd YEAR IV SEM
Theft - Section 378 of IPC INTRODUCTION
In common usage, theft is the taking of another person's property without that person's permission or consent with the intent to deprive the rightful owner of it. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud. In some jurisdictions, theft is considered to be synonymous with larceny; in others, theft has replaced larceny. According to S 378 of Indian Penal Code, 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.
Punishment of theft- Section 379
For the offence of theft there is punishment of imprisonment of either description which may extend to 3 years, with fine, or both according to the Indian Penal Code.
CONTENT ANALYSIS
Section 378 of IPC reads: 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.
LEADING CASE LAW In a leading decision of KN Mehra v. State of Rajasthan.1 1 AIR 1957 SC 369,(1957) Cr LJ 552 (SC)
FACTS
The alleged theft was of an aircraft, which belonged to the government (Indian Air Force Academy).
Two youngsters, Mehra and Phillips, were cadets on training in the Indian Air Force at Jodhpur. Phillips was discharged from the Academy on 13 May 1952 for misconduct.
On 14 May 1952, he was due to leave Jodhpur by train.
His friend Mehra was due for flight in a Dakota, as part of his training along with one Om Prakash, a flying cadet.
The authorised time to take off flight was between 6 am and 6.30 am on the morning of 14th May.
ISSUES
Mehra and Phillips took off, 1.
not a Dakota but a Harvard T-22,
2.
before the prescribed time at 5 am
3.
without authorisation and
4.
without observing any of the formalities, which were prerequisites for aircraft flight.
On the forenoon of the same day, they landed at a place in Pakistan about 100 miles away from the Indo-Pakistan border.
On 16 May 1952 at 7 am, both of them met the Indian Commissioner in Pakistan at Karachi, and informed him that they had lost their way and force-landed in a field and that they had left the plane there. They requested his help to go back to Delhi. The Indian High Commissioner arranged for both of them to be sent back to Delhi in another plane.
While they were on their way to Delhi, the plane stopped at Jodhpur and they were arrested and prosecuted for the offence of theft.
One of the main contentions of the accused was that if they had the inclination to take the aircraft to Pakistan, they would not have contacted the Indian High Commissioner at Karachi later. But the prosecution succeeded in proving that this
apparent innocent move did not necessarily negative their intention at the time of taking off. It may be that after reaching Pakistan only, the impracticability of their scheme to get employment in Pakistan dawned upon them and they gave it up. It was enough to constitute the offence that they had the dishonest intention at the commencement of the journey. The fact that they took off Harvard T22 plane rather than the allowed Dakota, and left India at 5 am instead of the scheduled time of 6 am, without waiting for Om Prakash, and that they also refused to respond to the wireless messages from Indian aerodrome authorities at 11 am, showed that they had the dishonest intention to take off a Harvard T-22 plane.
INGREDIENTS The offence of theft under s 378 can be analysed and hence the essential elements to constitute theft are as follows. 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. A moving in order to such taking.
MOVABLE PROPERTY
Section 22 of IPC defines theft as including ‘corporeal property of every description except land and things attached to the earth, or permanently fastened to anything which is attached to the earth’
Any part of the earth whether it be stones, or clay or sand or any other component when severed from the earth is moveable property and is capable of being the subject of theft.
As per the Explanations 1 and 2 attached to Section 378 of IPC, things attached to the land may become movable property by severance from the earth, and that the act of severance may of itself be theft.
In Suri Venkatappayya Sastri, Agent vs Madula Venkanna2 The only question is whether the stones in this case are "moveable property It was held in the case that stones when quarried and carried away are "things severed from the earth" and are "moveable property" and as such are capable of being the subject of theft. Before they were quarried out they formed part of "the earth," and as such they were not moveable property, but as soon as they were quarried out they were "severed from the earth" and became "moveable property. In the case of Bandrappa vs State By Gadigenur Police3 It is very clear that as soon as petitioner has severed the iron ore from the land in order to transport the same, it is to be said that he has committed a theft. In the case of The Queen v. Tamma Ghantaya4, the Court (Turner, C.J. and Kernan, J.) referring to salt formed spontaneously in a swamp said " We cannot 2 (1904) 14 MLJ 155 3 4 I.L.R. 4 M. 228
distinguish this case from theft of wood in a reserved forest, except that salt is actually a part of the soil, while trees are not; yet things immoveable become moveable by severance and this would apply to severed parts of the soil, e.g., stone quarried, minerals, iron or salt collected, as well as timber which has grown, or edifices which have been erected on the land."
A house cannot be the subject of theft, but there may be theft of its materials.
Can Data Theft be covered under IPC?
Since Section 378 I.P.C., only refers to “Movable Property” i.e. Corporeal Property, and Data by itself is intangible, it is not covered under the definition of "Theft”. However, if Data is stored in a medium (CD, Floppy etc.) and such medium is stolen, it would be covered under the definition of ‘Theft’, since the medium is a movable property. But, if Data is transmitted electronically, i.e., in intangible form, it would not specifically constitute theft under the IPC. “Data”, in its intangible form, can at best be put at par with electricity With regard to Electricity, The Supreme Court has held in Avtar Singh vs State of Punjab,5 that 5 AIR 1956 SC 666.
electricity cannot be considered to be a movable property and that s 378 by itself would not include a theft of electricity. I t has also been held that dishonest abstraction of electricity mentioned in the Indian Electricity Act 1910, is not an offence under the IPC, though it is an offence under s 39 of the Electricity Act.
ANIMALS
Animals can become the subject of theft, for they can be classified as movables.
In case of wild animals ,they are ferae naturae, there can be no absolute property.
In case of Abandoned animals, they cannot said to be in the possession of anyone
In a case, when a man buried the carcass of a bullock suspecting it to have been poisoned and another person dug it up and carried it away,it was held that no theft was committed because the property and property in it were abandoned. The removal of animals grazing in open lands where it had been left by the owner is theft. But leading the animals to the pound is not theft. However, if a person, the owner or a stranger, removes cattle from pound where they are secured,
is the only movable without paying the levied fees, he is guilty of theft as he deprives the poundkeeper of his legitimate fees.
HUMAN CORPSE-Sir James Stephen says that this object known to him which is incapable of being a property.
Human body whether living or dead (except bodies, or portions thereof, or mummies, preserved in museums and scientific institutions) is not movable property.
FISH
Fish in running waters, such as rivers, and canals and in the lakes and seas are ferae naturae and cannot be the subject of theft.
So also fish in open irrigation tanks, or tanks not enclosed on all sides, where even the right of fishing has been let out to a licensee are considered as ferae naturae and not subject of theft.
In the case of Govindha Majhi v. Arobinda Kar,6 the accused has caught fish from the portion of a tidal and navigable river licensed out to the complainant, he was held not guilty of theft based on the principles well stated in Krishna Reddy v Muniappa Reddy7: As long as the water flows in and out of the pond, thereby enabling the fishes to enter and leave it, the fishes are free and in a state of nature; and so no more belong to the owner but when once the water has fallen to such a level that fishes cannot leave it, then they are trapped and consequently in the possession of the owner of the pond. That being so, any person who takes fish from that pond without the owners’ consent with the intention to cause him loss necessarily commits theft. Similarly, in Queen Empress v. Shaik Adam8, it was held that the tank from which the fish were taken, was apparently an enclosed tank belonging to the municipality, the fish were restrained of their natural liberty and liable to be taken at any time according to the pleasure of the owner and were, therefore, subjects of theft. If the fish were unable to escape from the tank, they were practically in the power and dominance of the prosecutor. 6 AIR 1950 Ori 106. 7 AIR 1943 Mad 34. 8 (1886) ILR 10 Bom 193
In Bairagi Rout v Brahmananda Das9, it was held that when during the rainy season fish escapes from one plot to another demarcated by ridges of small height and are merged under the water, it cannot be said that fish is the subject matter of theft.
In Chandi Kumar Das v Abanidhar Roy10, It was held that the Fish in their free state are regarded as ferae naturae, but they are said to be in the possession of a person who has possession of any expanse of water such as a tank, where they live but from where they cannot escape. Fishes are also regarded as being in the possession of a person who owns an exclusive right to catch them in a particular spot known as a fishery but only within that spot. There can thus be theft of fish from a tank which belongs to another and is in his possession, if the offender catches them without the consent of the owner and without any bona fide claim of right. Water It was held in Sheikh Arif11 case that the water running freely from a river through a channel made
9 (1970) Cr LJ 638 (Ori). 10 AIR 1965 SC 585 11 (1908) ILR 35 Cal 437.
and maintained by a person is not a subject matter of theft. In Re Chockalingam Pillai12 case, it was held that running water in irrigation canals is the subject of theft. The distinguishing character in making water as a subject matter of theft is possession. In Mahadeo Prasad case13, it was held that water when conveyed in pipes is reduced into possession of the person and thereby it becomes the subject matter of theft.
Cooking gas or water passing through pipeline can be a subject of theft, when the accused fixed a pipe in the main line just before the meter, to avoid payment.
Idols from the temples, paintings from museums and other public or private places are subject of theft.
OUT OF POSSESSION
The movable property which is subject of theft must be in the possession of the prosecutor.
The word possession is not defined in the IPC, though its nature in one aspect is indicated in Section 27, wherein it is said that “….When property is in the possession of a person’s wife,
12 (1913) Cr LJ 131 (Mad). 13 (1923) ILR 45 All 680.
clerk or servant, on account of that person, it is in that person’s possession within the meaning of this code.
Explanation:—
Salmond describes possession, in fact, “as a relationship between a person and a thing the test for determining whether a person is in possession of anything is whether he is in general control of it”.
Possession exists in one whenever he has physical control, whether rightful or wrongful, over a corporeal thing, possession is entirely distinct from property and either may exist without the other.
Thus, when an article is stolen though the thief has possession, the owner retains the property.
A movable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need.
Possession may be de facto or de jure. The former is mere custody. A servant has only mere custody of the articles which belongs to
his master. For example, A, the master of a house gives a dinner party; the plate and other things on the table are in his possession, though from time to time they are in the custody of his guests or servants.
CONSTRUCTIVE POSSESSION
In certain circumstances, a person who has no actual physical control over a thing will be deemed to have possession in the eye of law, which is called constructive possession. This is also called de jure possession or possession in law. For example, whenever he has entrusted the care of a thing to his servant, the physical control of the servant does not amount to possession as against his master, but merely to custody and as against other persons, it may amount to possession.
JOINT POSSESSION
Where there are several joint owners in joint possession, and any one of them, dishonestly takes exclusive possession, he would be guilty of theft.14 A co-owner of movable property with another, whose share is defined, can be guilty of theft, if he removes the joint property without consent of the 14 Virankutty v Chiyamu (1884) ILR 7 Mad 55.
co-owner.15 Similarly, if a coparcener dishonestly lakes the separate property of another coparcener, he will be guilty of theft.16
Mere custody will not amount to possession
This principle is expressly recognised in s 27, IPC. So, where a lady who wanted a railway ticket, handed the money to a stranger, who was near to the window of the ticket office, that he might procure a ticket for her, and he ran away with the money, this was held to be theft, as she never parted with the dominion over the money and merely used his hand in place of her own. 17
Temporary deprivation or Dispossession is also theft
In Pyare Lal Bhargawa v. State of Rajasthan,18 the accused was a superintendent in a government office. At the instance of somebody, he got a file from the secretariat through the clerk and took the file to his house for a day and made it available to a 15 Ramsharangat Singh v State of Bihar (1966) Cr LJ 856. 16 Sita Ram Rai (1880) ILR 3 All 181. 17 R v Thompson 32 LJ (MC) 50. 18 AIR 1963 SC 1094.
person to facilitate the removal of some papers and the insertion of some. Thereafter, the file was replaced. The question before the Supreme Court was whether the act amounted to theft. The Supreme Court held that to commit theft, one need not take movable property permanently out of the possession of another, with the intention not to return it to him. It would satisfy the definition if he took any movable property out of the possession of another person, though he intended to return it later. When the file was unlawfully taken away from the department, he deprived the department of the possession of the file and caused wrongful loss to the department. So, it was held that it amounted to an offence under s 378, IPC. The Supreme Court held that the transfer of movable property without consent of the person in possession need not be permanent or for a considerable length of time nor is it necessary that the property should be found in possession of the accused. Even a transient transfer of possession is sufficient to meet the requisites of theft.
DISHONEST INTENTION
Intention is the gist of the offence.
It is the intention of the taker at the time when he removes the article that determined whether the act is theft or not.
Section 24 of IPC says “whoever does anything
with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing dishonestly”.
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.19
Section 23 of IPC reads as follows: Wrongful gain: ‘Wrongful gain’ is gain by unlawful means of property to which the person gaining is not legally entitled. Wrongful loss: ‘Wrongful loss’ is the loss by unlawful means of property to which the person losing it is legally entitled. Gaining wrongfully, losing wrongfully. A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully keep out
19 KN Mehra v State of Rajasthan AIR 1957 SC 369, (1957) Cr LJ 552(SC).
of any property, as well as when such person is wrongfully deprived of property. In the case of KN Mehra v State of Rajasthan20, It was held that a person can be said to have dishonest intention if in the taking the property it is his intention to cause gain by unlawful means of the property to which the person so losing is legally entitled. It was also clear that the gain or loss contemplated need not be a total acquisition or a total deprivation but if it is temporary retention by the person wrongfully gaining or a temporary keeping out of property from the person legally entitled.
When dishonest intention is totally absent, there is no theft.
Taking another man’s property, believing, under a mistake of fact and in ignorance of law, that he has the right to take, therefore, does not amount to theft.
If the act done is not animo-furandi, it will not amount to theft. Meaning of Animo Furandi
20 AIR 1957 SC 369, (1957) Cr LJ 552(SC).
- The intention to steal.
In HJ Ramson V Triloki Nath21, it was held that if a company under the agreement of hire- purchase has reserved the right to seize it in the event of default in payment of installment and default is made, then, the company is not entitled to retake its possession by removing it from the hands of purchasers’ servant who had no authority either express or implied to give any consent. If the company or its agents do so they are guilty of theft. The legal possession of the lorry was vested in the purchaser and the company was not entitled to recover possession of the lorry without the consent of the purchaser. However, In K.A. Malthi v. Kona Bibbikutty, 22 The Supreme Court held that the possession of a vehicle taken by the accused financer in pursuance of the hire-purchase agreement amounts to theft as such resumption of possession is tainted with the requisite dishonest intention and mens rea.
However, in Charanjit Singh Chadha v Sudhir Mehra,23 the 21 (1942) 17 Luck 663. 22 [(1996) 7 SCC 212], 23 AIR 2001 SC 3721, (2001) Cr LJ 4255 (SC).
supreme court did not hold the financier who took back the vehicle for default in payements in accordance with the hire purchase agreement guilty of theft as he lacked the element of dishonest intention.
WITHOUT CONSENT
The taking must be without the consent of the person in possession.
There can be no theft where the owner actually consents to or authorises the taking.
Thus, where a debtor gives up property to his creditor and subsequently discovering that the debt was time-barred, charged the latter with theft, the same was held unsustainable in Musumat Piari Oulaiya.24 The consent may be express or implied, may be given by the person in possession or by any person having for that authority either express or implied.
24 (1904) 1 ALJ 508.
MOVING OR TAKING
There must be moving of the property with an intention to take it.
As the essence of the offence consists in the fraudulent taking, that taking must have commenced. For instance, where a man lifted up and set on end a package of linen, which was lying in a wagon and cut the wrapper to get at its contents, but was apprehended before he had taken anything out; and where a pick-pocket got a purse out of the owner’s pocket, but was unable to carry it away, because it was attached to his pocket by a string, the judges held that there had been no theft ‘for a carrying away, in order to constitute a felony [there] must be a removal of the goods from the place where they were; and the felon must, for the instant at least, have the entire and absolute possession of them’25
However in the case of a post office letter carrier, the taking out of the bag in which the letters were carried during delivery, and
25 Charry’s case East PC 556
placing it in his own pocket was deemed sufficient, the jury having found that he put the letter in his own pocket intending to steal it.26
So it was held in the Madras decision Venkataswami,27 where a letter-sorter instead of handing a letter out for delivery in the usual course, secreted it on his person, that he might give it to the delivery peon himself with a view to sharing the postage payable by the addressee; the high court ruled that by this act he took the letter out of the possession of the post office authorities without their consent for a fraudulent purpose and therefore committed theft.
CONCLUSION The actus reus of theft is usually defined as an 26 R V Ponyton L and C 247. 27 (1890) ILR 14 Mad 229.
unauthorized taking, keeping or using of another's property which must be accompanied by a mens rea of dishonesty and/or the intent to permanently deprive the owner or the person with rightful possession of that property or its use. These ingredients are necessary to commit the offence of theft under section 378 of IPC. If any of these ingredients is not found, then it would not come under the purview of sec 378 of IPC and the accused cannot be punished under sec 379 of IPC.
Extortion
INTRODUCTION The offence of extortion is intermediary between the offence of theft and robbery. Extortion becomes robbery, if the offender at the time of committing the offence puts the person in fear and commits the extortion by causing fear of instant death, hurt or wrongful restraint. However, in robbery, the
property can be removed by force without the person delivering the property. Section 384 deals with Punishment for extortion. It says, 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. CONTENT ANALYSIS 383. Extortion reads as 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”.
INGREDIENTS The following are the essential ingredients of the offence of extortion: 1. Intentionally putting a person in fear of injury,
2. The purpose of which is to dishonestly induce the person put in fear, 3. To deliver property or valuable security.
Principles:1. Injury here includes only such harm as may be caused illegally to a person's mind or body or reputation or property. From the above description of extortion as per section 383 of the Indian Penal Code, it can be inferred that the offence of extortion must have following essential ingredients A. Intentionally putting a person in fear of injury - One of the necessary ingredients of the offence of extortion is that the victim must be induced to deliver to any person any property or valuable security etc. under of injury. The fear must be of such nature and extent as to unsettle the mind of the person on whom it operates, and takes away from his acts the element of free voluntary action which alone constitutes consent. Here the wide interpretation of injury must be kept in mind in respect to section 44 which is as follows Section 44 : The word injury denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.
The above section therefore ascribes to the description and nature of injury being against property, injury whether physical or mental or against the goodwill of a person which may cause distress. Whether a person has in fact been put in any injury is a matter which courts must decide. Since the fear of injury is an essential ingredient to constitute the offence of extortion, it is necessary to imply that the nature and extent of such injury under similar circumstances keeping in consideration the facts of the case would be found in an ordinary reasonable prudent man. Therefore the Courts have remarked that, though fear is not necessarily confined to an apprehension of bodily injury, it must be in reason as, in reason and common experience, is likely to induce a person to part with his property against his will, and to put him as it were under a temporary suspension of the power of exercising it through influence of the terror impressed; in which case, fear implies as well in sound reason in legal construction, the place of force, or an actual taking by violence or assault upon the person.
Illustration A threatens to publish defamatory libel concerning Z, unless Z gives him money. He thus induces Z to give him money. A has committed extortion.
In State v. Basavegowda, the husband, the accused took his wife to a forest and obtained her ornaments under threats to kill to kill her. The ornaments were subsequently recovered from him. Since the essential ingredient constituting the offence of extortion, putting a person in fear of injury i.e. the threat to kill was present in the above mentioned case therefore the accused was held guilty under the offence of extortion under s.383 of the Indian Penal Code.
B. Threat of Criminal Accusation It is also to be noted that the threat of a criminal charge, whether true or false would also amount to the fear of injury. Herein the guilt or the innocence of the party threatened would be immaterial. Therefore threatening to expose a clergyman who had criminal intercourse with a woman in a house of ill-fame in his own church and village, to his own bishop, and arch-bishop and also publish his shame in the newspapers was held to be such a threat wherein an ordinary prudent man could not be expected to resist such threat. The injury in the case was an injury to the reputation thus falling under the scope and meaning of µinjury¶ as per s.44. This constitute the offence of extortion and the clergyman was held guilty.
Similarly it was decided in an another key English case, where the prisoner was charged with robbery for having induced the prosecutor to part with money by a threat that the prisoner would take him before the magistrate and accuse him of having attempted an unnatural offence. The prisoner induced fear and therefore was guilty of extortion. In case of Purshrottam Jethanand v.State of Kutch,28 the accused was a police jamadar working in the local in the local investigation branch of the State of Kutch. He had visited a particular taluk , and checked passports of a number of persons who had returned from Africa. In the course of the check he collected the passport of one Ananda Ratna in a village and demanded a sum of Rs. 800 for its return. Accordingly the said amount was paid and the passport returned. The accused was convicted under s.384 IPC, it was contented before the Supreme Court, no fear of injury was held out by the accused to support the conviction under s.384 of IPC. However the Supreme Court held that from the evidence, it was found that the accused in the course of his check of the passports had suspicion that some of the passports were not genuine. There was an implied threat for prosecution in respect of the same and withholding of the passport on that threat. Even assuming that the passports were genuine, wrongfully with holding the same was equally a fear 28 AIR 1954 SC 700, (1954) Cr LJ 1751 (SC).
of injury. Also in the mentioned case, it is eminent that there was a fear of injury in the form of threat of criminal accusation. Hence the offence was covered under s.384 of IPC. C. Dishonestly induces a person to deliver any
property Another chief element or ingredient of extortion is that the inducement must be dishonest. Delivery by person put in fear is essential in order to constitute the offence of extortion. The offence of extortion is not complete until there is actual delivery of the possession of the property of the person put in the fear and there is wrongful loss. The delivery of property is as distinct from taking away property is of essence of the matter in extortion. Where there is no delivery of property, but the person put in fear of injury offers no résistance to carrying of the property, the offence is of robbery instead of extortion. Then again immovable objects may also become the subject matter of extortion in as much as the offence of extortion consists in inducing a person put in fear to deliver to deliver valuable security or anything signed or sealed which can be converted into valuable security.
Illustration - A, by putting Z in fear of injury, dishonestly induces Z to sign or affix his seal to a blank paper and deliver it to A. Z signs and delivers the paper to A. Here as the paper so signed maybe converted into a valuable security. A has committed extortion. Where the accused honestly believed, complainant had taken money belonging to him (the accused), an attempt to take back that amount cannot be said to be with the intention of causing wrongful loss to the victim. To Any Person It is not necessary that a threat should be should be used and property received, by one and same individual. It may be a matter of arrangement between several persons that the threats should be used by some and the property received by others. Hence all people involved in such arrangement would be guilty of the commission of the offence of extortion. In the case, RS Nayak v. AR Antulay29, the respondent was the Chief Minister of Maharashtra at the relevant time. During this period, he formed 29 AIR 1986 SC 2045, (1986) Cr LJ 1922 (SC).
seven trusts, one of which was Indira Gandhi Pratibha Prathisthan (IGPP). The chief minister demanded that unless the sugar do-operatives who had placed a charter of demands before the Government of Maharashtra, made contributions to the IGPP, their demands pending before the government would not be acceded to. The entire official machinery, particularly of the Sugar Directorate, was utilised to pressurise the sugar federation for extracting the contributions. As a result of such extortion, several sugar factories had to yield and pay up. It was contented by the respondent that in order that s.383 should apply, the respondent should out threat to do or to omit to what he is legally bound to do in future. If all that a man does is to promise to do a thing which he is not legally bound to do, then such act would not amount to extortion. The Supreme Court accepted the contention and merely held that merely because the respondent was the chief minister at that time and pressure was brought on sugar co-operatives to pay up donations as a measure of reciprocating for consideration of their demands pending before the government, it cannot be said that the ingredients of extortion was made out .Since the element of consent in voluntary act is necessary, it should be an act which the victim is legally bound to do in the future or an illegal omission
In Labhshankar vs. State of Saurashtra, and in Vena Ram vs. State of Raj, it was held that charge under Section 384 IPC, is not sustainable if the property is not delivered by the person extorted. The thing delivered under Section 383 may be any property or valuable security, or anything signed or sealed with may be converted into a valuable security. Valuable security is defined in Section 30 of the Code thus: “The words ‘valuable security’ denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liabilities, or has not a certain legal right. In Biram Lal vs. State, it was held that in order to complete the act of extortion the person who was put in fear, must have been induced to deliver the property. If the act of inducement caused by the wrong doer should bring forth its result at least by the victim consenting to deliver property even if actual delivery does not take place due to any fortuitous circumstances which would constitute extortion, but if it fails to produce the requisite effect, the act would remain only at the stage of attempt to commit extortion. In the instant case, even if the offence of extortion is held to be not made out for want of delivery of the property at least, the offence of attempt to commit extortion is clearly made out
For example, A writes his name on the back of a bill of exchange and the effect of this endorsement is to transfer the right to the bill any person who may become the lawful holder of it, the endorsement is a ‘valuable security’. The expression ‘anything signed or sealed’ denotes that even incomplete deeds may be the subject of extortion. If a minor boy is beaten and forced to execute a pro note, the person using such force would be liable under Section 283, but forcible taking of thumb impression on a piece of paper which can be converted into a valuable security does not amount to extortion but to an offence under Section 352 of the Code. But incomplete deeds may be the subject of extortion. For instance, A signs his name to a promissory note in which date and amount etc. are not filled up and delivers it to B, the offence of extortion is committed because promissory note can be completed and used as valuable security.
BURDEN OF PROOF Thus what is necessary for constituting an offence of extortion is that the prosecution must prove that on account of being put into fear of injury the victim was voluntarily delivering any particular property to the man putting him into fear. If there was no delivery of any property, then the most
important ingredient constituting an offence of extortion was not available.
DIFFERENCE BETWEEN THEFT AND EXTORTION Section 383 states: 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 deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits extortion. As To Consent: In extortion, consent is obtained by putting the person in possession of property in fear of property in fear of injury to himself or any other person. In theft, the offender’s intention is to take the property without the owner’s consent. There is no element of force in theft. Property: In Extortion , both moveable and immoveable property may be the subject of the offence. In theft it is limited only to moveable property. Element Of Force: There is element of force in the offence of extortion as the property is obtained by putting a person in
fear of injury to that person or any other. There is no element of force in theft. Scope: Extortion is wider in scope as it coved any kind of property, valuable security or anything that may be converted into valuable security. Theft covers only the cases of moveable property. Taking Of Property: In extortion, threat may be by one person and the property may be received by another person. In theft, property must be move by person in order to such taking. Effect: In extortion, the property is delivered. In theft, there is dishonest removal of property
Robbery Section 390 of IPC talks about Robbery. It explains that 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, or 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, or of instant hurt, or of instant Wrongful restraint. Illustrations: (a) A holds Z down, and fraudulently takes Z’s money and jewels from Z’s clothes, without Z’s consent. Here A has committed theft, and, in order
to the committing of that theft, has voluntarily caused wrongful restraint to Z. A has therefore committed robbery. (b) A meets Z on the high road, shows a pistol, and demands Z’s purse. Z, in consequence, surrenders his purse. Here A has extorted the purse from Z by putting him in fear of instant hurt, and being at the time of committing the extortion in his presence. A has therefore committed robbery. (c) A meets Z and Z’s child on the high road. A takes the child, and threatens to fling it down a precipice, unless Z delivers his purse. Z, in consequence, delivers his purse. Here A has extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is there present. A has therefore committed robbery on Z. (d) A obtains property from Z by saying – “Your child is in the hands of my gang, and will be put to death unless you send us ten thousand rupees.” This is extortion, and punishable as such: but it is not robbery, unless Z is put in fear of the instant death of his child.
A. Meaning: Robbery means a felonious taking from the person of another or in his presence or against his will, by violence or putting him in fear. Robbery is an aggravated form of theft or extortion. If there is no theft or no extortion, there is no robbery. B. In all robbery there is either theft or extortion: The framers of the Indian Penal Code observed: “There can be no case of robbery which does not fall within the definition either of theft or extortion; but in a practice it will perpetually be a matter of doubt whether a particular act of robbery was a theft or extortion. A large proportion of robberies will be half theft, half extortion. A seizes Z, threatens to murder him, unless he delivers all his property, and begins to pull of Z ornaments. Z in terror begs A will take all he has, and spare his life, assists in taking of his ornaments, and delivers them to A. Here, such
ornaments as A took without Z’s consent is taken by theft. Those which Z delivered from fear of death or acquired by extortion. It is by no means improbable that Z’s right arm bracelet may have been obtained by theft and left arm bracelet by extortion; that the rupees in Z’s girdle may have been obtained by theft and those in his turban by extortion. Probable in nine-tenths of the robberies which are committed something like this actually takes place, and it is probable a few minutes later neither the robber nor the person robbed would be able to recollect in what proportions theft and extortion were mixed in the crime; nor is it at all necessary for the ends of justice that this should be ascertained. For though, in general, the consent of a suffer is a circumstance which vary materially modifies the character of an offence, and which ought, therefore, to be made known to the Courts, yet the consent which a person gives to the taking of this property by a ruffian who holds a pistol to his breast is a circumstance altogether immaterial.”
C. When theft is robbery: Before theft can amount to robbery,— Firstly: The offender must have voluntarily caused or attempted 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, Secondly: This must be in order to the committing of theft, or in committing of theft, or in carrying away or attempting to carry away property obtained by the theft,
Thirdly: The offender must voluntarily cause or attempt to cause to any person hurt, etc., for that end, that is in order to committing theft or for carrying away or
attempting to carry away property obtained by the theft, Fourthly: The offender must voluntarily attempt one or any of the above acts. D. When extortion is robbery: Similar to the above point, extortion becomes 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, or of instant hurt, or of instant wrongful restraint to that person or to some other, and, by so putting in fear induces the person so put in fear then and there to deliver up the thing or property extorted. E. Punishment: Sec. 392 imposes punishment for robbery. It lies down that whoever commits robbery shall be punished with rigorous imprisonment for a term
which may extend to ten years, and shall also be liable to fine; and if the robbery be committed on the high-way between the sun-set and the sun-rise, the imprisonment may be extended to fourteen years. F. Attempt to commit robbery: Sec. 393 says that whoever attempts to commit robbery, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine. G. Voluntarily causing hurt in committing robbery: According to Sec. 394, if the offender while committing robbery voluntarily causes hurt to the complainant, such offender shall be punished with imprisonment with life or with rigorous imprisonment for a term which may extend to ten years, and also fine.
In Omprakash vs. State,30 the accused committed a high-way robbery. They looted the passengers of the bus. The trial Court imposed punishment for life. On appeal High Court upheld it.
30 (1978 Cr LJ 797 All.)
DACOITY Every dacoity is robbery. There is only slight difference between robbery and dacoity. Dacoity is nothing but robbery committed by five or more persons. Section 391 of Indian penal code says, when five or more person 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. It is punishable under section 395 of Indian penal code. It says, whoever commits dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
DIFFERENCE BETWEEN ROBBERY AND DACOITY.
For an offence of dacoity, minimum number of the miscreants required is five. The term
dacoity is defined in section 391 IPC which clearly postulates that when five or more person conjointly commit or attempt to commit a robbery or where the whole number of person 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 offence of robbery is defined in section 390 IPC and as is clear from a perusal of the said section even a theft is robbery if during its commission the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restrain or fear of instant death or of instant hurt or of instant wrongful restrain.
Whereas robbery is punishable under section 392 IPC dacoity is punishable under se 395 of IPC.
PUNISHMENT FOR DIFFERENT TYPES OF DACOITY Section 395 of the Indian penal code provides for punishment for dacoity. It says, whoever commits dacoity shall be punished with [imprisonmentfor
life] or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. It comes into play only when the prosecution makes out an offence under section 390 and the number of assailants reaches to the statutory minimum. The maximum punishment provided under this section is life imprisonment for a term which may extend to ten years. Fine also be imposed. Dacoity is considered a very grave and serious crime and hence courts hence held that in cases of dacoity deterrent sentences is called for. In awarding punishment for an offence under this section two things are to be considered:
1)
Having regard to the gravity of the offence committed the punishment that each individual deserves
2) On the facts and circumstances of a particular case whether an unusually heavy sentence is required to protect the interests of the public at large by acting as a deterrent to others.
Section 396 of the Indian Penal Code (Decoity with murder), deals with an aggravated form of dacoity. It says if any one of five or more persons who are conjointly committing dacoity commits murder in so committing dacoity, every one of those persons shall be punished with death or[ imprisonment for life] or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In order to bring home the offence of dacoity with murder under section 396, it is not necessary to prove that the murder was committed by any particular member of the gang or that it was a common intention of the gang to commit the murder or that other members of the gang expected the murder to take place. Nor it is necessary to prove that murder was committed jointly by all the members of the gang. All that is required to be established by the prosecution is that the murder had been committed while committing a dacoity. If that is established, then all the members of the gang, who have committed dacoity, are also equally liable for the murder under this section.
Dacoity with murder depends on facts and circumstances of the case: In Shyam Bihari v state of Uttar Pradesh31 Facts of the case-The accused had entered the house with the intention of committing robbery. However, their attempt was foiled because of the hue and cry raised by the residents. All the residents of the village and the neighbouring village arrived on the scene. The accused and his companions without collecting their bootyran away from the house. They were chased by the residents and when they were crossing the ditch, one of the dacoits was caught by a villager. Thereupon, another dacoit fired a pistol, which hit the villager killing him instantly. The Supreme Court held that the transaction of the dacoity had endedthe moment the dacoits started fleeing, because this was a case where the dacoits escaped without the booty. A separate transaction took place when the accused shot dead the villager while crossing the ditch. It was, therefore, held that it was not a case of dacoity with murder under S 396. The accused was convicted under s 302, IPC. Section 397 deals with robbery or dacoity, with attempt to cause death or grievous hurt- This section says that if, at the time of committing robbery or dacoity, the offender used any deadly 31 AIR 1957 SC 320, (1957) Cr LJ416 (SC)
weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall be less than seven years.
Section 398 deals with attempt to commit robbery or dacoity when armed with deadly weapon- the section says that if, at the time of attempting to commit robbery and decoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years. Both sections 397 and section 398 do not create substantive offence, but merely prescribe a minimum sentence for the offence of robbery and dacoity mentioned in these sections. Under section 397 of IPC, if at the time of committing robbery or dacoity the offender uses any deadly weapons or causes grievous hurt or attempts to cause death or grievous hurt, he shall be liable to suffer a minimum sentence of seven years imprisonment. The essentials of this section are as follow-
a)
An offence of robbery or dacoity must have been committed.
b)
The offender should have taken part in the said offence.
c)
The offender should have used a deadly weapons or cased grievous hurt or attempted to cause death or grievous hurt to any person at the time of committing a dacoity.
In Phool Kumar v Delhi Administration
32
the accused had entered a petrol pump. The first accused was armed with a knife while the second accused had small gun in his hand. The first accused asked the employees of the petrol pump to hand over the keys. To terrorize the employees the second accused fired three shots in the air. One shot struck the window and two hit the ground. Thereafter they ransacked the office and decamped with the money, the question that arose for consideration was whether the first accused that 32 AIR 1975 SC 905, (1975) Cr LJ 778 (SC).
was carrying a knife with him but did not use it for committing any over act would be covered under se 397. The Supreme Court held that in section 397 the words used were the offender uses whereas in section 398 the expression is armed with deadly weapons. Both the section provides minimum sentences of seven years. The court held that first accused was carrying a knife, which was a deadly weapon open to the view of the victims sufficient to frighten or terrorise them. Any other overt act, such as, brandishing of the knife or causing grievous hurt with it, was not necessary to bring the offender under this section. Section 397 covers the cases of completed offence of robbery or dacoity with the use of deadly weapons. Section 398 covers the attempt to commit robbery or dacoity armed with any deadly weapon. Under this section, any offender who is found guilty of attempting to commit robbery or dacoity, and is also found to be armed with deadly weapons, then the minimum sentence to be awarded to such offender under s 398 is seven years.
