This article is written by Millia Dasgupta, from Jindal Global Law School. This article covers the difference between attempt and preparation in IPC.
Table of Contents
The Indian Penal Code not only punishes the crime but also punishes attempts at crime. There is a fine line between attempt and preparation. In this article, we shall be making a distinction between the two.
Steps to crime
Attempt to commit a crime has been defined as an extremely difficult and intricate branch of crime. The accused either prepares to commit the crime or commits it in a spur of the moment. In these spur of the moment crimes, stages of preparation and attempt overlap and fuse into each other. But with crimes that are well planned out, there are 4 stages to this crime:
- Commission of the crime.
An attempt has been seen as the direct movement to commit the crime after the preparation has been done. An attempt can also be defined as an intentional preparation action. If a man has done an intentional act to seek a certain objection i.e- the completion of the crime, and if that objective fails due to some reason that is independent of his own will, then it is said that man has attempted to commit the crime.
Meaning of Attempt
Section 511 of the IPC gives the concept of attempting a more formal shape without defining it. It has not been given a proper meaning anywhere in criminal law. Syed Shamsul Huda in his book, 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:
- Intent to commit the crime.
- Act towards the accomplishment of the crime.
- 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 talks about the general nature of the crime and Section 307 talks about the particular nature. Despite these sections, there is a difference in opinion regarding what is the scope of attempt. The Allahabad High Court believes that Section 511 can not be applied in cases of attempt to murder. Such is provided for in Article 307. On the other hand, the Bombay High Court believes the contrary. In Om Parkash vs State of Punjab, the Supreme Court 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
There can be four kinds of attempts:
- Where the attempt and the main offence are punished in the same manner without distinction.
- When an attempt is merged into the main offence.
- Where the attempt are separately made punishable.
- When attempts are made punishable in general.
The first category of offence relates to attempts to offences such as offence against the state, forces, public peace, election, false evidence, public morality and decency, human body and property.
The second category of attempts are in cases where the attempt is a part of the transaction. Despite being attempts, they are made punishable without using the very word ‘attempt’. For example offences such as abetment, unlawful assembly and criminal intimidation. In offences which are related to coin and government, every step of the crime such as the preparation, the attempt and the completion is seen as punishable. Thus, in such crimes every stage of attempt is punishable but they are not seen as attempts. Each step is seen as an offence.
The third category are attempts which are seen as a separate crime or offence and have their own punishment. Examples attempt to commit murder, attempt to culpable homicide and attempt to suicide. These offences are punishable independently.
The fourth categories are general attempts and are defined under Section 511.
Section 511 is 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 death and do not have a set of punishments prescribed in the code. It is also not applicable to offences that are punishable by fine only. Attempts to commit which are punishable by a special law or local law are also out of the purview of Section 511. Examples of attempts punishable under Section 511 include a 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 always been disputed. But there have been many academic tests in demarcating what attempt and preparation is. We shall first set out the main differences:
- First, preparation is the procurement of the means of attempting the crime while the attempt is the direct movement towards committing the crime after the commencement.
- Secondly, preparations are not punishable but attempts are.
The reason why preparation is not punishable is given below:
- Preparations are usually harmless acts.
- It is near impossible to prove that preparation was done in order to commit that crime, and even if the preparation was done with mischief in mind, one might have changed his mind on the way.
- If preparation is made punishable then offences in the statutes would increase by tenfold
- Mere preparation does not cause harm or does not raise alarm in society.
Mental element in attempt
Mens rea is the intention to commit the crime while actus reus is a guilty act. In R v Mohan (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 preparation 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 where Justice Baron Parke commented that a criminal attempt begins when the offender loses all control over the crime by doing that last act. Many courts are in the opinion that an offenders action does not proceed beyond preparation until he has the power to complete the crime.
Social Danger Test
The social danger test states that any attempt to do a crime does not proceed until the offender has committed an act which should be punished in order to protect society. Certain factors such as the gravity of the offence conducted, how near the act was to completion of the crime and the probability that the conduct will result in the crime is considered. This test is based on the principle that punishment is meant to deter people from acting in a way that is harmful to society. Until the offender’s conduct is seen as serious, there is no reason to deter it.
Locus Paenitentiae Test
This test 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 where he can undo his crime and not follow up with his crime, then the law will not punish him. If he follows through with his criminal design, it will be said he has crossed the stage of preparation. In a case of Padala Venkatsamy (1881 3 Mad 4.), the court did not punish the accused of attempt despite him having procured all the material and information for forgery because he was not beyond the stage of preparation and the law allows from locus paenitentiae.
Narayandas vs State of West Bengal
In this case, the accused had undeclared notes sewn in the pants on his trousers and was discovered by the customs officer. The court held it 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.
Bashirbhai Mohammedbhai vs the State of Bombay
In this case, the accused has a complaint against him which states he was in possession of duplicate currency notes. These notes were recovered. The court held that the act had gone beyond the stage of preparation and thus was an attempt towards the commission of an offence.
Om Parkash vs State of Punjab
In this case, the accused deliberately starved his wife to accelerate his death. It was held that his act had amounted to attempt to commit murder. The court stated 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 difference 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
In this case, the accused falsely showed he was a graduate. He tried to appear as a private candidate in an M.A examination through a permission letter but was debarred from appearing 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
In this case, a truck carrying paddy from Punjab was stopped by a sub-inspector and was taken into possession 18 miles from Delhi. He was accused of violating the Punjab Paddy order. The driver admitted he was transporting the paddy towards 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 has not crossed the stage of preparation and still had time to change his mind.
The court commented 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 test that the court set down 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
In this case, the accused tried to smuggle silver out of India. They were convicted for the violation of the Foreign Exchange Regulation Act, Import and Export (Control) Act, 1947 and Customs Act, 1962. While the appellate court acquitted them, the Supreme Court 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.
In this article, we have defined what is attempt and the difference between attempt and preparation. Thus, for an individual to go from a stage of preparation to a stage of attempt, he must first have passed the stage of preparation and there is no chance of turning back. There should be the existence of three ingredients which are the intention to do the crime, an act must be done towards the commission of the crime and the act must be proximate to the crime.
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