KESAVAN NAIR V STATE OF KERALA, 2005

Case name: Kesavan Nair v State of Kerala[1]

Bench: K. Hema, J.

Petitioner: Kesavan Nair

Respondent: State of Kerala

Judgment Date: 20 January 2005

Judgment Delivered By: K. Hema, J.

INTRODUCTION:

Crime is something that is against society, and therefore, to maintain social order and peace, laws are made. Bharatiya Nyaya Sanhita[2], which succeeded the Indian Penal Code[3], brought several reforms in our criminal law, and this helped the courts in providing justice efficiently. When we think of crime, the offences like murder, theft, snatching, dacoity, etc, come into our mind. Property is something which can be owned, and hence, the protection of property means a lot to a person. When someone dishonestly takes any movable property, and moves that in order of such taking, out of the possession of any person in whom the possession of the property lies, commits the offence of theft. In the language of Bharatiya Nyaya Sanhita, “Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property to such taking, is said to commit theft”.[4] A victim is someone who has suffered some injury due to the act or omission of the accused person, in simple language. Section 2(y)[5] of  Bharatiya  Nyaya Sanhita defines a victim as a person who has suffered any loss or injury caused because of the act or omission of the accused person, and includes the guardian of the legal heir of such a victim.[6] Injury, in simple words, means harm caused to any person in body, mind or reputation.[7] Section 2(14)[8] of Bharatiya Nyaya Sanhita defines injury. As per this definition, injury can be caused to a person when harm is illegally caused to their property. In the light of this, let’s delve into a case study to understand the concept of theft, one of the offences which falls under the category of offences against property.

Keywords: Theft, Bharatiya Nyaya Sanhita

THEFT: AN OFFENCE AGAINST PROPERTY

Theft is dealt with under Section 303[9] of the Bhartiya Nyaya Sanhita, earlier, Section 378[10] Of the Indian Penal Code.[11] The essentials of theft are- (1) dishonestly taking movable property, (2)  movable property is moved dishonestly to commit theft, (3) moving of movable property to taking out of possession of any person, (4) taking out of possession of any person, and (5) without the person’s consent.

BACKGROUND OF THE CASE:

Third respondent, a lawyer by profession, was in possession of the property, after the death of his senior, which belonged to petitioner 1 and petitioner 2. Petitioner 1 and Petitioner 2 wanted the complainant to vacate the building. The third respondent agreed to vacate the building when he gets another place or building to carry out his profession.

FACTS OF THE CASE:

The third respondent received a threat from petitioner 1 and petitioner 2 that if he does not vacate the building, then they will remove the articles and files kept in the office of the complainant. Moreover, they also threatened the complainant that they would destroy the building where the office of the complainant was situated. On receiving this threat, the complainant filed a suit in the Munsiff Court so as to get a temporary injunction against the petitioner 1 and petitioner 2. Munsiff Court issued a temporary injunction against the petitioner 1 and petitioner 2. But, at about 6:00 A.M. on the date of the occurrence of the crime, the complainant went to his office, as he had received information from someone that the petitioners were destroying his building. At the place of occurrence, i.e. where the building was located, he found that the building was destroyed and files, books, furniture, etc, present at the office of the petitioner were missing. Police, after investigation, submitted a charge sheet before the Judicial Magistrate First Class, based on which, Court took cognizance of the offence under Section 380 and Section 451 of the Indian Penal Code (now Section 305 and Section 332( c) of Bharatiya Nyaya Sanhita. Further, the Court issued a summons to Petitioner 1 and Petitioner 2. Therefore, in the present case, the petitioners had filed a petition to quash the charge sheet filed against them by the Court.

 RELEVANT PROVISIONS:

Section 303, Section 305, Section 332 of Bharatiya Nyaya Sanhita[12] (earlier, Section 378, Section 379, Section 380 and Section 451 of the Indian Penal Code[13].

Section 305 of Bharatiya Nyaya Sanhita:

“Whoever commits theft-

(a) in any building, tent or vessel used as a human dwelling or used for the custody of property; or (b) of any means of transport used for the transport of goods or passengers; or (c) of any article or goods from any means of transport used for the transport of goods or passengers; or(d) of idol or icon in any place of worship; or (e) of any property of the Government or a local authority, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”[14]

Section 332 of Bharatiya Nyaya Sanhita:

“Whoever commits house-trespass in order to the committing of any offence-

(a) punishable with death, shall be punished with imprisonment for life, or with rigorous imprisonment for a term not exceeding ten years, and shall also be liable to fine;

(b) punishable with imprisonment for life, shall be punished with imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine;

(c) punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine:

Provided that if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years.”[15]

ISSUE OF THE CASE

Is the charge on petitioners under Section 380?[16] of the Indian Penal Code (now Section 305[17]  of Bharatiya Nyaya Sanhita) maintainable or not?

PETITIONER’S CONTENTION:

To quash the charge sheet under Section 380[18] of the Indian Penal Code, i.e. Section 305[19] Of Bharatiya Nyaya Sanhita: The petitioners contended that from the charge sheet, complaint, and other records, it appears that the sole intention while removing the articles was just to evict the de facto complainant and not to commit theft. The charge under Section 305[20] Cannot be maintained.

JUDGMENT:

The Court held that no offence under Section 380[21] Of Indian Penal Code is made out of the records available in the case. The charge sheet is quashed by the Court.

RATIO DECIDENDI

The court was to give a decision that dealt with the essentials of theft given under the Indian Penal Code. Section 378[22] of the Indian Penal Code (now Section 303[23] of Bharatiya Nyaya Sanhita) defines ‘theft’.[24] The Court took into consideration the term “dishonestly” used in this definition of theft. Thereafter, the Court took into consideration terms like “wrongful gain” and “wrongful loss” to give judgment in this case. The Court contended that proof of removal of movable property by the accused alone is not sufficient to establish theft. Prosecution is required to further prove that the accused had the intention to take the property dishonestly as defined under the Indian Penal Code.

The court further said that theft postulates two intentions: (1) an intention to ‘take’ any movable property out of the possession of another person without the consent of the other person; (2) an intention to cause wrongful gain or wrongful loss by unlawful means of property to which the person losing is entitled. Only if both such intentions of the accused are proved, an offence of theft is established. Since this dishonest intention was absent, the Court quashed the charge made against the petitioner under Section 380 of the Indian Penal Code.

Therefore, in the light of interpretations and references of these provisions, the Court quashed the charge sheet made against the petitioner under Section 380[25] of the Indian Penal Code, i.e. Section 305[26] Of Bharatiya Nyaya Sanhita.

CONCLUSION:

The case helps in understanding the essentials of theft, and it also helps in understanding what actually constitutes theft. Some relevant provisions like Section 303, Section 305, and Section 332 of Bharatiya Nyaya Sanhita[27](earlier, Section 378, Section 379, Section 380 and Section 451 of the Indian Penal Code[28] were taken into consideration by the Court to provide judgment. Apart from this, in the light of these sections, the charge under Section 380 of the Indian Penal Code against the accused was quashed by the Court. It can be understood in the light of this case that when someone dishonestly takes any movable property, and moves that in order of such taking, out of the possession of any person in whom the possession of the property lies, commits the offence of theft. Additionally, the Court also contended that proof of removal of movable property by the accused alone is not sufficient to establish theft. Prosecution is required to further prove that the accused had the intention to take the property dishonestly as defined under the Indian Penal Code. Thus, in the light of this judgment or case, the concept of theft can be understood more efficiently.

REFERENCE(S):

[1] Kesavan Nair v State of Kerala (2005) (3) KLT 391

[2] Bharatiya Nyaya Sanhita 2023

[3] Indian Penal Code 1860

[4] Bharatiya Nyaya Sanhita 2023, s 303

[5] Bharatiya  Nyaya Sanhita 2023, s 2(y)

[6] ibid

[7]Cobrief, ‘Injury definition: Copy, customize, and use instantly’ (cobrief) < https://www.cobrief.app/resources/contract-definitions-library/injury-definition-copy-customize-and-use-instantly> accessed 27 July 2025

[8] Bharatiya Nyaya Sanhita 2023, s 2(14)

[9] Bhartiya Nyaya Sanhita 2023, s 303

[10] Indian Penal Code 1860, s 378

[11]De Facto Law, ‘Theft Under IPC/BNS’ (De Facto Law) <https://www.defactolaw.in/post/theft-under-ipc-bns> accessed 27 July 2025

[12] Bharatiya Nyaya Sanhita 2023, s 303, 305, 332

[13]Indian Penal Code 1860, s 378, 379, 380, 451

[14] Bharatiya Nyaya Sanhita 2023, s 305

[15] Bharatiya Nyaya Sanhita 2023, s 332

[16] Indian Penal Code 1860, s 380

[17] Bharatiya Nyaya Sanhita 2023, s 305

[18] Indian Penal Code 1860, s 380

[19] Bharatiya Nyaya Sanhita, s 305

[20] ibid

[21] Indian Penal Code 1860, s 380

[22] Indian Penal Code 1860, s 378

[23] Bharatiya Nyaya Sanhita 2023, s 303

[24] De Facto Law, ‘Theft Under IPC/BNS’ (De Facto Law) <https://www.defactolaw.in/post/theft-under-ipc-bns> accessed 28 July 2025

[25] Indian Penal Code 1860, s 380

[26] Bharatiya Nyaya Sanhita 2023, s 305

[27] Indian Penal Code 1860, s 378, 379, 380, 451

[28] Bharatiya Nyaya Sanhita 2023, s 303, 305, 332