BNS Section 303: Theft

Definition of BNS Section 303

Section 303 of the Bharatiya Nyaya Sanhita (BNS), 2023 states:

(1) 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.

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 this section 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.

Illustrations.

(a) A cuts down a tree on Z’s ground, with the intention of dishonestly taking the tree out of Z’s possession without Z’s consent. Here, as soon as A has severed the tree in order to such taking, he has committed theft.

(b) A puts a bait for dogs in his pocket, and thus induces Z’s dog to follow it. Here, if A’s intention be dishonestly to take the dog out of Z’s possession without Z’s consent. A has committed theft as soon as Z’s dog has begun to follow A.

(c) A meets a bullock carrying a box of treasure. He drives the bullock in a certain direction, in order that he may dishonestly take the treasure. As soon as the bullock begins to move, A has committed theft of the treasure.

(d) A being Z’s servant, and entrusted by Z with the care of Z’s plate, dishonestly runs away with the plate, without Z’s consent. A has committed theft.

(e) Z, going on a journey, entrusts his plate to A, the keeper of a warehouse, till Z shall return. A carries the plate to a goldsmith and sells it. Here the plate was not in Z’s possession. It could not therefore be taken out of Z’s possession, and A has not committed theft, though he may have committed criminal breach of trust.

(f) A finds a ring belonging to Z on a table in the house which Z occupies. Here the ring is in Z’s possession, and if A dishonestly removes it, A commits theft.

(g) A finds a ring lying on the highroad, not in the possession of any person. A, by taking it, commits no theft, though he may commit criminal misappropriation of property.

(h) A sees a ring belonging to Z lying on a table in Z’s house. Not venturing to misappropriate the ring immediately for fear of search and detection, A hides the ring in a place where it is highly improbable that it will ever be found by Z, with the intention of taking the ring from the hiding place and selling it when the loss is forgotten. Here A, at the time of first moving the ring, commits theft.

(i) A delivers his watch to Z, a jeweler, to be regulated. Z carries it to his shop. A, not owing to the jeweler any debt for which the jeweler might lawfully detain the watch as a security, enters the shop openly, takes his watch by force out of Z’s hand, and carries it away. Here A, though he may have committed criminal trespass and assault, has not committed theft, in as much as what he did was not done dishonestly.

(j) If A owes money to Z for repairing the watch, and if Z retains the watch lawfully as a security for the debt, and A takes the watch out of Z’s possession, with the intention of depriving Z of the property as a security for his debt, he commits theft, in as much as he takes it dishonestly.

(k) Again, if A, having pawned his watch to Z, takes it out of Z’s possession without Z’s consent, not having paid what he borrowed on the watch, he commits theft, though the watch is his own property in as much as he takes it dishonestly.

(l) A takes an article belonging to Z out of Z’s possession without Z’s consent, with the intention of keeping it until he obtains money from Z as a reward for its restoration. Here A takes dishonestly; A has therefore committed theft.

(m) A, being on friendly terms with Z, goes into Z’s library in Z’s absence, and takes away a book without Z’s express consent for the purpose merely of reading it, and with the intention of returning it. Here, it is probable that A may have conceived that he had Z’s implied consent to use Z’s book. If this was A’s impression, A has not committed theft.

(n) A asks charity from Z’s wife. She givesA money, food and clothes, which A knows to belong to Z her husband. Here it is probable that Amay conceive that Z’s wife is authorised to give away alms. If this was A’s impression, A has not committed theft.

(o) A is the paramour of Z’s wife. She gives a valuable property, which A knows to belong to her husband Z, and to be such property as she has no authority from Z to give. If A takes the property dishonestly, he commits theft.

(p) A, in good faith, believing property belonging to Z to be A’s own property, takes that property out of Z’s possession. Here, as A does not take dishonestly, he does not commit theft.

(2) 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 and in case of second or subsequent conviction of any person under this section, he shall be punished with rigorous imprisonment for a term which shall not be less than one year but which may extend to five years and with fine:

Provided that in cases of theft where the value of the stolen property is less than five thousand rupees, and a person is convicted for the first time, shall upon return of the value of property or restoration of the stolen property, shall be punished with community service.

Explanation and Illustration of Section 303 (Bharatiya Nyaya Sanhita, 2023)

This section is applicable to any person within the sovereign borders of India, whether citizen, resident or otherwise. It deals with the offence of theft. Let us break down the section to get a better understanding of it.

Offence

This section provides for the offence of theft. It has been divided into two subsections. Let us look at these subsections one by one.

Subsection 1 aims to define the meaning of theft for the purposes of this section. It define theft as having dishonest intentions of dispossessing a person of his or her property in an unauthorised manner. In other words, if a person dishonestly intends to take possession of someone else’s property without their authorisation or knowledge it shall be considered as theft for the purposes of this section. Further, this section has provided several examples in lieu of highlighting the various fine aspects of what comprises as theft. Let us take a look at these examples one by one.

(a) “A cuts down a tree on Z’s ground, with the intention of dishonestly taking the tree out of Z’s possession without Z’s consent. Here, as soon as A has severed the tree in order to such taking, he has committed theft.”

Here the intention is to highlight that the position of a property, in which it has been placed by the owner, is of utmost importance. Moving a property in possession of someone else without their permission can amount to theft. What remains to be seen is whether such a movement was authorised by the person in possession of said item. If not, it shall be considered theft.

(b) A puts a bait for dogs in his pocket, and thus induces Z’s dog to follow it. Here, if A’s intention be dishonestly to take the dog out of Z’s possession without Z’s consent, A has committed theft as soon as Z’s dog has begun to follow A.

This example is meant to highlight how theft of sentient property such as pets and livestock is treated under the provisions of this section. It demonstrates that a sentient animal may exercise its free will outside the permission of its owner and follow another person. What remains to be seen is whether such an event or occurrence was planned or not. If the pet or animal follows another person out of its own free will, but later it is found that the pet or animal followed such person because he or she had deliberately enticed the animal to do so, in order to dispossess the owner of the pet or animal, then it shall be considered a theft. In fact, as the example points out, if the intent to dispossess is there, then it doesn’t matter whether the person actually succeeds in dispossessing the owner of the animal or not. The moment the animal is enticed, it shall be considered a theft.

(c) A meets a bullock carrying a box of treasure. He drives the bullock in a certain direction, in order that he may dishonestly take the treasure. As soon as the bullock begins to move, A has committed theft of the treasure.

This example highlights theft of goods in possession of a carrier, in this case a bullock. It demonstrates how a person needn’t take the actual goods in their possession for it to be counted as theft. If the theft involves guiding the courier in a certain misdirection in order to dispossess the owner of his or her property, then the moment the carrier has been misguided, it shall amount to theft.

(d) A being Z’s servant, and entrusted by Z with the care of Z’s plate, dishonestly runs away with the plate, without Z’s consent. A has committed theft.

(e) Z, going on a journey, entrusts his plate to A, the keeper of a warehouse, till Z shall return. A carries the plate to a goldsmith and sells it. Here the plate was not in Z’s possession. It could not therefore be taken out of Z’s possession, and A has not committed theft, though he may have committed criminal breach of trust.

We shall examine (d) & (e) together as they are related. (d) talks about a simple theft, where Z entrusts A with the care of his plate. So while A is supposed to care fo Z’s plate, it still remains in Z’s possession. So taking the plate away from its intended place amounts to dispossessing Z of his plate and hence amounts to theft. In (e), however, Z has handed over the possession of the plate to A. He has given it to A to keep until Z returns. So, technically, Z is no longer in possession of the plate and hence A’s action cannot be considered a theft for the purposes of this section. However, it amounts to criminal breach of trust which has been separately provided for under the BNS.

(f) A finds a ring belonging to Z on a table in the house which Z occupies. Here the ring is in Z’s possession, and if A dishonestly removes it, A commits theft.

(g) A finds a ring lying on the highroad, not in the possession of any person. A, by taking it, commits no theft, though he may commit criminal misappropriation of property.

(h) A sees a ring belonging to Z lying on a table in Z’s house. Not venturing to misappropriate the ring immediately for fear of search and detection, A hides the ring in a place where it is highly improbable that it will ever be found by Z, with the intention of taking the ring from the hiding place and selling it when the loss is forgotten. Here A, at the time of first moving the ring, commits theft.

We shall examine (f), (g) and (h) together as they are related. (f) highlights a simple theft, where A has found a ring belonging to Z within a premises owned by Z. So the ring is in Z’s possession in every possible manner. Taking the ring without Z’s knowledge would amount to dishonest dispossession of property, amounting to theft. (g) on the other hand highlights how the rin, even though clearly belonging to someone other than A, is not in anyone’s possession at the time of its discovery and hence taking it’s possession in a unauthorised manner does not amount to dispossessing anyone else of it. So for the purposes of this section it shall not amount to theft, although it shall be punishable as ‘criminal misappropriation of property’ under the BNS. (h) again highlights that when a property is in possession of its owner, the location where it has been placed by the owner becomes extremely important in determining theft. In this example, even though A has not really taken possession of the ring, and nor has the ring technically left the premises in which A had placed it, by removing the ring from the position in which Z had kept it for finding later, Z has been dispossessed of his property by A. And by those principles alone it shall amount to theft under the provisions of this section. It is irrespective of whether A eventually manages to take possession of the ring or not. Dispossessing Z of his ring itself amounts to theft.

(i) A delivers his watch to Z, a jeweler, to be regulated. Z carries it to his shop. A, not owing to the jeweler any debt for which the jeweler might lawfully detain the watch as a security, enters the shop openly, takes his watch by force out of Z’s hand, and carries it away. Here A, though he may have committed criminal trespass and assault, has not committed theft, in as much as what he did was not done dishonestly.

(j) If A owes money to Z for repairing the watch, and if Z retains the watch lawfully as a security for the debt, and A takes the watch out of Z’s possession, with the intention of depriving Z of the property as a security for his debt, he commits theft, in as much as he takes it dishonestly.

(k) Again, if A, having pawned his watch to Z, takes it out of Z’s possession without Z’s consent, not having paid what he borrowed on the watch, he commits theft, though the watch is his own property in as much as he takes it dishonestly.

We shall examine (i), (j) and (h) together as they are related. In (i) we can observe a slightly deeper layer in the determination of the offence. Here A has voluntarily relinquished possession of his watch to Z. And in the next instant he has dispossess Z of the watch without Z’s authorisation. So technically speaking, A has dispossessed Z of an item in Z’s possession without due consent or warning. However, given that the property did not belong to Z and that Z had no reason to be in possession of the watch without the willingness of A, it cannot be considered theft. However, it shall be considered as ‘criminal trespass and assault.’ However, if you take (j) & (h), the circumstances are slightly different. In both those cases, Z has reason to be in the possession of the watch without A’s willingness as in(j) A owes Z money for repairing that watch and in (h), A has borrowed money from Z by pawning the watch. So until A has paid Z his dues in these two cases, the watch is a collateral property of Z. Dispossessing Z of the watch under these circumstances clearly amounts to theft.

(l) A takes an article belonging to Z out of Z’s possession without Z’s consent, with the intention of keeping it until he obtains money from Z as a reward for its restoration. Here A takes dishonestly; A has therefore committed theft.

This example highlights the importance of how an item came to be possessed or dispossessed. A has no intention of taking possession of Z’s property. However, he seems to be in possession of the property and he does not intend to restore it to Z without being rewarded for the restoration. What remains to be seen is how the property came into being in Z’s possession. If A has found the property unwittingly or had helped Z search for the lost property and succeeded in finding it, then holding possession of the property in such a case may not amount to theft as Z never had possession of the property when A found it. The example, however, clearly states that A took the article out of Z’s possession and hence, for all purposes, it amounts to theft.

(m) A, being on friendly terms with Z, goes into Z’s library in Z’s absence, and takes away a book without Z’s express consent for the purpose merely of reading it, and with the intention of returning it. Here, it is probable that A may have conceived that he had Z’s implied consent to use Z’s book. If this was A’s impression, A has not committed theft.

This example also highlights the importance of intent. Here A has, technically, ticked off all boxes that are needed for an action to amount to theft. However, (i) A has taken an item that is commonly lent by one person to another. (ii) A has taken it with the intent of borrowing. (iii) A has not planned on taking the item in the absence of Z. Z happened to be absent when A came to take the item. Further, A has no intention of hiding the absence of the item from Z. (iv) A believes that Z will not mind the action. And while all these assumptions might be wrong from the point of view of Z, A’s intention, while maybe misplaced, was still sincere and not dishonest. And hence this does not amount to theft under the provisions of this section.

(n) A asks for charity from Z’s wife. She gives A money, food and clothes, which A knows to belong to Z her husband. Here it is probable that A may conceive that Z’s wife is authorised to give away alms. If this was A’s impression, A has not committed theft.

This example too highlights the importance of intent. Here, Z, who may not know of his wife’s charity, may spot A wearing his clothes and presume it was theft. And it does tick all the boxes, where A has technically dispossessed Z of his property without Z’s consent. However, A did not know Z was not aware of the charity or Z would oppose the charity. Further, A did not conduct the action with intent of hiding it or concealing such possession of his items from Z. He presumed that Z’s consent was involved in the charity. And hence, it does not amount to theft.

(o) A is the paramour of Z’s wife. She gives a valuable property, which A knows to belong to her husband Z, and to be such property as she has no authority from Z to give. If A takes the property dishonestly, he commits theft.

(p) A, in good faith, believing property belonging to Z to be A’s own property, takes that property out of Z’s possession. Here, as A does not take dishonestly, he does not commit theft.

We shall examine (o) and (p) together as they are related. Similar to the previous example, this example too involves dispossession of property through someone else. However, asking for charity is a genuine and lawful reason to ask someone to relinquish their property. In this case, A has no justified or lawful reason to take possession of Z’s property except that Z’s wife gave it to him. So what matters now is Z’s intention while taking possession of the property. In (o), he knows that the property is being dispossessed without the owner’s consent and hence A’s intent on taking possession of such items is considered dishonest. Thus it amounts to theft. In (p), however, he does not know that the articles being received by him have been dispossessed from their owner without consent. Further, he has reason to trust the person giving him the articles. Thus A’s intent is clear and hence cannot be prosecuted for theft under the provisions of this section.

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