Theft is an offence against possession not title

The Kerala High Court on July 11, 2011 in Rajan Babu Vs. Anitha Chandra Babu, 2011 (3) KLT 415 : 2011 (3) KLJ 519 : ILR 2011 (3) Ker. 486 : 2011 (3) KHC 320 observed that “theft in India is an offence against possession, and not title. One of the distinctions between the English law and the Indian law of theft is that the English law looks to ownership while the Indian law looks to possession.

The Hon’ble MR. Justice THOMAS P.JOSEPH viewed that as Sec.378 of the IPC itself indicates, to constitute the offence of ‘theft’ one should ‘take’ the movable property “out of the possession of any person” without the consent of that person. In its usual signification the word ‘taken’ implies a transfer of possession, dominion or control.

In the present case the first respondent, admitting that petitioners are in possession of the property sued them for recovery of possession on the strength of title she claimed and the court declared her title and directed petitioners to surrender possession of the property within one month. In case they failed to do so, the court allowed the first respondent to recover possession through court.

“But the appellate court stayed the decree for recovery of possession. Appeal is still pending. Appeal is a continuation of the suit. Appellate court is yet to say whether petitioners have title over the property as they claim and continue in possession. Hence it may not be possible to characterize possession of petitioners as unlawful. At any rate, petitioners are in actual, physical possession of the property whatever be its nature.”

the judgment said.

While allowing the Criminal Miscellaneous Case the High Court quashed the Complaint and the FIR under Sec.379 read with Sec.34 of the IPC against the Petitioners who removes standing timber from the property in his possession after the civil court has declared title of the complainant and allowed him to recover possession of the said property.

The Learned counsel for the first respondent contended that since the matter is under investigation, it may be possible that in the course of investigation any other offence may be revealed or disclosed and if the complaint and FIR are quashed, that will impede such investigation by the police.

The Court made clear that in this proceeding it is only concerned with the offence of ‘theft’ as attributed to the petitioners. The court has not gone into the question whether any other offence is disclosed from the allegations in the complaint.

# Could a person who removes standing timber from the property in his possession even after the civil court has declared title of the complainant and allowed him to recover possession of the said property be charged with the offence of ‘theft’, is the question arising for a decision in this case.

Salmond on Jurisprudence (12th Edn., at page 273) says that the test, “for determining whether a man is in possession of anything is whether he is in general control of it. Unless he is actually holding or using it – in which event he clearly has possession – we have to ask whether facts are such that we can expect him to be able to enjoy the use of it without interference on the part of others”.

‘Possession’ is a polymorphous term which may have different meanings in different contexts. ‘Possession’ implies the physical capacity to deal with the thing as the possessor likes to the exclusion of every one and a determination to exercise that physical power on his own behalf.

In some context, “possession” embraces both actual possession and possession in law. To put it short, “possession” is, as it were, the position of the foot (possessio est quasi pedis positio). Even a trespasser can be in actual possession, may be wrongful against the true owner of the property.

A thing is not ‘taken’ unless such a change of status is effected. The expression ‘take’ when used in relation to a movable property means, “to deprive one of the possession”. Thus, to ‘take’ the timber, out of the possession of the first respondent, she should have been in ‘possession’ of it, but she had none.

It is immaterial whether petitioners had title over the timber or the land where it stood at the time of its severance or not. The criminal court is not required to adjudicate on rival claims of title claimed by the parties.

# What then is the nature of ‘possession’ referred in Sec.378 of the IPC? Is it merely possession in law or it is actual, physical possession?

“Possession” referred to in Sec.378 of the IPC is actual, physical possession.  Section 378 of the IPC defines ‘theft’ as the dishonest removal of movable property “out of the possession of any person” without the consent of that person. Standing timber being embedded in the earth is immovable property but the moment it is severed from the earth it becomes capable of being the object of theft.

The first respondent though her title was declared, had no actual, physical possession of the property. Nor was petitioners in possession of the property for and on behalf of the first respondent. They claimed title over the property for themselves. Hence no question of any express or implied trust or principle of agency is involved in the matter of possession of petitioners.

To commit ‘theft’ one should have taken the movable property “out of the possession of another”, without the consent of that person. ‘Possession’ in the context it is used in Sec.378 of the IPC is actual, physical possession.

In the present case whether wrongful or not, the property in question wherefrom trees were severed and removed was in the actual, physical possession of petitioners.

In the view the Court held that petitioners who (are alleged to have) removed standing timber from the property in their possession even after the civil court declared title of the first respondent/complainant and allowed her to recover possession of the said property cannot be charged with the offence of ‘theft’.

If so, on the averments in the complaint no offence of theft is made out. Learned Magistrate while forwarding the complaint to the Police under Sec.156(3) of the Code has not applied mind to this crucial aspect of the matter. The complaint and the FIR to the extent it concerned offence punishable under Sec.379 read with Sec.34 of the IPC cannot stand.

# Facts of the Case

The first respondent secured a decree from the court of learned Munsiff, Punalur declaring her title over 33= cents of land in Punalur Village, directing petitioners to surrender possession of the said property to the first respondent within one month of the date of decree and failing which, allowing the latter to recover possession of the property through court.

Petitioners challenged that decree in the appellate court and obtained stay of execution of the decree for recovery of possession. The first respondent filed a complaint before learned Judicial First Class Magistrate-III, Punalur complaining that while the appeal was pending petitioners and their men with intent to remove the timber, cause wrongful loss to the first respondent and make wrongful gain for themselves, cut down a few trees from the said property.

First respondent complained to the Punalur Police who directed petitioners not to remove the timber from the property. Petitioners and their men removed the timber without consent of the first respondent. That according to her, amounted to an offence punishable under Section 379 read with Section 34 of the Indian Penal Code (for short, “the IPC”).

Learned Magistrate forwarded the complaint to the Punalur Police under Section 156(3) of the Code of Criminal Procedure (for short, “the Code”). The Sub Inspector, Punalur registered a case under Sec.379 read with Sec.34 of the IPC against petitioners and started investigation.

Petitioners have approached High Court to quash the complaint and the FIR. Learned counsel for petitioners contended that no offence of theft is even prima facie made out from the complaint in that even according to the first respondent, property wherefrom the the trees were cut and removed was in the possession of petitioners and hence the essential ingredient to constitute the offence of ‘theft’, i.e., taking the property (timber) from out of the possession of first respondent is lacking.

It is contended that learned Magistrate has mechanically forwarded the complaint to the Police under Sec.156(3) of the Code without even referring to the allegations in the complaint. It is contended that what is involved is only a civil dispute regarding title over the property. Hence it is argued that the complaint and the FIR being an abuse of the process of the law, may be quashed.

# Reliance is placed on the decisions in Shaik Abdul and Another v. Emperor (115 Indian Cases 684) and Varghese v. State of Kerala (1964 KHC 213).

Learned counsel for first respondent contended that in view of the decision of the civil court (referred supra), the de jure possession of the property is with the first respondent, possession of petitioners if any, is only on behalf of the first respondent, its rightful owner as declared by the civil court, and hence removal of timber is from the possession of the first respondent.

# Reliance is placed on the decision in Pyare Lal Bhargava v. State of Rajasthan (AIR 1963 SC 1094) and to Ratanlal and Dheerajlal on the Indian Penal Code, pages 2019 and 2020.

It is also contended that if not ‘theft’ other offences may be involved on the facts and hence interference at the stage of investigation is not required. Leaned Public Prosecutor also has taken that stand in the matter.

It is stated in the complaint that learned Munsiff declared title of the first respondent, directed petitioners to surrender possession of the property within one month and on failure, permitted first respondent to recover possession of the said property through court as per a decree.

It is admitted that petitioners did not surrender possession as directed in the decree; instead, they preferred an appeal and obtained stay of execution of the decree for recovery of possession. Hence first respondent could not execute the decree and get possession of the property.

The appeal was pending and the order of stay was in force when the trees were (allegedly) cut from the said property and on when petitioners removed the timber.

Advocates V.V. Raja, R. Ranjith, T. Sureshkumar appeared for the Petitioner and S. Sreekumar, Manoj Ramaswamy for the Respondent.

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