Colonial Syncretism in Penal Code Definitions of Property Crimes

Abstract This article explains the historical origins of key provisions on theft, criminal misappropriation of property, and criminal breach of trust in the Indian Penal Code 1860. Still in force in many jurisdictions, these provisions originated from three strands of jurisprudence prevalent in colonial India: English ideas of larceny, modified Islamic ideas of theft and embezzlement, and Jeremy Bentham’s ideas on codification. These ideas interwove to produce a syncretic scheme of property crimes. Even today, this scheme accommodates different views as to whether theft should be distinguished from adjacent crimes in terms of actus reus . As the Singaporean case of Ho Man Yuk (2019) reveals, this flexibility allows the colonial-era Penal Code to be used to punish new forms of property appropriation, but at the cost of contested convictions and potentially unfair sentencing. Moving forward, the question is whether these issues are worth confronting, or whether Penal Code jurisdictions are better off overhauling the law, creating a general crime of property appropriation resembling theft in the United Kingdom Theft Act 1968. This modern dilemma is potentially unresolvable. It is rooted in the intellectual interplays occasioned by British colonial rule.