Stealing one’s own property may sound like an oxymoron but if one looks closely, it is definitely not impossible under the Indian Penal Code. Under the Indian Penal Code, theft is defined 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.”1
Essential elements to constitute theft –
1. Movable Property
2. Dishonest movement out of possession
3. Consent of the possessor
According to the definition, it is clear that ownership and theft are independent concepts and the crime of theft does not take into consideration the legal owner of the property. Theft only accounts for the possession of the movable property at the time of the crime. In layman’s language, possession and ownership may often be used interchangeably, but in law they are treated as separate concepts, which consist of different sets of rights and claims. Even though they may lie in the same hands in most cases, it is not universal in nature.
Ownership Vs Possession –
As held in the Avtar Singh case2, possession and ownership need not go hand in hand, a person is said to possess an object if he merely has the immediate custody or control over the object.
Ownership has been defined by Black’s Law Dictionary 6th Edition and referred by the Supreme Court in B. Gangadhar v. B.G. Rajalingam as “Collection of rights to use and enjoy property, including right to transmit it to others”3. Ownership is a right which is not related to the physical relation with the property but the right to possess, enjoy and transmit it further. If an owner is
denied any of these, he has a right to remedy in law to claim it back. Possession, on the other hand, deals with the physical relation with the object.
Possession can be legal or illegal control over the object. Legal possession refers when a person has a reasonable reason such as statutory authority or consent of the owner under a contract to possess it. Here is how legal possession of an immovable property by any other person affects the rights of an owner and lead to his conviction for theft.
A. Valid/legal Possession
Bailment is a type of contract which is defined under section 148 of Indian Contract Act,18724. A contract of bailment is an agreement of transfer of possession of an object or good which shall be returned or disposed as per the contract after the purpose is accomplished. Example – a contract for repair of goods, dry cleaning etc.
“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.”5
2. Pawned Object–
A pledge is a special type of bailment contract defined under section 172 of Indian Contract Act. It refers to bailment of an object as a security against any debt or performance of a promise.
“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.”6
A trustee is a person who is entrusted with the property of one for the benefit of some other person/owner. These may be created for minors, dead persons by the state or willingly by the owner.
If A, who owns a business, but cannot take care of it due to medical reasons, willingly entrusts his property into the hands of another person after signing a trust deed as per the Indian Trusts Act,18827. Moves the property out of the possession of the trustee without his consent, he commits theft, in as much as he takes it dishonestly.
4. Possession duty to Statutory Authority-
If an owner has been restricted to enjoy or possess any of his goods due to any statute then the possession of the object lies with the state.
Illustration 4 –
If a silver knife owned by X, was used by Z to murder Y and the knife has been taken under custody by the police for investigation and X dishonestly moves that knife out of the possession of the police without consent, commits theft of his own property.
5. Transfer of Goods-
Transfer of goods has no effect on the possession of an object. Hence, any movement of the property by a new owner out of the possession would still amount to theft even if they are legal owners of the property.
Illustration 5 –
If A, the owner of a car gives it for repair to Xyz Ltd. and in the meanwhile sells the car to B. If B without the consent of Xyz Ltd. dishonestly moves the car out of their possession, he commits theft despite being the legal owner of the car.
6. Joint Ownership-
If any good is owned by multiple people together and one of the joint owners takes it out of possession of the other so as to dishonestly deprive him from using it, despite being the owner of the property one can still be liable for theft.
Illustration 6 –
If A and B jointly own a computer and is currently installed in B’s house and A without the consent of B moves it out of his house so as to dishonestly deprive him from using the computer commits theft of his own property.
B. Invalid/ Illegal Possession
Illegal possession refers to possession of an object by commission of a crime such as theft, coercion or by frustration or revocation of a contract. Further, it has been held by the Supreme Court in Prataprai N. Kothari v. John Braganza 8, that even an owner must only resort to due process of law for the restoration of his goods and not turn to crimes such as theft. So, even if a person has illegal or invalid possession of one’s goods, moving his property dishonestly can lead to conviction under section 378 of the Indian Penal Code, 18609. Such a situation might arise when a jus tertii has been established. Jus tertii is the establishment of a third party’s right of possession on an object where the owner may not have willingly given possession of his object.
Phillips V Brooks10 – In this case a diamond bought from Phillips was pawned at Brooks shop before clearance of payment by misrepresentation. When the customer failed to clear payment for the diamond, Phillips sued Brooks for restoration of the diamond. In this case, the court held that a charge or jus tertii has been established on the diamond and Phillips cannot sue Brooks as he has rights to possess it. Hence if in this situation even though Mr. Phillips is still the legal owner as the contract was voidable, if he moves the diamond out of the possession of Mr. Brooks without his consent, he would be liable for theft of his own property.
However, if the act is not done dishonestly, the legal owner may be liable for other crimes but not for theft as is explained by Illustration i) of Section 378 of the Indian Penal Code,1860, which states “(i) A delivers his watch to Z, a jeweller, to be regulated. Z carries it to his shop. A, not owing to the jeweller any debt for which the jeweller 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.” 11
When an owner dishonestly moves any property out of possession of any person without the consent of the possessor, he is treated similarly as any other person would be treated under law. Therefore, an owner can be held liable for theft of his own property.
1 Indian Penal Code 1860 § 378.
2 Avtar Singh v. State of Punjab, (2002) 7 SCC 419.
3 B. Gangadhar v. B.G. Rajalingam,(1995) 5 SCC 238.
4 Indian Contract Act 1872 § 148.
5 Indian Penal Code 1860 § 378.
6 Indian Penal Code 1860 § 378.
7 Indian Trusts Act 1882.
8 Prataprai N. Kothari v. John Braganza, (1999) 4 SCC 40.
9 Indian Penal Code 1860 § 378.
10 Phillips v Brooks  2 KB 243.
11 Indian Penal Code 1860 § 378.
This article is authored by Ansha Bhagat, First Year, B.S.W. LL.B(Hons.) student at Gujarat National Law School, Gandhinagar.
Also Read – What to Do If Someone Steals Your Property?
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