“I saw a gold earring on the road, picked it, kept it in my pocket and went home. Did I commit theft? But there was nobody to claim it there. Can someone sue me for this? Did I commit theft?” Now, you are confused….Right? The gold earrings did not belong to the person who picked, and did not ask anyone to confirm ownership. Is that all it takes to constitute the offence of theft? Also, since New Criminal Laws are in force, is there any difference in committing theft under the Indian Penal Code and the Bharatiya Nyaya Sanhita? Here, we discuss theft under BNS Section 303, breaking down every bit of doubt which may occur while going through the explanations. Let’s have a look and understand how you steal stuff from others in the eyes of law.
Theft under the Indian Penal Code
Before moving on to what constitutes theft in Bharatiya Nyaya Sanhita, it is important to know what it was before the New Criminal Laws. Section 378 of the IPC defines what constitutes the offence of theft. What constitutes theft under BNS Section 303 is identical to that of the Indian Penal Code. On the other hand, Section 379 of the same provides the punishment for theft as a maximum of 3 years, with or without fine. The provision for theft under IPC did not speak of anything regarding second or subsequent conviction or return of property by the thief. The definition and punishment for theft has been incorporated under a single Section 303 of BNS.
Theft under BNS
The provision regarding theft in Bharatiya Nyaya Sanhita is encapsulated under Section 303. While IPC had separate provisions defining what constitutes theft, and the punishment for theft, the New Criminal Laws through BNS explains both the aspects in one common provision. Apart from what was already there under the Indian Penal Code, theft under BNS also includes provision about what happens if the same person commits theft again and again and gets convicted for the same. It further provides for the scenario if the stolen property is returned, or its value is returned to the owner/person in possession.
Section 303 of Bharatiya Nyaya Sanhita
303. Theft – (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.
Comment: The provision states that a person commits theft when he/she moves a property with the intention to dishonestly take that away from the person in possession without his/her consent. Such a movement in itself constitutes the offence of theft under Section 303 of BNS. It may be noted that the major ingredients of BNS Section 303 are movement of movable property, from person in possession, absence of consent, and dishonest intention.
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.
Comment: This explanation to the definition of theft clarifies that things like crops, poles, trees etc., which are attached to the earth, are immovable properties, and thus, not subject to theft. However, as soon as they are severed from the earth, they become movable, and eventually subject to theft as well. In other words, a person cannot steal an agricultural land from another, but he/she can steal the crop growing on that land for sure.
Explanation 2. – A moving effected by the same act which affects the severance may be a theft.
Comment: The explanation states that the act which leads to severance is said to be a movement to constitute theft under Section 303 of Bharatiya Nyaya Sanhita.
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.
Comment: Apart from directly moving a thing, this explanation states that removing an obstacle which prevented the thing from moving or separating from another thing also constitutes theft. So if a car has its tyres locked, and someone breaks that lock, leading to the car to move, the act is theft. If there is a rope tying a packet with a carrier behind the bicycle, and someone disentangles it, making the packet free to move, this is theft.
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.
Comment: This explanation to theft under Section 303 of Bharatiya Nyaya Sanhita includes animals as a movable property. It states that if a person moves an animal, it constitutes theft. In case the animal is holding something and the said animal is moved, such thing also moves, leading to its theft.
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.
Comment: Explanation 5 to Section 303 states that the consent for the purpose of theft under BNS may be express or implied. Also, the consent may be given by the person in possession of that thing, or by anyone having lawful authority over it. So if you ask someone to take a thing, and that person does not restrict you but stays silent with minimal gesture, such gesture may be implied acceptance/consent, and not be 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:
Comment: Section 303 (2) states the punishment for theft under Bharatiya Nyaya Sanhita, 2023. A person who commits theft under Section 303 of BNS shall be punished with maximum imprisonment of 3 years, with or without fine. If the same person already convicted for theft under BNS is again convicted for the said act, twice or more, is punishable with imprisonment of 1 to 5 years with fine. Hence, in case of subsequent conviction for theft, the punishment under BNS becomes the discretion of the Court, whether they impose a minimum imprisonment of 1 year or a maximum of 5 years. Imposition of fine is a must for subsequent imprisonment for theft.
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.
Comment: The proviso to Section 303 (2) of BNS states that if the stolen property is worth less than Rs 5,000 and it is a first time conviction for the person, he/she may be punished with community service if the said property or its value is returned.
Crux of Theft under BNS Section 303
If you do not want to be punished for theft under Bharatiya Nyaya Sanhita, you need to take care and be conscious of certain acts. You should not take anything from someone else’s possession without his/her consent. If you move something from another person’s possession and take it away with yourself without any bit of honesty but pure greed, then you are punishable for theft. Speaking of legal technicalities, if the property is immovable, you cannot steal it. If you remove it from the bound which restricted its mobility, making it immovable, you commit theft with the said movement.
