Difference Between Theft, Robbery And Extortion And Procedure Established For The Same In Indian Cr.P.C.
Difference Between Theft, Robbery And Extortion And Procedure Established For The Same In Indian Cr.P.C.
Introduction
Earlier there was no uniform law of criminal procedure for whole country. There were separate acts which were applicable in different provinces and presidency towns. The acts which were applicable in presidency towns were first consolidated by the Criminal Procedure Supreme Court Act, 1852 and of provinces with Criminal Procedure Code, 1861. Later a uniform law of procedure for whole of India was consolidated by the Code of Criminal Procedure, 1898 which has been amended by various amending Acts. The amendments were extensive and were intended to simplify procedure and speed up trails as far as possible.
Theft, Robbery, and Extortion- Definition, and difference
The definition and punishment for Theft, Robbery and Extortion is given in The Indian Penal Code, 1860, whereas the procedure is given under The Code of Criminal Procedure, 1973.
Section 378. 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.
Based on this definition, following are the essential element of Theft[2] -
- Dishonest intention to take property - There must be dishonest intention on the part of the offender. If the intention of the offender is not to cause a wrongful loss or wrongful gain, he does not commit theft even if he takes the property without consent.
For example: A, believing in good faith, a property in possession of B, to be his, takes it from B, it is not theft.
In Pyarelal Bhargava v. State AIR 1963, a govt. employee took a file from the govt. office, presented it to B, and brought it back to the office after two days. It was held that permanent taking of the property is not required, even a temporary movement of the property with dishonest intention is enough and thus this was theft.
- The property must be movable - As per Explanation 1 of section 378, as long as a thing is attached to the earth, not being movable, is not subject to theft. However, as soon as it is severed from the earth, it is capable of being the subject of theft.
In White's case, 1853, a person introduced another pipe in a gas pipeline and consumed the gas bypassing the meter. Gas was held to be a movable property and he was held guilty of theft.
- Property must be taken out of possession of another - The property must be in possession of someone. A property that is not in possession of anybody cannot be a subject of theft.
In HJ Ransom v. Triloki Nath 1942, A had taken a bus on hire purchase from B under the agreement that in case of default B has the right to take back the possession of the bus. A defaulted, and thereupon, B forcibly took the bus from C, who was the driver of the bus. It was held that the C was the employee of A and thus, the bus was in possession of A. Therefore, taking the bus out of his possession was theft.
- Property must be taken without consent– The property must be taken without the consent of person possessing it.
In Chandler's case, 1913, A and B were both servants of C. A suggested B to rob C's store. B agreed to this and procured keys to the store and gave them to A, who then made duplicate copies. At the time of the robbery, they were caught because B had already informed C and to catch A red handed, C had allowed B to accompany A on the theft. Here, B had the consent of C to move C's things but A did not and so A was held guilty of theft.
- Physical movement of the property is a must - The property must be physically moved. It is not necessary that it must be moved directly.
In Bishaki's case 1917, the accused cut the string that tied the necklace around the neck of a woman, because of which the necklace fell. It was held that he caused sufficient movement of the property as needed for theft.
Can a person do theft of one’s own property?
In Rama's case 1956, a person's cattle was attached by the court and entrusted with another. He took the cattle out of the trustee's possession without recourse to the court. He was held guilty of theft. So a person can do theft of one's own property.
Section 379 Punishment for theft -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.
Section 383 Extortion-Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property, or valuable security or anything signed or sealed which may be converted into a valuable security, commits "extortion".
So basically, extortion means threatened to expose a clergyman, who had criminal intercourse with a woman of ill repute, unless the clergyman paid a certain amount to him. He was held guilty of extortion.
- Dishonestly induces a person so put in fear to deliver to any person any property- Dishonest inducement means that the person would not have otherwise agreed to part with his property and such parting causes him a wrongful loss. Extortion can also happen in respect of the valuable security or anything signed that can become a valuable security.
In Romesh Chandra Arora's case 1960, the accused took a photograph of a naked boy and a girl by compelling them to take off their clothes and extorted money from them by threatening to publish the photograph. He was held guilty of extortion.
Section 384 Punishment for extortion-Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 390 Robbery-In all robbery there is either theft or extortion.
When theft is robbery -Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery-Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person, so put in fear then and there to deliver up the thing extorted.
Explanation-The offender is said to be present if he insufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Thus, a theft becomes a robbery when the following two conditions are satisfied-
1) when someone voluntarily causes or attempts to cause
a) death, hurt, or wrongful restraint or
b) fear of instant death, instant hurt, or instant wrongful restraint
2) the above act is done
a) in order to the committing of theft or
b) committing theft or
c) Carrying away or attempting to carry away property obtained by theft.
For example, A holds Z down, and fraudulently takes Z's money from Z's clothes, without Z's consent. A has committed theft and in order to commit that theft, he voluntarily caused wrongful restraint to Z. Thus, A has committed robbery.
Extortion becomes a robbery when the following three conditions are satisfied -
- when a person commits extortion by putting another person in fear of instant death, hurt, or wrongful restraint, and
- such a person induces the person put in such fear to deliver the property then and there and
- The offender is in the presence of the person put in such fear at the time of extortion.
For example, A meets Z on the high road, shows a pistol, and demands Z's purse. Z, in consequence, surrenders his purse. Here, A has extorted the purse from Z by putting him in fear of instant hurt and being present at the time of committing the extortion in his presence, A has committed robbery.
Section 392 Punishment for robbery- Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
Section 393 Attempt to commit robbery- Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
Theft & Extortion Distinguished
THEFT
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EXTORTION
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1) Theft has been defined under Sec 378 of the I.P.C.
2) In theft, the movable object is taken out of the possession of the person without the consent.
3) In theft, only movable properties are considered to be taken.
4) In theft, sheer force is not used.
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1) Extortion has been defined under Section 383 of the I.P.C.
2) In extortion, a wrongful obtainment of the consent takes place.
3) In extortion, immovable object is also subject to be taken.
4) In extortion, the property is obtained by putting the fear of instant hurt or death in the mind of a person who is being subjected to extortion.
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Procedure established in Cr. P. C
Theft is a cognizable and non-bail able offence trailed by any magistrate …. punishment of 3 years or fine or both.[3]
Robbery is cognizable and non-bail able offence trailed by magistrate 1st class …punishment of 10 years (rigorous imprisonment) and fine.[4]
The procedure established can be best explained with the help of an illustration
Illustration
3 person (A, B and C) entered into X’s house to commit theft at night. While committing theft X wakes up and comes into the room where A & B were present, seeing this C somehow at gunpoint forces X to get all the valuable items from the locker. After which all 3 flew away. Later X goes to nearest police station and files an F.I.R to the officer in charge of the police station. After investigation and search the police find all 3 thieves hiding in a house located in remote area of the city.
Following procedure is suggested in Cr.P.C after the arrest.
- A B & C were gone to committee theft but it turned into a robbery when there was instant fear of death or hurt to X.
- A warrant has already been introduced by a magistrate.
Step 1: ARREST
Section 210 discusses procedure to be followed when there are a complaint case and police investigation in respect of the same offence
Section 41 suggests any police officer have complete authority to arrest without magistrate order and without any warrant any person who has committed a cognizable offence.
Illustration: Here as A, B & C have committed a robbery which is a more serious cognizable offence than theft so police have complete power to arrest without any warrant.
Note: Any person who is brought in and is locked up there is obviously under arrest CBI v. Kishor Singh JT 2010 (12) SC 489: (2010) 11 SCALE 291: 2010 (7) Supreme 696
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Section 41B suggest procedure of arrest and duties of officer making arrest ….if reasonable suspicion or credible information exist then officer has the authority to arrest the person without the order from magistrate and without any warrant …
Illustration: As from F.I.R police have credible information to make arrest of A, B & C.
Section 44 suggest that a magistrate can also perform the arrest or order to arrest any person irrespective of the fact whether the offence has been committed in presence of magistrate or not.
Illustration: So here if offence of robbery has been committed in presence of magistrate or even not in presence of magistrate then also he have power to arrest at any time during the offence has been committed.
Section 50 person arrested is to be informed about the offences for which he is being arrested
It says that police officer shall give full particular of offence for which he is arresting or grounds for such arrest.
Illustration: So here in this instant A, B & C should be informed that they are arrested for robbery under section 390 of I.P.C.
Section 56 deals with person who is arrested without any warrant then without any delay he is bound to present the suspect before the magistrate or officer in charge of the police station
Section 57 deals with only 24 hours custody if a person is arrested without warrant only by special order of magistrate under section 167 the time period of custody can be exceeded.
Section 46 suggest how arrest is made
Illustration: Here in this illustration the police officer making arrest should actually touch or confine the body of 3 thieves
Section 46(2) suggests if such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to affect the arrest
Section 47 read with section 100 [applicable only when warrant is present] suggest how search of place of person sought to be arrested is done.
If warrant is not present then the search should be conducted in presence of witness or in presence of respectable inhabitances of that locality.
Step 2: SEIZURE
Section 102 suggests police can seize any property which is alleged or suspected to have been stolen or is found under circumstances that it creates suspicion.
Section 51 and Section 52 talk about search of arrested person and seizure of offensive weapon.
Section 51 (warrant required) says that other than necessary wearing appeal every other article found should be seized by the police officer and section 52 says police officer is supposed to seize any kind of offensive weapon found from the accused and shall be presented in the court.
Illustration: Here in this instant after arrest of thieves police officer has right to seize all articles found with them including the gun (used during the commission of crime) and these all articles are required to be presented in court.
SECTION 94 deals with search of place suspected to contain stolen property
A District Magistrate, Sub-Divisional Magistrate or Magistrate of 1st class has reason to believe that a particular place is used for deposit or sale of stolen good then he has power to authorize police to necessary action as prescribed in this section.
Illustration: Here After the arrest of accused the Magistrate can order to search a particular place for recovery of the stolen property.
Step 3: Commencement of Proceeding and Framing of charges
Section 181 talks about place of trial in case of certain offences
Section 181 subclause (3) any offence relating to theft, robbery should inquire and tried by the court within whose local jurisdiction the offence has been committed.
Illustration: Here in this instant A, B & C will be trialed in the court of Ist class Magistrate who has jurisdiction over the place where the offence has been committed.
Step 4: Framing of Charges
Section 211: Content of charges.
This section suggests the way in which the charges are framed from an offence committed.
Here for the illustration through section 211(2) robbery charges will be framed against A, B & C.
Section 212: charge shall contain particulars as to time, place and person of the alleged offence.
Section 228: Framing of charges. After consideration and hearing the judge is of opinion that their grounds for presuming that the accused has committed an offence, the charges shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tired.
Illustration: A, B, and C were produced in the court for trial and judge framed the charges of robbery against them and then they are whether they plea themselves as guilty or not if yes then the sentence is given straight a way if not then trail starts.
Step 5: TRIAL
Section 225, 226 says that in every trial, the prosecutor should open case in Court of Session and he describes the charges brought against the accused and stating the evidence he proposes to prove the guilt of the accused.
Section 238 and 240(framing of charges by Magistrate [when cases is instituted on police report])
Section 243: if the accused is pleaded guilty the magistrate shall record the plea and should convict him thereon.
Illustration: If A, B & C plead guilty then through section 243 sentence is given by magistrate for offence of robbery
Section 242: Evidence for prosecution …if accused does not plead guilty and pleas to be tried …..The magistrate shall fix a date for examination of the witness.
Section 243: Evidence for defense …then accused shall enter in his defense and produce his defense against the offence framed against him.
Section 243(2) then cross-examination of a witness is done by both prosecution and defense.
Step 6: CONCLUSION OF TRIAL
Section 248:
(1) If the magistrate founds him not guilty.
(2) If magistrate founds him guilty.
Illustration: Here A, B, and C were found guilty of the offense of robbery at the conclusion of the trial.
Step 7: JUDGMENT
SECTION 353: Judgment is pronounced in open court by presiding officer immediately after the trial ends.
Illustrations: A, B and C will face rigorous imprisonment for a period of ten years.
Conclusion
After working thoroughly and understanding every aspect of procedure established in Code of Criminal Procedure, 1973 we have come up with the conclusion that the criminal code that prevails over India has been made in very detailed and technical manner truly full-filling the basic idea behind any criminal law that “no innocent shall be punishment, even though all the guilty people are left out”. Cr.P.C is truly a remarkable work of the brilliant mind that has made such a law of great depth and brilliance.
*Disclaimer: The contents of the blog are not intended to convey any legal advice to the reader neither the blog creates any attorney-client relationship. You may contact an enrolled legal practitioner for assistance with your legal needs.*
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