Abstract
This paper puts endeavors to undertake the essential ingredients of offence of theft and extortion under new criminal laws. While understanding the essential ingredients with the help of case laws also put emphasis on their clear definition and how the offence of theft becomes robbery and how the offence of extortion becomes robbery. This paper also discusses actus reus[1] and mens rea[2] of both the offence with the help of table, the paper examines the basic difference between both the offences that too with help of table. Dealing with illustration related to the concept and putting light on the punishment and classification of both the offences this paper reflects the core idea of both the concept under Bhartiya Nyaya Sanhita 2023.[3]
Introduction
As we know that The Bhartiya Nyaya Sanhita 2023 has replaced IPC 1860[4].BNS is more victim oriented as compared to IPC which was enforced during the colonial era and so as to do Sanskritization the new laws have been implemented in the country. The offences like theft and extortion which are in section 303 and 308 respectively has evolved a little bit because the nature of doing the acts have changed with the change in the society. As we are aware that technology has evolved so much in the previous years so the mode of committing crimes has also been inclined towards doing it through the use of technology and by using internet. In the previous year theft was committed by the way of pickpocketing or house breaking but now due to development in the technology the same offence is being committed in online mode by the scammers. Both the offences (Theft and Extortion) come under the prevue of offences against the property. The core difference between both the concept is that theft includes taking of property whereas extortion means delivery of property.
What Is Theft?
The concept of theft is dealt under section 303[5] of Bhartiya Nyaya Sanhita 2023. Where it is mentioned that “any person intending to take away movable property with dishonest intention out of the possession of the person without that individual’s consent[6], moves that property in order to take such property is said to commit the offence of theft”. For the commission of crime one needs Actus reus and Mens rea so for the commission of the offence of theft one needs-
| ACTUS REUS | MENS REA |
| TAKING AWAY THE PROPERTY | WITH DISHONEST INTENTION |
Actus reus means the act which has led to committal of offence and in case of theft the actus reus is the taking away the property out of the possession of the person.
Mens rea is the mental intent of the person and intention is the highest degree of mens rea and for the offence of theft dishonest intention is required.
Essential Ingredients
| DISHONEST INTENTION | MOVABLE PROPERTY | OUT OF THE POSSESSION | WITHOUT THE CONSENT |
The essential ingredients for the offence of theft are dishonest intention, movable property, moving that property out of the possession of the person and that too without the consent of that person. We will now evaluate all of these essential ingredients one by one with the help of relevant case laws.
Dishonest Intention
- The term dishonest intention means some kind of wrongful gain to the person who is not legally entitled for the gain or some kind of wrongful loss to a person who is legally entitled for gain.
Illustration
Suppose there is a person ‘A’ who was carrying a mobile phone and another person named ‘B’ threw his mobile in the river. So here the person A has suffered a wrongful loss because he was not entitled for the same though there is no wrongful gain to the person B but still it is dishonest intention.
Case Law
Pyarelal Vs State Of Rajasthan 1963[7]
In this case the court held that temporary removal of movable property with dishonest intention also amounts to theft.
State Of Maharashtra Vs Viswanath Umale 2000[8]
In this case a police officer tool some gold ornaments during investigation so the court held that there was dishonest intention on the part of the police officer.
N. Bhargavan Vs State Of Kerala 2004[9]
Here in this case the court said that the dishonest intention of the accused person would be seen at the time of taking the property.
Movable Property
- The second essential is that the property should be movable property. Movable property defined as any property of any description, except land and things attached to the earth or permanently fastened to anything attached to the earth as per section 2(19) of BNS 2023.
Case Law
R.K. Dalmia Vs Delhi Administration 1962[10]
Here in this case the court said the both the properties be it tangible or intangible should be included the context of movable property.
Avtar Singh Vs State Of Punjab 1965[11]
In this case the court considered electricity as movable property and stealing electricity would be covered under the ambit of movable property only.
B.K. Bansal Vs State 2010[12]
In this particular case the court considered shares and securities as to be under the ambit of movable property.
Various Laws And Section Under Which Immovable Or Movable Property Is Defined
| LAW | SECTION |
| Transfer of property act [13] | Section 3 |
| Registration act [14] | Section 2(9) |
| General clause act [15] | Section 3(36) |
Out Of The Possession
- The term out of the possession can vary from situation to situation and from case to case depending on the facts and surrounding circumstances. The offence of theft is against possession and not ownership so if the owner moves away the property with dishonest intention without the permission of the person in whose possession the movable property was then that would also amount to theft.
Illustration
Suppose there is a person named ‘A’ who has given a watch to get it repaired from a shopkeeper but next day he went to the shop and with dishonest intention because he did not want to pay the money for repair so he moved away the property from that shop. Here we can see that ‘A’ who was the owner of the watch but still he has committed the offence of theft because the offence of theft is against possession and not ownership.
Case Laws
Rex Vs Chisser 1812[16]
Here in this case the court held that moving a property with dishonest intention be it even an inch would amount to theft.
M.C. Chockalingam Vs Mangilal 1969[17]
The court said that moving is the initial point of theft and even slight movement with dishonest intention is sufficient.
Without Consent
Theft is committed by the above elements and also if the movement of the property was with dishonest intention and that too without the consent of the person in whose possession the property was. Under the Indian Contract Act, 1872,[18] consent is defined as a “meeting of minds” where two or more parties agree upon the same thing in the same sense. Section 13 of the Act explicitly states this, emphasizing the need for mutual understanding and agreement. For consent to be considered “free,” it must be given without coercion, undue influence, fraud, misrepresentation, or mistake.
Case Laws
K.N. Mehra Vs State Of Rajasthan 1957[19]
Here the court said that if there is moving of movable property without the consent of the person it will amount to theft it is of no use whether that property was returned back or not.
K.T. Moopil Vs State Of Kerala 1968[20]
The court emphasized that if the person has given voluntary consent then that would not amount to theft because the essential ingredient ‘without consent’ is missing.
Sundara Nathan Vs State Of Tamil Nadu 1970[21]
It was that if the consent is given by the owner or person in lawful possession to take that property then that would not come under the ambit of theft.
Bhagwan Singh Vs State Of Rajasthan 1976[22]
In this case it was held that if the consent given by the person is given under coercion or by mistake then that consent would not be considered as voluntary consent and the offence would result into theft.
Punishment Of Theft
Section 303 of Bhartiya Nyaya Sanhita defines the amount of punishment for the offence of theft-
Imprisonment – simple or rigorous which may extend to 7 years
And
Fine – discretion of the court
In addition, there is a seven-year maximum imprisonment and a fine if the theft is done within a dwelling house, tent, or vessel that is used as a place for human habitation. Any structure, tent, or vessel used as a place for people to live is referred to as a “dwelling house.”
In the event that the defendant has a prior theft conviction, they may face harsher penalties for future theft charges. In certain situations, the penalty consists of a fine and a maximum sentence of seven years in jail.
What Is Extortion?
The concept of extortion is dealt under section 308[23] of Bhartiya Nyaya Sanhita. In case of Theft there is taking away the property but in case of Extortion there is delivery of property. Extortion can be of both movable as well as immovable property.
| Actus reus | Mens rea |
| Delivery of the property | Intentionally putting someone in fear of injury to mind, body, reputation or property. |
If someone puts another person in the fear that he will injure his mind, body, reputation or property and due to this there is a delivery of property. That delivery of property can to some another person also and always to the person who is putting another in fear.
Case Laws
Subhash Chandra V. State Of Delhi 2013 [24]
The accused person in this case was a government official who was suspected of extortion. The accused was found guilty of extortion by the Supreme Court because he had threatened to delay license issue and sought bribe money from a firm.
State Of Punjab V. Major Singh (1996)[25]
the accused in this case was a police officer who was suspected of extortion. The accused was found guilty of extortion by the Supreme Court because he had threatened to incriminate a truck driver and demanded money from him.
Essential Ingredient Of Extortion
- Deliberately putting a person in fear of hurt or injury
- Dishonest inducement to the person
- Delivery of valuable security
- The act must be done intentionally or deceitfully
- Intention plays a crucial role, which one will get to know by observing all the surrounding circumstances of the case
Who Can Be Put In Fear For Delivery
The person from which the property is to be extorted or someone else can also be put in fear for delivery of property.
Illustration
Suppose there is a person ‘A’ who calls another person that if you do delivery your car to me then I will injure your child. Here the person is not putting the person from whom the property is to be extorted but some another person.
Case Laws
State Of Maharashtra Vs Mohd. Yakub 1980[26]
In this case the court held that even if the fear was not immediate then also it will amount to extortion.
Swami Dhirendra Brahmachari Vs State 1996[27]
Here the person puts another person in fear that he will disclose her past if she didn’t pay him money, so here also there is fear of injury to reputation of a person hence it will also amount to extortion.
Attempt To Extortion
If the person puts another person in the fear of injury to mind, body, reputation or property but there is no delivery of the property then that person would be held liable for the offence of attempt to extortion.
Case Law
State Of U.P. Vs Ram Chandra 1976[28]
In this case the court held that mere demanding money with threats and causing fear can contribute attempt to extort even if the money is not received.
Who Can Put A Person In Danger
Generally, the person who wants to extort the property puts the person in fear but sometimes somebody else can put a person in danger and delivery of property can be to someone else.
Illustration
Suppose there is a person ‘B’ who calls a person that a man is standing outside your house and you have to give him 10 lakhs rupees otherwise your past corruption cases would be disclosed to the public in general. So here the person who is putting in fear is different and the person receiving the property is different.
How Extortion Can Be Converted To Robbery
If there is instant fear caused to the person and instant delivery of property is there then it will amount to the offence of robbery.
Illustration
There is a person standing near to ‘A’ with pointing a gun on his head and saying that keep all your valuable belongings in the bag. Here there is instant fear and instant delivery of property so here it is the case of robbery.
Case Laws
Aftab Ahmad Vs State Of Uttaranchal 2010[29]
In this case a person was kidnapped and money was extorted from him. So in this case the person has committed the offence of robbery.
Sham Singh Vs State Of Haryan 2009[30]
In this case the accused threatened the complainant with injury and took his valuable using weapons. Here the high court convicted that person for the offence of robbery.
Punishment For Extortion
- For general extortion the punishment is up to 7 years of imprisonment and fine.
- If extortion is done by putting someone in fear of Death or Grievous hurt then it is up to 10 years of imprisonment.
Difference Between Theft And Extortion
| THEFT | EXTORTION |
| This is covered under the section 303 of BNS 2023. | This is covered under section 308 of the BNS 2023. |
| In theft there is taking of the property. | In extortion there is delivery of the property. |
| Actus reus – Taking the property Mens rea – Dishonest intention | Actus reus – Delivery of the property Mens rea – Intentionally putting someone in fear. |
| Theft can be converted into robbery if there is death, hurt, wrongful restraint of fear of any one of these while committing theft, for committing theft or while taking away the property. | Extortion can be converted into robbery if the fear of injury and delivery of property is instant in nature. |
Case Law
Dhananjay Kumar Singh Vs State Of Bihar 2007[31]
In this case the court held that a consent in theft is for the taking of the property but in case of extortion the consent is by fear or coercion which is basically involuntary consent.
Classification Of Offences
Theft
- Cognizable: This means that the police have the authority to arrest the accused without a warrant if they have reasonable grounds to believe that a theft offence has been committed.
- Non-bailable: This means that a person accused of Theft cannot be released on bail as a matter of right. Bail can be granted at the discretion of the court, but it is not an automatic entitlement.
- Triable by any magistrate: The case of Theft can be heard and decided by any magistrate, irrespective of their jurisdiction.
Extortion
- Triable by any magistrate: Extortion cases can be tried and adjudicated by any magistrate, regardless of their jurisdiction.
- Non-bailable: Similar to Theft, extortion is a non-bailable offence, and bail can be granted at the court’s discretion.
- Compoundable: Unlike Theft, extortion is a compoundable offence, which means that the victim and the accused can reach a compromise, and the victim can withdraw the case with the permission of the court.
References
- “All about Section 384 of Indian Penal Code, 1860 – iPleaders.” 09 Feb. 2022, https://blog.ipleaders.in/all-about-section-384-of-indian-penal-code-1860/
- “The offence of theft under the IPC.” 10 Sept. 2021, https://indianlegalsolution.com/the-offence-of-theft-under-the-ipc/.
- “The offence of theft under the IPC.” 10 Sept. 2021, https://indianlegalsolution.com/the-offence-of-theft-under-the-ipc/.
- “Difference between theft and extortion” 10 August,2023, https://lawbhoomi.com.
[1] action or conduct which is a constituent element of a crime, as opposed to the mental state of the accused.
[2] the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused.
[3] Bhartiya Nyaya Sanhita 2023
[4] Indian Penal Code 1860
[5] defines theft as the act of someone dishonestly taking movable property out of someone else’s possession without their consent, by moving the property for that purpose.
[6] Scholarly definitions of consent generally agree that it’s a willing, positive agreement to engage in an activity. It’s not just the absence of opposition, but an active affirmation of participation
[7] AIR 1963
[8] AIR 2000
[9] AIR 2004
[10] AIR 1962
[11] AIR 1965
[12] AIR 2010
[13] Transfer of property act 1882
[14] Registration act 1908
[15] General clause act 1897
[16] AIR 1812
[17] AIR 1969
[18] Indian contract act 1872
[19] AIR 1957
[20] AIR 1968
[21] AIR 1970
[22] AIR 1976
[23] Section 308 of the Bhartiya Nyaya Sanhita (BNS) deals with the crime of extortion, which occurs when someone intentionally puts another person in fear and thereby dishonestly induces them to deliver property, a valuable security, or anything signed or sealed that can be converted into a valuable security.
[24] AIR 2013
[25] AIR 1996
[26] AIR 1980
[27] AIR 1996
[28] AIR 1976
[29] AIR 2010
[30] AIR 2009
[31] AIR 2007
Author: Ritu Chaudhary student at UILS, Panjab University.
