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Bharatiya Nyaya Sanhita, 2023 Chapter XVII · Of Offences Against Property
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Bharatiya Nyaya Sanhita, 2023 — Section 306

Theft by Clerk or Servant of Property in Possession of Master

Section 306 punishes theft committed by a clerk or servant (or a person employed in that capacity) in respect of property that is in the possession of his master or employer. The punishment is imprisonment of either description for up to seven years, and the offender is also liable to fine. The wording is the same as IPC Section 381.

Please note: This page reflects our understanding of the law as of the date it was last reviewed. Parliament, the State Legislatures, and the courts continue to amend and interpret this law, and this page may not yet reflect the most recent change. Please verify the current text of the law independently, and consult a licensed advocate for advice on your own matter, before relying on this page.

Corresponding Provision Under Prior Law

Verified against the National Crime Records Bureau’s official BNS–IPC concordance (Sankalan Portal) and cross-checked directly against the bare text of both Acts. Section 306 maps to one section of the old Indian Penal Code, 1860, and is classed as Exact:

BNS 306CoversIPC, 1860 equivalentCategory
306Theft by clerk or servant of property in possession of masterS.381 “Theft by clerk or servant of property in possession of master”Exact

The two statutory texts were compared word by word and are identical: “Whoever, being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” The marginal heading is also the same. There is no change in the ingredients, the maximum imprisonment (seven years) or the liability to fine.

Quick Reference

Sourced from the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and Section 359 of the BNSS.

Punishment: imprisonment of either description for up to 7 years, and liable to fine (the First Schedule records “Imprisonment for 7 years and fine”).
Cognizable · Non-bailable · triable by any Magistrate · compoundable only with the permission of the Court (BNSS Section 359, second table), by the owner of the property stolen.

Statutory Text (Verbatim)

Whoever, being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Source: Bharatiya Nyaya Sanhita, 2023 (Act No. 45 of 2023), as published in the Gazette of India Extraordinary.

Explanation & Illustration (Lexovia's Commentary — Not Statutory Text)

The offence as a whole

Explanation (Lexovia's Commentary)

Section 306 is an aggravated form of theft. It applies when three things come together: the accused is a clerk or servant, or is employed in the capacity of a clerk or servant; he commits theft (every ingredient of Section 303(1) must be present: dishonest intention, movable property, possession of another, no consent, moving in order to take); and the property is in the possession of his master or employer. When these are satisfied the ordinary theft punishment of Section 303(2) is replaced by imprisonment of either description for up to seven years, plus liability to fine.

The words “clerk or servant” are not defined in Section 2 of the Sanhita, but Section 3(3) contains an Explanation that a person employed temporarily or on a particular occasion in the capacity of a clerk or servant is a clerk or servant within the meaning of that sub-section. The present section itself reaches a person “employed in the capacity of” a clerk or servant, which points to the nature of the role rather than the job title. Section 3(3) also provides that property in the possession of a person’s spouse, clerk or servant, on account of that person, is in that person’s possession within the meaning of the Sanhita — so property held by an employee for the employer may still count as being in the employer’s possession.

The possession requirement is central to this section. Section 306 covers property that stays in the master’s possession even though the employee has access to it — cash in the till the employee minds, goods on the shop shelves, papers in the office. Section 3(3) treats property in the possession of a person’s clerk or servant, on account of that person, as in that person’s possession, so property the employee minds for the employer can still be property “in the possession of his master or employer”; Illustration (d) to Section 303(1), which speaks of a servant entrusted with the care of the master’s plate who dishonestly runs away with it, without consent, is a case of theft. Criminal breach of trust by a clerk or servant (Section 316(4)) is a separate provision, which speaks of a clerk or servant “entrusted in such capacity with property, or with any dominion over property”. The text of the two sections does not itself draw a line between them, and this page does not state one; which section fits depends on the facts.

The punishment is imprisonment of either description (rigorous or simple, at the Court’s election under Section 7) for a term which may extend to seven years, and the offender is also liable to fine. This is more severe than the up-to-three-years base tier of Section 303(2) and matches the tier of Section 305. Under the BNSS First Schedule the offence is cognizable, non-bailable and triable by any Magistrate. It appears in the second compounding table of BNSS Section 359: the owner of the property stolen may compound it, but only with the permission of the Court before which the prosecution is pending.

Illustration (Lexovia's Own Example)
Deepa works as a cashier at a stationery shop. One evening, while the shopkeeper is at the back, she takes ₹5,000 from the open till, which remains in the shopkeeper’s possession, and puts it in her handbag, intending never to return it. Deepa is a clerk or servant of the shopkeeper, the money was property in her employer’s possession, and she took it dishonestly and without consent. She has committed theft as a clerk or servant under Section 306, punishable with imprisonment which may extend to seven years and liable to fine. (Whether a cashier who minds the till is also “entrusted” within Section 316(4) is the question noted above, which the two texts do not settle.)
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Related / Cross-Referenced Sections

FAQs

Who counts as a clerk or servant under Section 306?

The section covers a person who is a clerk or servant and also a person employed in the capacity of a clerk or servant. Section 3(3) adds that a person employed temporarily or on a particular occasion in that capacity is treated as a clerk or servant for the purposes of that sub-section, which is consistent with the concern being the role performed rather than a formal designation.

What is the difference between theft by a servant and criminal breach of trust by a servant?

Section 306 applies when the employee commits theft of property that is in the employer’s possession. Criminal breach of trust by a clerk or servant (Section 316(4)) is a separate provision that speaks of property or dominion over property with which the clerk or servant is entrusted. The text of the two sections does not itself draw a line between them, and this page does not state one; which section fits depends on the facts.

What is the punishment under Section 306?

Imprisonment of either description for up to seven years, and the offender is also liable to fine. This is higher than the up-to-three-years base punishment for ordinary theft in Section 303(2).

Can the employer settle the matter and compound the offence?

Yes, but with the Court’s permission. Section 306 appears in the second table of BNSS Section 359, which lists offences compoundable by the owner of the property stolen only with the permission of the Court before which the prosecution is pending.

Is Section 306 bailable?

No. Under the BNSS First Schedule it is cognizable and non-bailable, triable by any Magistrate.

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