Discuss attempt to commit an offence and distinguish attempt from preparation to an commit offence. To what extent are these punishable?

Question: Discuss an attempt to commit an offence and distinguish an attempt from preparation to commit an offence. To what extent are these punishable? [U.P.C.J. 1997, UPCJ 2016.]

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Answer

An attempt to commit an offence, under the IPC, seems to be a direct movement towards the commission of the offence, which, due to some interruptions beyond the control of the doer, remained unaccomplished.

An attempt to commit an offence may be defined as an act which if not prevented would result in the full consummation of the attempted offence. It is, thus, an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. An attempt to commit an offence consists of the intent to commit a crime, combined with the doing of some act for its actual commission.

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.

They are-

First, he had an intention or mena rea to commit the contemplated or intended offence.

Secondly, he has done some act or taken a step forward (i.e. an act or a step which was more than merely preparatory to the commission of the intended offence) towards the commission of the contemplated offence.

Thirdly, he, for reasons beyond his comprehension or control, failed to commit the intended offence. An attempt to commit an offence, thus, can be said to begin when the preparations are complete and the doer commences to do something with the intention of committing the desired offence and which is a step towards the commission of the offence.

The moment he, after making necessary preparations, commences to do an act with the necessary intention, he commences his attempt to commit the offence. Such an act need not be the penultimate act towards the commission of the offence. A step or direct movement towards the commission of the contemplated offence is sufficient.

Various tests have been developed and employed by courts in India for distinguishing an attempt to commit an offence from preparations made, therefore. A few prominent among them discussed here below are:

1. the Proximity Rule,
2. the Doctrine of Locus Poenitentiae, and
3. the Equivocallity Test.

1. 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 indirect relationship with the victim and should have contributed to the final act.

This theory originates from the case of Regina v. Eagleton 1855 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 of the opinion that an offenders action does not proceed beyond preparation until he has the power to complete the crime.

2. 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 that 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.

3. 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 the 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 penitential.

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