A Crime of Theft – Vedika Pareek
Let’s consider a situation- If in the process of making use of B’s car without his consent, A receives a text from B allowing him to use the car, has A committed the crime of theft?
For a crime of theft in the IPC, the following elements need to be present:
1. Moveable property in the possession of a person.
2. Dishonest intention on the part of the accused to take such property.
3. Absence of consent from the person in whose possession the property is.
4. Movement of such property in order to such taking.
Notwithstanding the question about possession, this article seeks to examine the role of consent and the role of mens rea in the offence of theft. Additionally, it is settled that the gain or loss from theft need not be permanent, even a slight movement of one’s property without consent and with a dishonest intention can constitute theft, and will therefore not be discussed in the article.
The impact of consent on criminal liability
‘Consent’ in law is an agreement to the invasion of a right appertaining to the person so agreeing. A valid consent is an act of reason, it is accompanied with deliberation of the mind, weighing, as in a balance the good and evil on each side. For an act to qualify as consent, there needs to be an active will in the mind of a person who is permitting a thing, with knowledge of what he is agreeing to. It is distinguishable from mere submission, want of dissent or acquiescence. This spirit of consent is also found in its use in various Indian laws such as in Section 375 of the IPC or Section 13 of Contact Act. As per Section 90 of the IPC, consent given by a person under fear of injury, or under a misconception of facts; or if consent is given by a person who is of unsound mind or intoxicated and thereby unable to understand the nature and consequence of that to which he gives consent, is not valid consent.
In cases where the right in question is alienable, consent is a defense against criminal and civil liability. This is not always true for bodily offences but it is true for rights in property. This is why the owner of a car can sell, rent or transfer their rights in the car legally. Therefore, in cases of property offences it is a good defense that there is no injury to any right when the act of injury is itself consented to by the owner of the right. This complication becomes simpler in the case of theft wherein, as per its definition in Section 378 of the IPC, the absence of consent while moving property is an essential element in the crime. Therefore in the presence of a valid consent a movement of property, even with dishonest intention would not classify as theft under the IPC.
In the case where A takes B’s car, and obtains consent from B only after the taking of the car has been executed- can B’s later consent be used as a defense from criminal liability? In my opinion, no. As per Section 378, theft is determined at the point of the movement of property- if the movement was without consent and with a dishonest intention, the crime of theft is made out. So there was no consent, was there a dishonest intention?
A’s elusive mens rea
Did A take the car with dishonest intention? For A’s act to fall under the IPC provision for theft, the determination of A’s dishonest intention towards the property is essential. Where no dishonest intention can be attributed to the accused, there can be no conviction for theft.
The question whether the accused had dishonest intention is one of fact. A guilty intention may be inferred from the facts proven. Every man is presumed to intend the natural consequence of his act and it is from the consequence that the court has often to presume the intention of the accused in doing a particular act. If wrongful loss is caused then it must be presumed that the act was done with the intention of causing wrongful loss.
To a bystander, A is driving around in B’s car, with the knowledge and consent of B. Does this appear to be a crime? He may have taken the car without B’s consent, but subsequently A received B’s approval to use his car, can we say for sure if B suffered a wrongful loss or if A made a wrongful gain? On the other hand, one could also argue that it is clear that A took the car without explicit consent, A had the option and the resources to take B’s consent and chose not to, and by attempting to use another’s property without their consent he causes a wrongful gain to himself, he has dishonest intention and this is theft. One can never be too sure either way.
The emphasis on ascertaining the accused’s mental element invites many interpretations of an event, some more reasonable and better argued than the ones I have presented, but which ultimately creates confusion around the true nature of events and makes the determination of a crime complex. But this is with good reason since if there was no requirement for ascertaining mens rea, A would be criminal just from his conduct and it would be irrelevant that A had to take B’s car for an emergency, or that A assumed that he has an understanding with B regarding the use of his car. The judgment of mental element is essential to prevent the grouping of innocent action as a crime, for example if a doctor had to perform emergency amputation of a limb on someone without their consent, the true nature of the act would only be revealed after analysing the intention behind the act. Therefore even as the focus on mens rea is often problematic, the exercise of questioning mens rea (in the presence of a crime) shines light on important aspects of the event which should not go unnoticed.
 Shamsul Huda, ‘Principle of the Law of Crimes’, Lecture X, pg-331.
 (1865) 22 Cal 1017 (1024) (FB); AIR 1967 Raj `90 (193); 1967 Cri LJ 1053.
 AIR 1960 Andh Pra 569 (571).
 AIR 1961 Pat 362 (36