Section 511 of the Indian Penal Code (IPC), 1860, states the punishment for attempting to commit offences punishable with imprisonment for life or other imprisonments.
The bare act wordings are:
“Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.”
This section states that if a person attempts to commit an offence or instigates an offence to be committed thereby does an act which amounts to the offence, which is punishable under the Code with imprisonment for life or imprisonment, wherein no express provisions are made under this Code punishing such an attempt, may be punished with a term which extends to one-half of the life imprisonment or one half of the longest term of imprisonment as can be provided for that offence, or with fine which is levied for committing such an offence , or with both the imprisonment and the fine.
This section, therefore, punishes a person for attempting to commit an offence which is not punishable under the provisions of the Code, thereby treating the attempt to commit an offence, as an offence in itself. The key term to be not here is the attempt to commit the offence. Moreover, this section punishes only the attempt to commit such offences for which the punishments either in the form of imprisonment or with a fine has been specifically mentioned under the Code. The punishment granted for attempting to commit such an offence shall not exceed one half of the life imprisonment or one half of the longest term which can be passed for committing the offence, or with a fine or both. The attempt to commit the offence has the same cognizance of the offence when committed.
Objective of the Section
This section has been farmed in order to punish the moral wrong committed when an attempt is made to commit an offence. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded. The attempt to commit the offence is however different from preparation done to commit an offence, for the reason that an attempt to commit an offence begins only when the preparations have been completed. During an attempt, the culprit commences doing something with the intention of committing the offence and which is a step towards the commission of the offence. Therefore it can be stated that an attempt is a step forward of preparation. When a preparation is done without doing anything in order to put the preparation into use, then the same cannot be considered as an offence. The same has been mentioned under the Section with the help of two illustrations a & b as follows;
(a) “A” makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box that there is no jewel in it. He has done an act towards the commission of theft and therefore is guilty under this section.
(b) “A” makes an attempt to pick the pocket of “Z” by thrusting his hand into Z’s pocket. A fails in the attempt in consequence of Z’s having nothing in his pocket. A is guilty under this section.
Both of these illustrations are an example of an attempt to commit the offence as mentioned under the section. However in the first illustration, if A prepares himself with a hammer to break the box in order to steal the jewel, but does nothing to break the box, then he cannot be held liable for an attempt to commit the offence of stealing.
The word “attempt” is not itself defined under the Code, it has however been amply described by the Supreme Court in the case of Koppula Venkat Rao v. State of Andhra Pradesh, (2004) 3 SCC 602. Where in it was stated that “ an attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than more preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt. In order to find an accused guilty of an attempt with intent to commit a rape. Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.”
The difference between the attempt and preparation has also been drawn in this case wherein it was held that “A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence, if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word “attempt” is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it, and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and affecting it. The intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists of devising or arranging the means or measures necessary for the commission of the offence. It differs widely from an attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoit). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation.” The difference between attempt and preparation can be further elucidated with the following Case analysis.
Case study
- Title: Malkiat Singh & Anr vs State Of Punjab.
- Citation: 1970 AIR 713, 1959 SCR (2) 663
- Parties: Petitioner: Malkiat Singh & others, Respondent – State of Punjab
- Jurisdiction: The Supreme Court of India under Article 32
- Procedural History
This case is by way of an appeal by special leave from the judgment and order dated November 4, 1965 of the Punjab High Court in Criminal Revision No. 263 of 1965 and Criminal Misc. Nos. 224 of 1965.
Facts
- October 19, 1961 Sub Inspector Banarasi Lal of Food and Supplies Department’ was present at Smalkha Barrier along with Head Constable Mr. Badan Singh and others.
- The appellant Malkiat Singh then came driving truck no. P.N.U. 967. Mr. Babu Singh was the cleaner of that truck.
- The truck carried 75 bags of paddy weighing about 140 maunds.
- As the export of paddy was contrary to law, the Sub Inspector took into possession the truck was also the bags of paddy.
- It is alleged that the consignment of paddy was booked from Lakerkotla on October 18, 1961 by Qimat Rai on behalf of Messrs Sawan Ram Chiranji Lal. The consignee of the paddy was Messrs Devi Dayal Brij Lal of Delhi all of whom were prosecuted.
- In the trial court Malkiat Singh admitted that he was driving the truck which’ was loaded with 75 bags of paddy and the truck was intercepted at Samalkha Barrier.
- According to Mallfiat Singh, he was given the paddy by the Transport Company at Malerkotla for being transported to Delhi. The Transport Company also gave him a letter assuring him that it was an authority for transporting the paddy. But it later transpired that it was a personal letter from’ Qimat Rai to the Commission agents at Delhi and that it was not a letter of authority.
- Babu Singh admitted that he was sitting in the truck as a cleaner.
- The trial court convicted all the accused’ persons, but on appeal the Additional Sessions Judge set aside the conviction of Sawan Ram and Chiranji Lal and affirmed the conviction of Qimat Rai and of the two appellants.
- The appellants took the matter in revision to the High Court but the revision petition was dismissed on November 4, 1965.
Issues
Whether upon the facts found by the lower courts any offence has been committed by the appellants.
Arguments
The contention of the Appellants is that the truck with the loaded paddy was seized at Samalkha well inside the Punjab boundary. It follows therefore that there was no export of paddy within the meaning of Para 2(a) of the Punjab Paddy (Export Control) Order, 1959.
It was however argued on behalf of the respondent that there was an attempt on the part of the appellants to transport paddy to Delhi, ‘and so there was an attempt to commit the offence of export. Which was an offence under Section 511 of IPC.
Held (Ratio Decidendi)
The Court allowed the appeal set aside the conviction of the appellants under sec. 7 of the Essential Commodities Act and the sentence of fine imposed upon each of them. It also set aside the conviction and sentence of Qimat Rai and the order of forfeiture passed by the trial Magistrate with regard to 75 bags of paddy and truck no. P.N.U. 967. The fines, if paid by any of the convicted persons were to be refunded.
Observation of the Court (Orbiter Dicta)
It is therefore evident that there has been no export of paddy outside the State of Punjab in this case and there was no attempt on the part of the appellants to commit the offence of export. It was merely a preparation on the part of the appellants and as a matter of law a preparation for committing an offence is different from attempt to commit it.
The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made.
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 which 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 which 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. If a man buys a box of matches, he cannot be convicted of attempted, arson, however clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket, but, if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it.
In the present case it is quite possible that the appellants may have been warned that they had no license to carry the paddy and they may have changed their mind at any place between Samalkha Barrier and the Delhi-Punjab boundary and not have proceeded further in their journey. Section 8 of the Essential Commodities Act states that “any person who attempts to contravene, or abets a contravention of, any order made under section 3 shall be deemed to have contravened that order”. But there is no provision in the Act which makes a preparation to commit an offence punishable. It follows therefore that the appellants should not have been convicted under s. 7 of the Essential Commodities Act.
Conclusion
The Hon’ble Supreme Court was very apt in giving the judgment. This case is a land mark case which distinguished the “preparation from attempt” and reinforced the fact that “no person can be convicted unless there is mens rea coupled with actus reus. The court while granting the decree referred to the definition of attempt given by Sir James Stephen, in his Digest of Criminal Law, art. 50, which states “an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted.”The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case.” And accordingly set the test for distinguishing attempt from preparation.
Edited by Dhruval
Quality Check – Ankita Jha
Approved & Published by – Sakshi Raje
References
- lawyerservices.in/Malkiat-Singh-and-Another-Versus-State-of-Punjab-1968-11
- https://indiankanoon.org/doc/1792155/
- the-laws.com/Encyclopedia/Browse/Case?CaseId=617991670100
- http://devgan.in/ipc/section/511/
- http://www.lawnotes.in/Section_511_of_Indian_Penal_Code,_1860
