A study of provisions related to attempt under IPC,1860

Abstract:

The Indian Penal Code (IPC) of 1860 encompasses an extensive codification that delineates and penalizes a broad spectrum of transgressions. Among the stipulations within the IPC, there exists a provision addressing attempt to perpetrate crimes. The IPC does not explicitly define the term “attempt.” However, in general parlance, it is commonly understood to denote an act carried out with the intention of committing a crime, yet failing to execute the crime itself. For instance, if an individual aims a firearm at another person with the intent to shoot, but the firearm fails to discharge, said individual has indeed committed an attempt to commit murder.

When determining whether an act constitutes an attempt to commit a crime, courts consider various factors. These factors encompass the nature of the act itself, the defendant’s intent, and the proximity of the act to the actual commission of the crime. Punishments for attempts to commit crimes are generally less severe than those for the actual commission of the crimes. This distinction arises from the fact that an attempt to commit a crime does not result in any actual harm. Nevertheless, attempts to perpetrate grave offenses such as murder and treason can still warrant severe penalties.

Moreover, the provisions relating to attempts to commit crimes serve to safeguard public welfare. Through prosecuting individuals who attempt to commit crimes, the courts can effectively preempt the occurrence of these crimes, thereby shielding the public from harm. The provisions concerning attempts to commit crimes within the IPC constitute a valuable instrument for safeguarding public welfare and discouraging criminal conduct.

Keywords: Attempt, Proximity Rule, Crime, Impossibility Test, Social Danger

Introduction:

Stephen stated that “Crime is an act forbidden by law and which is at the same time revolting to the moral sentiments of the society.” The word ‘Crime’ is very vague and ambiguous as it totally depends upon the sentiments and beliefs of the society or the civilization as to what according to them would construe crime and it is also an arduous task to find out when an act becomes a crime as there are four stages of crime and when the criminal liability will occur is subjective the minds of jurist and legislatures.

• Intention: Intention refers to the underlying motive or deliberate intention with which an action is performed. It encompasses both the premeditation of the act and the accompanying desire or inclination towards its fulfillment.^[1]
• Preparation: It is generally not punishable by law because it would jeopardize the basis of criminal liability as it will be impossible to prove that the object of the person accused was to commit an offence or not. However, in exceptional cases, it is punishable because when the attempt or the accomplishment of the offence is so grave and the effect it will have on society and the fear it will create in the mind of human beings, it is better to stop that from happening at the earliest thus sometimes preparation becomes punishable.
• Attempt: An attempt denotes a purposeful and deliberate undertaking directed towards the execution of a forbidden act, even in instances where the intended outcome remains unattained or incomplete.
• Accomplishment: The actual commission of the offence.

Indian Penal Code, 1860 has provided provisions that specifically relate to attempts of different offences thus to have a better understanding of the word ‘attempt’, we have to construe the statute as a whole and find out the real intention of the legislature.

Research Methodology:

This paper is descriptive and the research is based on secondary sources for the study of provisions related to attempt under the Indian Penal Code, 1860. Secondary sources of information like textbooks, websites, newspapers, and journals are used for the research.

Attempt:

The word ‘Attempt’ has not been defined by the legislature in this code but various jurists, authors and persons who are well acquainted with the subject through years of labour and hard work have tried to define this term. As per Cockburn CJ, “clearly conveys with the idea that if the attempt had succeeded, the offence charged would have been committed.” It could also be stated when a person moves directly towards committing an offence for which he has already prepared thereof.^[2] Criminal liability begins the moment an act enters the stage of an attempt because an attempt brings the culprit so near to completing the crime, it gets penalized in law in the same way as a completed offence. An attempt can be made punishable even though there exists only a mala fide intent with some overt act towards the execution of the crime.

Navigating the Fine Line: Unraveling the Distinction Between Attempt and Preparation

Throughout the annals of legal discourse, the perplexing query that has confounded numerous jurists pertains to the precise demarcation between an act qualifying as an attempt and one that merely lingers as preparatory in nature. Over the long period of legal development, few theories have been propounded by jurists to demarcate the line between the two. To clearly understand the stand which the Indian judiciary upholds about the attempt, we have to go through these different theories as these theories or principles are evolved through judicial pronouncement all around the world. Some of the theories are as follows:

1. Proximity Rule:

[1] According to this rule for an act to be considered within the ambit of attempt it has to be near the accomplishment of the substantive offence^[3] and not completely devoid of any connection or inclination towards the actual perpetration of the offence. The act doesn’t need to be the last act towards the accomplishment of the offence, all it needs is the last act that was legally necessary for him to do. In the case of Sudhir Kumar Mukherjee v State of West Bengal^[4], it was stated that “the act need not be a penultimate act towards the commission of that offence but must be an act during the course of committing that offence.”

In the Indian jurisdiction, the Supreme Court has employed the criterion of proximity in numerous instances, prompting extensive debates regarding whether it should be predicated on temporal factors, actions taken, or the mental state of intention. Notably, State of Maharashtra v. Mohd. Yakub^[5] stands as a pivotal case in this context. Within this case, Justice Chinnappa Reddy expounded upon the underlying principle of proximity by asserting that its evaluation should not be predicated on temporal sequence or overt actions, but rather on the subjective intention of the offender. However, Justice Sarkaria, also in the same case, opined that proximity ought not to be centred around intent, advocating instead for an assessment based on the tangible and tangible closeness to the actual culmination of the offence. According to his viewpoint, for an act to qualify as an attempt, it should exhibit a reasonable level of adjacency to the commission of the offence.

Illustration– If A bought a gun for self-defence 5 months ago and when B arrives at his home, he goes and starts loading the gun. His act of loading the gun will not be considered as his attempt to kill B even if he was loading it intending to kill B.

2. Doctrine of Locus Paenitentiae:

The meaning of the word is “Time for Repentance”. It means that an act will remain at the stage of preparation if the person gives up the commission of that act on his own accord before the act reaches the arena of attempt and criminal liability could start due to fear of punishment that might occur or any other like reason. The application of this rule is not absolute and its application occurs on an ad hoc basis.

In the case of Malkiat Singh v State of Punjab^[6], it was stated that “The test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind, and does not proceed further in its progress, the acts already done would be completely harmless”

3. Impossibility Test:

The essence of this test has been captured by the legislature as well in drafting the code, the illustrations attached with Section 511, clearly states that if a person attempts to steal an ornament after which when he opens the box and finds that the box is empty. Even though the act of committing theft of the jewel is physically impossible yet he still is liable as per this code. In essence, this is what Impossibility Test inculcates. The evolution of impossibility tests has been characterized by a gradual and incremental progression over time, marked by a relatively sluggish pace of advancement. In former times, attempts deemed impossible were not subject to legal repercussions as they were equated with mere preparatory actions. In the case of R v William^[7] the person accused of committing a crime that was impossible in nature because when he puts his hand inside the pocket of another, he finds it to be empty thus making it impossible to accomplish, then he was not held liable as then this doctrine was not evolved but over the long period of the development of criminal jurisprudence, the essence of this judgement was reversed. In R v Ring[2] ^[8] the legal issues of the case were identical to the case mentioned above but the judgement here was that he was made liable under section 511 of the Indian Penal Code,1860(Illustration (a)&(b)).

4. Social-Danger Test:

In order to differentiate between an act of attempt and that of mere preparation, careful consideration is given to the gravity of the offence undertaken and the assessment of the potential societal harm associated with it. This deliberation takes into account the relative severity of the crime in question, as well as the extent to which its execution was imminent or likely, with the ultimate aim of discerning the intention and culpability of the individual involved.

Illustration: In the scenario where A provides pills to a pregnant woman with the intention of inducing an abortion, although the pills prove to be innocuous and have no actual effect, A could still be held liable for an attempt to cause a miscarriage. This determination stems from the recognition that such an act, even if unsuccessful, has the potential to incite alarm within society and carry significant social ramifications.

By assessing the circumstances, it becomes apparent that A’s actions were intrinsically linked to an endeavor to terminate the pregnancy. Despite the lack of physical harm inflicted upon the pregnant woman or the fetus, the underlying intent to interfere with the natural course of pregnancy and cause the termination thereof is evident. The repercussions of such an act extend beyond the immediate individuals involved and permeate the broader social fabric, as it challenges the sanctity of life and raises concerns about the protection of vulnerable members of society.

Thus, considering the potential social alarm generated by A’s conduct, as well as the disruptive impact it could have on the societal values and norms surrounding pregnancy and the protection of unborn life, A may be held accountable for an attempted act of causing miscarriage, despite the absence of any actual physical harm.

5. Equivocality Test (“The act must speak for itself”):

For an act to be deemed an attempt, it necessitates an unmistakable and unequivocal manifestation of the intention to commit the offence. If the actions undertaken provide irrefutable evidence that they are directed towards the ultimate goal in question, then they qualify as an attempt. Otherwise, if the evidence falls short of establishing clear intent and instead only signifies preliminary measures, it remains categorized as mere preparation.

Attempt under the IPC:

Attempt under Indian Penal Code,1860 has been dealt with in four different ways:

1. Where the attempt to commit the offence and the commission of that offence is stated in the same section:
   1. Section 121: It states whoever (whether an Indian citizen or a foreigner) wages war against the Government of India, i.e., to start or to continue the war against the state, that person shall be punishable with death or imprisonment for life and shall also be liable for a fine. It also includes persons who attempt to and also abet the waging of the war.
   2. Section[3]  124A: It states whoever brings or attempts to bring into hatred or contempt or exciting or attempting to excite disaffection towards the government of India by words which are either spoken or written, by signs or by visible representation shall be punished with imprisonment up to 3 years to a lifetime, to which fine may also be added.

The severity of punishment remains consistent for both the actual perpetration of an offence and the attempts made to commit it.

2. Where the commission of the offence and the attempts to commit the offence is given in separately.
   1. Attempt to commit murder given under section 307 for which the punishment is imprisonment of either description up to a period of 10 years and shall also be liable to fine. Whereas punishment for murder (Section 300) is given under Section 302 which provides the penalty to be either death or imprisonment for life and in addition to that fine may also be added.
   2. Attempt to commit robbery is given under Section 393 for which the punishment as provided by the statute is rigorous imprisonment for a period that may extend to 7 years and in addition to that fine may also be attached. Whereas punishment for committing robbery is given under Section 393 which states a person committing robbery shall be punished with rigorous imprisonment for a maximum period of 10 years and a fine may also be attached.

The severity of punishment for both the actual perpetration of an offence and the attempts made to commit it is different.

3. Where the attempt of the offence is only punishable because, after the commission of that act, the person is not alive to be punished under the provisions of law.
   1. Punishment for the attempt of committing suicide is given under section 309 of the Indian Penal Code,1860 which provides the punishment to be simple imprisonment for a maximum period of 1 year or with a fine as a penalty or both.
4. The last manner in which the attempt is dealt with in IPC is under section 511 of the code. It provides punishment for attempts to commit an offence in general, which means all those attempts to commit an offence that does not get included in above mentioned manner are dealt with in this section. This section applies to –
   1. Attempts to commit an offence punishable with imprisonment, and
   2. Attempts to cause such an offence to be committed and in such an act is done towards the commission of an offence.

In both cases, punishment may extend up to half of the imprisonment for life or one-half of the longest period provided for that offence and a fine may be added to it as well.

The theories, rules, and doctrines pertaining to the realm of criminal attempts hold immense significance. It has been extensively debated that the demarcation between the preparatory stage and the actual attempt is exceedingly subtle. Therefore, these theories, rules, and doctrines serve as valuable guidelines for discerning what precisely constitutes a criminal attempt. The application of each of such theories, tests, etc. is not absolute and it has to be determined by the judges on an ad hoc basis by considering the fact and circumstances of each case.  The notions of impossible attempt and abandonment, which serve as defences in cases of criminal attempt, necessitate careful consideration within the framework of these theories, rules, and doctrines.^[9]

Suggestions:

The Indian Penal Code, regrettably, lacks provisions pertaining to incomplete attempts to perpetrate offences that carry solely a monetary penalty as punishment^[10]. This conspicuous omission becomes apparent when considering the legal framework within which such offences are addressed.

By not incorporating provisions to address incomplete attempts in cases of fine-only offences, the Indian Penal Code exhibits a deficiency in its ability to comprehensively address the diverse spectrum of criminal conduct.

In instances where the prescribed penalty for an offence solely entails a fine, the absence of specific provisions regarding unfinished attempts creates a perplexing gap in the law. This void undermines the clarity and effectiveness of the legal system in addressing cases where individuals embark on a course of action with the intention to commit an offence punishable solely by a monetary sanction, but ultimately fail to complete the prohibited act.

Conclusion:

The Law Commission of India, in its insightful recommendations, put forth a proposal for the deletion of Section 511 from the existing legal framework. Simultaneously, it suggested the incorporation of a new Chapter VB, titled “Of Attempt,” which would be strategically positioned after Chapter VA, which pertains to “Criminal Conspiracy.” The primary objective behind this proposal was to consolidate and systematically categorize inchoate crimes within a cohesive framework. By grouping together, the various inchoate offences under a dedicated chapter, specifically Sections 120C and 120D, the proposed amendments aimed to enhance the clarity and organization of the legal structure. This endeavour sought to provide a comprehensive treatment of attempted crimes by establishing a separate legal framework specifically tailored to address the complexities and intricacies inherent in such offences.

The intention behind these recommendations was to streamline the legal apparatus, enabling a more effective and nuanced approach towards the prosecution and adjudication of inchoate offences. By allocating them a distinct space within the statutory fabric, the proposed amendments would contribute to a more coherent and comprehensive understanding of the legal principles governing these preliminary criminal acts.[4] [5] [6] [7] 

Author:

1. Name: Tushar Dhar
2. College name: University of Allahabad

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[1]^I Vol 2, Stephen, Sir James, A History of Criminal Law of England, pp 100,101, (1883)

[2] State of Uttar Pradesh v Ram Charan, AIR 1962 All 359

[3] Hall J, General Principles of Criminal Law, pp 558-599, (2^nd ed. 1960)

[4] AIR 1973 SC 2655

[5] State of Maharashtra v. Mohd. Yakub, AIR 1980 1111

[6] Malkiat Singh v State of Punjab, AIR 1970 SC 713

[7] (1857) 1 QB 320

[8] (1892) 17 Cox CC 491

[9] Defacto IAS, https://www.defactolaw.in/post/attempt-section-511-ipc (Last visited May 12,2023)

[10] Vol 2, Ratanlal and Dhirajlal, The Law of Crimes, pp 2522-2532, (23^rd ed. 1998)

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