August 17, 2021
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Attempt and Preparation in Indian Penal Code

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Author: Sanjoli Verma

“There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”

― Charles-Louis de Secondat

-Introduction-

 Criminal law is an assemblage of statutes and rules, regulations that characterises actions denied by the democratic state since it compromises and damages public security and government assistance and that makes discipline to be forced for the commission of wrongful acts. The state ensures welfare and safety to all its citizens. Criminal law differs from common/civil law, whose accentuation is more on contest goal than in discipline.‘Attempt’ isn’t characterised in the Indian Penal Code. Section 511 just deals with attempts at crimes. For example: ‘A’ makes an Attempt to take some significant things by breaking a case and finds in the wake of opening the container, that there isn’t anything in it.

“Crime is committed under either premeditation or” extemporaneous. In the latter was the offender has 4 stages i.e,

  1. Creation of purpose or intention  to commit the crime
  2. Preparation for commission of the offence
  3. Attempt to commit it
  4. If in any case, the 3rd stage is completed, then commission of the intended offence i.e accomplishment.

Criminal law generally does not penalises the upper two stages and mere intention to complete crime is beyond the purview and area of criminal law. It is very difficult to peek inside a person’s mind and judge his intentions and prove the evil actions but the man can give up his ideas and intentions. It is based on the principle that law has evolved under which only those intentions are punishable which come with some express words or act which is aimed at achieving the intention. The stage of preparation involves devising a plan or arrangement to carry out the commission is also not punishable as discussed in the case of Kailash Chandra Pareek v state of Assam. It would be possible to establish that the preparation was driven by the intentions to commit the crime, who could later backtrack and decide not to do so, either because of a change of mind or out of fear of consequences or punishment. The third and fourth stages are the direct movements to commit the crime and hence it is always punishable and called a substantive offence.  Section 511 In Om Prakash vs State of U.P. case  Apex Court has clearly held that like section 511 & 307 to the act need not be a penultimate action.

 What is an attempt?

 Section 511 gives discipline to an individual who ‘performs any demonstration towards the commission of the offence’. “An ‘Attempt to wrongdoing’ is the point at which somebody attempts to carry out wrongdoing yet falls flat. An attempt to submit an offence, under the IPC, is by all accounts an immediate development towards the commission of the offence, which, because of certain interferences out of the hand of the practitioner, remained unaccomplished. Section 511 reveals that there are three essentials of the offence of attempt to commit an offence that is required to be proved by the prosecution to secure the conviction of a perpetrator.

The  Apex Court in Aman Kumar v State of Haryana held that the word ‘Attempt’ should be seen with ordinary meaning. Neither a mere intention nor arrangement, no matter how effective and blameworthy it might be, will amount to a crime unless some steps have been taken to accomplish the intended crime.“Not every act in a series of acts committed in the directing Crime amounts to an attempt and it is still in the stage of intention or within the stage of preparation, it does not attract criminal liability. A criminal attempt not only poses a threat to” physical or protective safety but also violates the right to security. This in itself constitutes damage that criminal law seeks to punish. The criminal liability for attempts can be justified even if there is no harm. Attempting to commit a crime poses no less danger to the interests protected by law than the committed crime as stated in the case of Koppula Venkat Rae v State of Andhra Pradesh.

-When does preparation end and attempt begins?-

On many occasions, Indian courts have careworn that exists a skinny line between the practice for preparation and an attempt, Though it is tough to differentiate between them. But one of these undertakings is vital as, ordinarily, arrangements to dedicate an offence, as stated earlier, do now no longer entice crook liability. A doer will be charged under criminal law as soon as he via his act or a sequence of acts attempt his evil intention. It is arguable as to when the preparation has ended and the real attempt has begun. This query is in particular vital in conditions whilst the attempt has been interrupted at a few stages. The query as to whether or not only those acts devoted might fall beneath the insurance of section 511, which needs to be a penultimate or very last act to allow the glory of the offence. This element was taken into consideration via the case of Abhayanand Mishra v State of Bihar in the supreme court of India. The defendant wanted to appear for the MA exam for which he forged fake documents/certificates and submitted them to the University of Patna.  Initially, the university accepted his documents but later they found out about the fraud and took action.

The lower court only convicted him for defrauding thus the matter eventually reached the Supreme Court and the court dismissed the applicant’s allegation that he had not exceeded the preparatory stage for “cheating” the university and found the defendant guilty of committing a crime against Section 420, read with Section 511 Preparation was completed when the defendant was preparing the application for submission to the university and at that moment he mailed it, stepped into the area of an attempt to commit the offence of “fraud”. The supreme court summarised the scope of section 115 in ‘State of Maharashtra v Mohammad Yakub’: “A person commits the offence of ‘attempt to commit a particular offence’ when: (i) he intends to commit that particular offence, and (ii) he, having made preparations and to commit the offence, does an act towards its commission, such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.”

The previous principle enunciated by the Supreme Court, according to which the interrupted act does not have to be the last act to complete the contemplated offences, but could be at any stage of the preparation stage, was reaffirmed by the higher court in Sudhir Kumar Mukherjee v West Bengal. Also, in this case, the defendant’s defence was that the action carried out by the defendant could be interpreted on the stage of preparation and that the stage of attempt has not been reached.

An employee forged signatures of his superior to show a false delivery but taking Abhayanand Mishra case in view the Supreme Court held that the very fact that a challan had been prepared and that the initials of the scam. The defendant had obtained the security code in the challan showed that the defendant had taken the final step to commit the crime of cheating. He argued that although “it was true that the defendant had not put his signature and stamp on the challan, which was necessary for the supplier to claim payment for the supply of limestone to the company,” the defendant’s facts had passed the preparation stage and entered the scope of the attempt, for which the defendants were convicted of committing the crime of fraud under section 420 is read with section 511.

-Tests to determine whether an act is a mere preparation or an attempt to commit a crime-

At which level an act or series of acts towards the intended commission of an act is undertaken would be an attempt to commit a crime. Some principles have been developed to solve this problem:

  • The Proximity  Rule:  : The proximity test in relation to time, intentions and actions, examined the extent to which the defendant was close to completing this crime. The difference is the distance between preparing for the offence and successfully completing it. In the ‘Commonwealth v Jerry Hamel case’, it was found that the approximation rule’s amount to be analysed, not what has already been done, is being analysed. The usual portrayal of immediate action is found in R vs Taylor case in which A was found struck by a match behind a haystack which he put out when he realised he was being watched and found guilty of attempting arson in a haystack. If he rather had just bought a box of matches he would not have been convicted of attempted arson, however obvious it may be that he intended to set the haystack on fire when he bought that match box.

 (b) The Doctrine of Locus Poenitentiae: Deliberately withdrawing before the commission or attempting to commit the crime is referred to as mere preparation for the commission of the crime and not a legal obligation. The locus penitential doctrine refers to the possibility that a person who, making preparations to commit a crime, actually detracts from committing it, due to a change of opinion or any other type of compulsion or fear, amounts to a mere preparation and not an attempt, if the person, by his own will, renounces the idea of committing a crime before the criminal act is carried out, a doctrine that served as the basis for the Supreme Court to order the acquittal of the driver. and a truck attendant convicted by a trial court of attempting to smuggle rice out of Punjab in Malkiat Singh against the state of Punjab.

 (c)“The Equivocality test:  is used to distinguish between preparation and attempt in criminal proceedings. If a person’s behaviour in itself shows that the person actually intends to commit a crime without any reasonable doubt, then the behaviour is a criminal attempt to commit that crime.” An action is obvious if it clearly states the goal towards which it is directed. The act of commissioning a particular criminal offence occurs when an accused does any act which constitutes a step in the commissioning of that criminal act & to carry out such a criminal act.

The ambiguity test was discussed in State vs Parasmal & others in Rajasthan court, which states that it is a “continuation of the proximity rule and the doctrine of locus Poenitentiae suggests that an act to commit the offence would” constitute an attempt to commit the offence if, only if it clearly indicates the perpetrator’s intention to achieve the criminal goal. If what is being done clearly indicates that the goal it is directed at is an attempt then otherwise, it is just a preparation. In other words, the defendant’s steps or actions must speak for themselves.

 (d) Attempting Impossible Act: “An impossibility may arise due to legal impossibility because an act carried out by the accused, for reasons unknown to him, is not a crime” as said in Haughton v Smith, in Partington v Williams due to the physical impossibility of the accused to commit the alleged crime, whatever the means used or as said in Haughton v Smith 6that impossibility being caused due to ineptitude or ineffectiveness to commit the alleged crime. At one time, it was assumed that it would not be a crime if a person tried to do something, which in fact was impossible.

However, the legal framework related to the right of attempts outlined in the IPC does not specifically deal with an attempt to perform an act that is impossible to do. The crucial aspect is the person’s belief and intention that precedes his action to perform a particular act. It does not matter whether it is after breaking a box to steal the jewels that he thinks are inside it, or the person who steals someone else’s pocket to take whatever value he finds inside, both people find their intentions incapable of being fulfilled.

-Tests and factors determining intention- 

The Supreme Court in Hari Kishan & Anr vs Sukhbir Singh & Ors considered the situation of two parties who inflicted serious and minor injuries on each other. Punjab and Haryana high court allowed probation of the defendant on good behaviour. The case reached Apex Court where it observed – “The intention has to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, the manner in which it is used, the motive for the crime, the severity of the blow, the part of the body where the injury is inflicted, are some of the factors that may be taken into consideration to determine the intention”. In Bappa alias Bapu v State of Maharashtra the court observed that whether the intent was to kill or to know that death would be caused is a matter of fact. It depends on the facts and circumstances of a particular case. As for the accused’s intent, that intent can be inferred from other circumstances and in some cases even established without reference to actual wounds.

Test for Ascertaining Preparation —Attempt: the supreme court in the Malkiat Singh case said that “a matter of law, a preparation for committing an offence is different from an attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. In order that a person may be convicted of an attempt to commit a crime, he must be shown first to have had an intention to commit the offence, and secondly, to have done an act that constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity of distinguishing between acts that are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it.”

In-State of Madhya Pradesh v Saleem @ Chamaru it was stated that It is adequate for a court to legitimize a conviction under section 307 if there is a goal combined with some show demonstration in its execution. A court has examined the demonstration, paying little heed to its result, was finished with expectation or information and considering the present situation expressed in section 307. A litigant charged under section 307 in this manner can’t just legitimacy quittance for the wounds delivered by him on his casualty were in the idea of a simple injury.

Law of Attempt Relating to Sexual Crimes or Sexual Offences – The distinction between the stage of preparation and the attempt has always been a determining factor in conviction and punishment in cases of sex crimes or sexual offences. In State of Maharashtra v Rajendra Jawanmal Gandhi, an eight-year-old girl was sexually assaulted by the accused in his car and was convicted by the trial court with strict punishments. Like this many judicial decisions and debates have been initiated because of this distinction.

-Conclusion-

 As the saying is “a guilty mind is not only required to be a criminal, even an act must also be guilty to be hence proved”, the actual commission of the crime is not only important in proving someone is guilty. Various judgements of the Supreme Court and High Court as cited and discussed above clearly distinguish and define when an act becomes an attempt and thereby is punishable. The guilt of commission or attempt to commit a crime is enumerated under Section 511 of the IPC which is a general provision dealing with the attempts to commit offences and not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable for life or death. Thus on the basis of the above analysis ‘Attempt’ and ‘Preparation’ are amply distinguished.

-Bibliography-

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