October 28, 2021

Attempt and Preparation Under IPC

ipc

Introduction 

The Indian Penal Code, 1860 not only consists of punishment for the crime but also it punishes the very attempts at crime. There is a silver lining between attempt and preparation of an offence. In this present article, we shall be making a comparative distinction between the said two.[1] While looking into the relevant case laws.

Steps to crime 

Generally, attempt to commit a crime is been defined as an extremely difficult and intricate branch of a crime. The accused either prepares intentionally or unintentionally to commit a crime or just commits it in a spur of the moment. In these sudden committed crimes, stages of preparation and attempt overlap and fuse into one another. But with crimes that are intentionally planned out, there are 4 below mentioned stages to crime:

  1. Intention
  2. Preparation
  3. Attempt
  4. Commission 

An attempt could be seen as the direct movement to commit the crime just after the preparation is completed. An attempt can also be understand as an “intentional prepared action”. If a man has committed an intentional action to seek a certain object that is to say- the completion of the crime, and if that objective or completion of crime fails due to any reason that is independent of commissioner’s own will, then it is said that the man has attempted to commit that crime. [2]

Meaning of Attempt 

Section 511 of the IPC deals with the attempt of a crime in more formal way without actually defining it. Attempt has not been given a proper and universal meaning anywhere in criminal law. Syed Shamsul Huda in his book titled, “the Principles of Law in British India” states that

“an act or a series of acts constitutes an attempt if the following are fulfilled:

  • If all the steps of the offence or all the important steps of the offence have been completed other than the consequences of the offence. 
  • If the offender has not completed all the necessary steps needed to complete the crime but has proceeded far enough to entitle punishment in order to protect society. 

In order for a crime to constitute an attempt, there must be:

  1. Intent to commit the crime.
  2. Act towards the accomplishment of the crime.
  3. Failure of that act. 

An act will be considered accomplishment on the basis of two things- the means to make sure the act is seen into completion must be adapted and it must be beyond preparation.” 

Section 511 of IPC talks about the nature of the crime in general and Section 307 talks about it in particular nature i.e. attempt to murder. Despite these sections, there is a difference in opinion among jurists and scholars’ regarding what is the scope of attempt on crime. The Allahabad High Court opined that Section 511 cannot be applied in cases of attempt to murder because the same is provided for in Section 307 specifically. On the other hand, the Bombay High Court does not second with this view. In the case of Om Parkash vs. State of Punjab[3], the Supreme Court of India held that “just as stated in Section 511 and in Section 307 as well, the act towards the crime need not be the penultimate act. In this case, the act of the accused to accelerate the death of his wife by denying her food for several days amounts to an act under Section 307.” 

Statutory provisions of attempt

The attempts can be divided in 4 kinds:

  1. Where the attempt and the main offence is punishable in the same manner without any distinction.
  2. When an attempt is merged into the main offence.
  3. Where the attempt are separately made punishable.
  4. When attempts are made punishable in general. 

The first category of offence includes attempts to offences which comes under the category of offence against the state, forces, public peace, election, false evidence, public morality and decency, human body as well as property. 

The second category of attempts is in the cases where the attempt is a part of the transaction. Despite being attempts, crimes are made punishable without using the actual word ‘attempt’. Such offences include abetment, unlawful assembly and criminal intimidation. In offences which are related to coin and against the government, every step of the crime such as the preparation, the attempt and the completion is prima facie punishable. Each step is seen as an offence in itself for the purpose of these offences.

The third category is the attempts which are seen as a separate crime or offence and have their own punishments defined under IPC. Examples include attempt to commit murder, attempt to culpable homicide and attempt to suicide. These offences are punishable independently. 

The fourth categories are other attempts and are defined under Section 511 of IPC. 

Section 511 of IPC is only applicable to a very limited set of offences. It is not applicable to attempts of very grievous crimes, rather it is for attempts to crimes that are not punishable by capital punishment and do not have a set of punishments prescribed in the Indian Penal Code. It is also not applicable to such offences that are punishable by fine only. Attempts to commit offence which are punishable by a special law or local law are also out of the applicability of Section 511. For example, false statement in connection with an election, making the atmosphere dangerous to health and public nuisance. 

Distinction between attempt and preparation 

The difference between attempt and preparation has been a matter of dispute from ages. But there are many tests in demarcating what attempt and preparation is. The main differences between the two of them are:

  • First, preparation is the procurement of the means to attempt the offence while the attempt is the direct movement towards committing the crime right before the commencement of the offence. 
  • Secondly, preparations are not punishable but attempts are punishable except in few cases. 

The reason why preparation is not punishable is given below:

  • Preparations are usually harmless.
  • It is almost impossible to prove that preparation was done in order to commit that particular crime, and even if the preparation of offence was done with malice in mind, one might have changed his mind on the way.
  • If preparation is made punishable by law then number of offences in the statutes would increase drastically
  • Mere preparation of offence does not cause harm or does not raise alarm in the society. 

Mental element in attempt 

Mens rea is the bad intention to commit the crime while the actus reus is a guilty act. In the case of R v Mohan[4] (1976), a specific attempt was defined as the “decision to bring a certain condition to the aim. The question judges must ask themselves when making a demarcation between mere preparations and attempt to commit the crime is usually a question of fact. It is very hard to lay down any hard rules or mechanical set of principles for drawing this line of demarcation.” There have been tests which have been set down. They are discussed below:

The Proximity Test

This test states that “an act or series of acts if considered an offence of all the essential steps that constitute the crime have been committed and the only consequence of the crime has not taken place. The act of attempt should be sufficiently proximate to the crime. It should not be a remote act to the crime. The act should place the accused in direct relationship to the victim and should have contributed to the final act”. This theory originates from the case of Regina vs Eagleton[5] where Justice Baron Parke stated that “a criminal attempt begins when the offender loses all control over the crime by doing that last act”. Many courts are of the opinion that an offender’s action does not or cannot proceed beyond preparation until he has the power to complete that crime. 

Locus Paenitentiae Test

This test or maxim means that “the law provided time to every offender before he is in the grips of the law”. If he is still in the stages in the process of crime where he can undo his crime and not continue with his crime, then the law cannot punish him. If he continues to follows through with his criminal plan or design, it will be said he has crossed the stage of preparation of crime. In a case of Regina vs. Padala Venkatsamy[6], the court did not punish the accused for attempt of forgery despite him having procured all the required material and information for forgery because he does not go beyond the stage of preparation and the law allows from locus paenitentiae. 

Case laws

  • Narayan Das vs. State of West Bengal[7] 

In the case, the accused had undeclared notes sewn in the pants on his trousers and the same was discovered by the customs officer. The court held that the accused went beyond the stage of preparation. The court held that an attempt to take out currency notes is an act punishable under the Sea Customs Act.

  • Bashir Bhai Mohammed Bhai vs. the State of Bombay[8]

In the case, the accused has a complaint filed against him which states that he was in possession of duplicate/fake currency notes. These notes were recovered by authority. The court held that the act had gone way beyond the stage of preparation and thus it was an attempt towards the commission of a punishable offence. 

  • Om Parkash vs. State of Punjab[9] 

In the case, the accused husband deliberately starved his wife to accelerate her death. It was held that his act had amounted to attempt to commit murder under section 307. The court held that, “a person commits an offence under Section 307 when he has an intention to commit murder and acts towards the commission”. The court made a differentiation between the ‘intention to commit an offence’ and ‘the intention or knowledge necessary to make an act an offence’. “In section 511, the expression ‘whoever attempts to commit an offence’ means whoever attends to commit an act with the knowledge necessary to commit the offence. It is similar to the expression in Section 307 that states ‘whoever does any act with such intention or knowledge and under such circumstances that if he, by that act caused death, he would be guilty of murder’”. 

  • Abhayanand Mishra vs State of Bihar[10] 

In the case, the accused falsely showed that he was a graduate. He attempted to appear as a private candidate in an MA examination through a prior permission letter but was debarred from appearing in the same and prosecuted. In this case, the court held that “the attempt to commit an offence begins when all the preparations are complete and he takes a step towards the commission of the offence. It does not matter if this direction towards the commencement fails due to external factors, it is still an attempt.” 

  • Malkiat Singh vs State of Punjab[11]

In the case, a truck carrying paddy from Punjab was stopped by a sub-inspector and was taken into custody around 18 miles from Delhi border. He was accused for violating the Punjab Paddy order. The driver himself admitted that he was transporting the paddy to Delhi. The court held “the driver was not guilty of violating Section 7 of the Essential Commodities Act and Paddy Export Control Order as he still has not crossed the stage of preparation and still had time to change his mind.”

The court commented in the case that, “preparation consists of arranging the means necessary for the commencement of the offence. On the other hand, attempt is a direct movement towards the commission after preparations have been made”. The court set down the test to demarcate the two is that “if the act in question is such that if the offender changes his mind, the act and the previous acts would be rendered harmless.” 

  • State of Maharashtra vs. Mohammed Yakub[12] 

In the case, the accused tried to smuggle silver out from India. They were convicted for the violation of the Foreign Exchange Regulation Act, Import as well as Export (Control) Act, 1947 and Customs Act, 1962. While the appellate court acquitted the accused, the Supreme Court of India convicted them for an attempt to export silver. The court held that “for an act to be considered an attempt, there must be three ingredients. First, there must be an intention to do the act. Second, some act must have been done which would have been done towards the commission of the act and third, the act must be proximate to the crime. Proximity is not with regards to time and place but with regards to intention. The act must show an intention that is distinguished from mere desire or object to commit the particular offence. It must be seen in conjunction with other facts and circumstances and not necessarily in isolation. They also established that what constitutes an attempt depends largely on the facts of the case”. 

Conclusion

In the present article, we have looked into attempt and the difference between attempt and preparation along with relevant cases. To conclude, we can say that, for a person to go from a stage of preparation to a stage of attempt, he must first have passed the stage of preparation completely and there shall be no chance of turning back. There should be the existence of three major ingredients namely the intention to commit the crime, an action must be done towards the commission of the crime and the act must be proximate and not remote to the crime. 


[1]http://14.139.60.114:8080/jspui/bitstream/123456789/17337/1/027_Law%20relating%20to%20Attempts_Need%20for%20a%20Fresh%20Look%20(395-409).pdf

[2]https://www.researchgate.net/profile/Bibhuti_Mahakul/publication/301422888_Politics_fo_Terrorism/links/57160f1708aed2dd5cfc6354.pdf#page=88

[3] AIR 1961 SC 1782

[4] [1976] QB 1

[5] [1855] 6 Cox C.C. 559

[6] 1881 3 Mad 4.

[7] (2009) 3 CalLT 586 (HC)

[8] AIR 1960 SC 979

[9] Supra, Note 3

[10] AIR 1961 SC 1782

[11] AIR 1970 SC 713

[12] (1980) 3 SCC 57

Author- Kanhaiya Singhal (Faculty of Law, PES University)

Instagram

Leave a Reply