Attempt and Preparation Under IPC | Law Optional Notes for UPSC PDF Download

Introduction

• The Indian Penal Code, 1860, not only prescribes punishments for crimes but also addresses attempts to commit crimes. Distinguishing between an attempt and the preparation of an offense is crucial. In this discussion, we aim to compare and contrast these two concepts, highlighting the nuances between them through relevant case law examples.

Attempt vs. Preparation of an Offense

• Attempt: An attempt in criminal law occurs when an individual takes a substantial step towards committing a crime but does not succeed in completing it. The intention to commit the offense is clear, and there is a direct effort to execute the criminal act. For instance, if someone tries to break into a house but is caught before entering, it can be considered an attempt.
• Preparation: Preparation, on the other hand, involves planning and getting ready to commit a crime but without taking a direct step towards its execution. It is the stage prior to the attempt where the individual prepares the means or plans for the offense but has not yet initiated the criminal act. For example, purchasing tools for a burglary without any immediate action can be categorized as preparation.

Key Differences

• Intent: Attempt requires a specific intent to commit the crime, while preparation involves preliminary actions without the immediate intent to execute the offense.
• Act: Attempt involves a direct step towards the commission of the crime, whereas preparation focuses on preliminary actions without the immediate execution of the criminal act.
• Proximity to the Crime: Attempt is closer in proximity to the actual commission of the offense compared to preparation, which occurs at an earlier stage in the criminal process.

Examples

• Attempt: An individual planting a bomb with the intent to cause harm but getting apprehended before the bomb detonates.
• Preparation: Someone purchasing a ski mask and gloves with the intention of robbing a bank but not taking any further action towards the crime.

Stages of Committing a Crime

• Intention: The initial stage in committing a crime involves the formation of the intent or desire to engage in a criminal act. This is the mental decision where a person plans to carry out a specific unlawful action.
• Preparation: Following the intention to commit a crime, the individual starts making arrangements and plans to execute the unlawful act. This stage involves gathering necessary tools, information, or resources required for the crime.
• Attempt: The attempt phase occurs when the individual takes direct actions towards committing the crime after the preparation is complete. It can be viewed as an intentional step towards the completion of the criminal act.
• Commission: The final stage of committing a crime is the actual execution of the unlawful act. This is when the individual successfully carries out the criminal offense as planned.

For example, let's consider a scenario where an individual intends to rob a bank. The intention phase involves the decision to commit the robbery. During the preparation stage, the person may gather weapons, study the bank's layout, and plan the escape route. The attempt phase occurs when the individual enters the bank with the intention of robbing it but is apprehended before any money is taken. The commission stage would be the successful robbery where money is stolen.

Understanding Attempt in Criminal Law

In the realm of criminal law, the concept of attempt is a crucial one, although it lacks a precise and universal definition. Section 511 of the Indian Penal Code (IPC) addresses the attempt of a crime without explicitly defining it.
According to legal scholar Syed Shamsul Huda, an attempt can be identified by the following criteria:

• If all the essential steps of the offense have been taken, except for the final consequences.
• If the offender has progressed significantly towards committing the crime, justifying punishment to safeguard society.

For an act to be deemed an attempt, three key elements must be present:

• Intent to commit the crime.
• An action taken towards the commission of the crime.
• The failure of that action to reach completion.

Furthermore, an act can be considered an attempt when certain conditions are met: the means to ensure the act's completion are adopted, and the act goes beyond mere preparation.

Section 511 of the IPC discusses the general nature of the crime of attempt, while Section 307 delves into specific instances like attempted murder. Despite these legal provisions, there exists a divergence of opinions among legal experts. For instance, the Allahabad High Court contends that Section 511 should not apply to attempted murder cases since Section 307 deals with it explicitly. Conversely, the Bombay High Court holds a different viewpoint.

In the case of Om Parkash vs. State of Punjab, the Supreme Court of India clarified that the act leading to the crime need not be the final act. For example, in this case, the accused's action of hastening his wife's death by depriving her of food for an extended period constituted an offense under Section 307.

Statutory Provisions of Attempt

Attempts can be categorized into four types:

• When both the attempt and the main offense carry the same punishment without differentiation.
• Cases where an attempt merges with the main offense.
• Instances where attempts are separately punishable.
• When attempts, in general, are punishable.

The first category involves attempts at offenses such as those against the state, public peace, election, false evidence, public morality, decency, human body, and property.

The second category covers situations where attempts are integral to the crime, leading to punishment without explicitly using the term 'attempt'. Offenses like abetment, unlawful assembly, and criminal intimidation fall under this category. For crimes related to currency and against the government, each phase—preparation, attempt, and completion—is inherently punishable.

The third category comprises attempts treated as distinct crimes with defined penalties under the Indian Penal Code (IPC). Examples include attempted murder, attempted culpable homicide, and attempted suicide, each punishable on its own.

The fourth category includes other attempts delineated in Section 511 of the IPC.

• Section 511 of the IPC specifically applies to a limited range of offenses. It excludes attempts at severe crimes punishable by death and those without prescribed punishments in the IPC.
• It does not cover offenses punishable solely by fines or those regulated by special or local laws. For instance, offenses like making false statements in elections, endangering public health, and creating public nuisances are beyond the scope of Section 511.

Understanding the Difference between Preparation and Attempt

• Preparation and attempt have long been debated concepts, with distinct characteristics that set them apart. The key disparities between preparation and attempt are:
• Preparation involves acquiring the means to commit an offense, whereas attempt entails a direct action towards the commission of a crime just before its execution.
• Preparations, in general, are not subject to punishment, whereas attempts are punishable in most cases.

Reasons Why Preparation is Typically Not Punishable

• Preparations are often innocuous in nature and do not pose an immediate threat.
• It is usually challenging to definitively prove that preparatory actions were undertaken with the explicit intent to commit a specific crime. Moreover, individuals might abandon their criminal intentions along the way.
• If preparations were made punishable under the law, the number of criminal offenses outlined in legal statutes would significantly rise.
• Mere preparation for an offense does not cause harm or raise concerns within society.

In summary, preparation involves getting ready to commit a crime, while attempt signifies a direct movement towards the criminal act just before its execution. Preparatory actions are generally not punishable as they are considered harmless, difficult to prove in terms of intent, and do not cause immediate harm or alarm. On the other hand, attempts are punishable in most cases due to the direct nature of the actions taken towards committing the offense.

Mental Element in Attempt

• Mens Rea vs. Actus Reus: Mens rea refers to the intention to commit a crime, while actus reus is the actual guilty act.
• R v Mohan (1976) Case: In this case, a specific attempt was described as the decision to bring a certain condition to fruition.
• Distinguishing Between Preparations and Attempt: The demarcation between mere preparations and an attempt is often a factual question for judges.
• Difficulty in Setting Hard Rules: It is challenging to establish strict rules or principles for drawing the line between mere preparations and an attempt to commit a crime.
• Tests for Distinguishing: Various tests have been proposed to differentiate between mere preparations and an attempt, which are crucial in legal proceedings.

The Proximity Test

• Definition of the Proximity Test: The Proximity Test asserts that an act or a series of acts can be deemed an offense if all essential steps of the crime have been committed, even if the final consequence of the crime has not yet occurred. The attempt should be closely related to the crime and not a distant action. It must directly involve the accused and contribute to the final criminal act.
• Origin: This theory finds its roots in the case of Regina vs Eagleton, where Justice Baron Parke elucidated that a criminal attempt commences when the offender loses control over the crime by executing the final act.
• Judicial Perspective: Many courts hold the view that an offender's actions cannot progress beyond mere preparation until they possess the capability to carry out the crime to its completion.

Locus Paenitentiae Test

• Locus Paenitentiae Test signifies that individuals have a chance to rectify their actions before committing a crime that cannot be undone.
• If an offender is still in the preparatory stages of a crime and can choose not to proceed, the law will not punish them.
• Crossing the point of preparation into the actual commission of a crime indicates that the individual is no longer eligible for the Locus Paenitentiae defense.
• In the case of Regina vs. Padala Venkatsamy, the accused was not punished for attempted forgery as he had not progressed beyond the preparation stage, and the law recognizes the concept of Locus Paenitentiae.

Case Laws on Attempt in Indian Law

• Narayan Das vs. State of West Bengal: In this case, the accused was caught with undeclared notes sewn in his pants by customs officers. The court ruled that this action went beyond mere preparation and constituted an attempt, making it punishable under the Sea Customs Act.
• Bashir Bhai Mohammed Bhai vs. the State of Bombay: Here, the accused was found in possession of fake currency notes. The court determined that this act had moved past preparation and was an attempt towards a punishable offense.
• Om Parkash vs. State of Punjab: When a husband intentionally starved his wife to hasten her death, the court held it as an attempt to commit murder under Section 307. This case emphasized the distinction between the intention to commit an offense and the intention necessary to make an act an offense.
• Abhayanand Mishra vs State of Bihar: The accused falsely claimed to be a graduate and attempted to appear as a private candidate in an MA examination. The court clarified that an attempt begins when all preparations are complete and a step towards the offense is taken, even if the attempt fails due to external factors.
• Malkiat Singh vs State of Punjab: When a truck carrying paddy was stopped before crossing the border, the driver was not held guilty of violating laws as he had not yet crossed the stage of preparation. The court highlighted that preparation involves arranging the means for the offense, while attempt involves a direct movement towards the commission after preparations.
• State of Maharashtra vs. Mohammed Yakub: In an attempt to export silver, the accused were convicted under various acts. The Supreme Court clarified the elements of an attempt, emphasizing the need for intention, an act towards the offense, and proximity to the crime.

Conclusion

In conclusion, this article delves into the nuances of attempt, drawing distinctions between attempt and preparation, and citing relevant cases. It can be concluded that for an individual to transition from the preparation stage to the attempt stage, they must have entirely surpassed the preparation phase with no possibility of retracing their steps. Three crucial elements must coexist: the intent to commit the crime, a concrete action taken toward its commission, and the act must be proximate rather than remote to the intended crime. These criteria collectively define the threshold at which an action transforms from mere preparation to a genuine attempt.