Distinction between Preparation and Attempt- Multiple Test

Updated: Jan 22



There is no clear dividing line between preparation and attempt; it is very thin. In view of silence of IPC on the point, every case has to be judged according to the facts and circumstances of its own. What is necessary to prove for an offence of attempt is that the accused had gone beyond the stage of preparation. Some tests have been evolved by the courts to determine at what stage an act or series of acts done towards the commission of the intended offence would become an attempt.


Proximity Test: An act “towards commission of offence” need not be ‘penultimate* (Le. last act after which the crime results), but such act must be proximate to the intended result (State of Maharashtra v Mohd. Yakub AIR 1980 SC 1111). It should not be remotely leading towards the commission of an offence. The act of the accused is proximate if, though it is not the last act that he intended to do, it is the last act that was legally necessary for him to do, if the contemplated result is afterwards brought about without further conduct on his part.

The measure of proximity is not in relation to time and action but in relation to intention. In other words, the act must reveal, with reasonable certainty, in conjunction with other facts and circumstances an intention (as distinguished from a mere desire or object) to commit the particular offence, Le., the act must be indicative or suggestive of intention §State of Maharashtra v Mohd. Yakub). The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence {Ahhayanand Mishra v State of Bihar AIR 1961 SC 1698).


Locus poenitentiae (Time for repentance): An act will amount to a mere preparation if the person, on his own accord, gives it up before the criminal act is carried out. A person attempting an offence may abandon it at some stage though initially he had the intention. Abandonment is a defence if further action is freely and voluntarily abandoned before the act is put in process of final execution. So long as the steps taken by the accused leave room for doubt that he might of his own accord desist from the act to be attempted he would still be treated on the stage of preparation.


The “best test” for determining whether a given set of acts constitute attempt or mere -preparation is whether the overt acts already done are such that if the person changes his mind, and does not proceed further, the acts already done would be completely harmless. If they would be so, it would amount to preparation only. But, where the thing done is such as, if not prevented by any extraneous cause, would fructify into the commission of an offence, it would amount to an attempt to commit that offence ([Malkiat Singh v State of Punjab AIR 1970 SC 713).


Impossibility Test:- An act which is impossible to commit cannot be attempted and so is not culpable. For instance, shooting a shadow, administering sugar mistaking it to for arsenic, or killing a man by witchcraft or cursing a person with an intention to hurt Him, is no attempt in law. In these cases, there is no probability realizing the accused’s goal. Because what he does is apt an act towards the commission of that offence, but an act towards the commission of something which cannot, according to ordinary human experience, result in hurt to another. failure to cause hurt is due to his own act/ omission, his act was intrinsically useless or defective or inappropriate [AsgbarAli v Emperor AIR 1933 Cal 893]


Impossible acts are not punishable but the impossibility must be absolute and not only relative. The illustrations to Sec. 511 explain that trying to steal from an empty pocket or trying to break open a box known to contain no jewels is an attempt because it is an 'act towards the commission of the offence.’ Although in these illustrations, the act itself is impossible of performance, yet it constitutes an offence of attempt to commit crime because the accused’s failure is not due to his own act/omission.


Social danger test: An ‘attempt’ is made punishable because every attempt though it fails, must create or cause alarm or a sense of insecurity in the society, which of itself is an injury and, therefore, the moral guilt of the offender is same as if he had been successful.


The seriousness of the crime attempted and the apprehension of the social danger involved is taken into consideration to distinguish an act of attempt from that of preparation. Thus, if a person gives some pills to a pregnant woman to procure abortion, but it had no effect because the drug was harmless, the person is liable for attempt to cause miscarriage since the act would cause an alarm to society and will have social repercussions.


Equivocality test: In order to come within the ambit of ‘attempt* the act must be such as to clearly and unequivocally indicate the intention to commit the offence. It suggests that an act is proximate if and only if it indicates beyond reasonable doubt what the end toward which it is directed is. In other words, the doing of such act cannot reasonably be regarded as having any other purpose than the commission of that specific crime. Thus, acts must be universally referable to the commission of crimes and must speak for themselves.


LEADING CASE: ABHAYANAND MISHRA V STATE OF BIHAR (AIR 1961 SC 1698)


In this case, the appellant applied to Patna University for appearance at M.A. examinations, as a private candidate, representing that he was a graduate and teaching at a school; he attached bogus certificates in this regard. The university gave the permission and issued admit-card. In the meantime, however, the university came to know about the forged application of the appellant.


The issue before the court was whether appellant was guilty of an “attempt to cheat* the university, under Sec 415 IPC, in as much as he, by making false representation, deceived the university and induced the authorities to issue admit-card. The arguments on behalf of the appellant was that what he did was just a preparation and not an attempt to cheat; further, admit card vas not ‘property* and had no pecuniary value in itself.


The court held that appellant did deceive the university, as a dishonest concealment of facts is a deception and thus cheating under Sec. 415. Admit card is a ‘property’ as it has immense value to a candidate. It is not true that appellant did not gone beyond the stage of preparation.


The court observed: “There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, 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, therefore, 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 offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence”.


In the present case, the preparation was completed when he prepared the application. The moment he dispatched it, he attempted to commit the offence. He just failed to commit the offence because something beyond his control took place.


In Sudbir Kumar Mukherjee v State of W.B. (AIR 1973 SC 2655), an employee of a firm had attempted, in collusion with a limestone dealer, to show false delivery of limestone to his company by forging the signatures of his superiors on the invoice, after which it would be presented for payment. When he was caught, he had himself not signed the challan evidencing receipt of goods. The Supreme Court following the Abhyanand Mishra case, held that veiy fact that a challan had been prepared and that initials of the clerk concerned had been obtained by the accused on the challan showed that the definite step had been taken by him in committing the offence of cheating. Though without his signature the supplier could not claim payment from the company, the act of the accused had crossed the stage of preparation into the realm of attempt.


LEADING CASE: MALKIAT SINGH v STATE OF PUNJAB (AIR 1970 SC 713)


In this case, a truck loaded with paddy, destined for Delhi, was intercepted at a place about 40 km from Delhi (the paddy export was banned under the Punjab Paddy Order). The contention of the appellant was that their act amounts only to a ‘preparation’ and not an ‘attempt’ to commit the offence.


The court observed: “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 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 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. Now 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 light a match and extinguishes it on perceiving that he is being watched, he may be guilty of an attempt to burn it”.


The court held that the “best test” for determining whether a given set of acts constitute attempt or mere preparation is whether the overt acts already done are such that if the person changes his mind, and does not proceed further, the acts already done would be completely harmless. If they would be so, it would amount to preparation only. But, where the thing done is such as, if not prevented by any extraneous cause, would fructify into the commission of an offence, it would amount to an attempt to commit that offence. The court cautioned that for the application of the above test, the offence contemplated must be ‘far removed’ from the completion, otherwise in every case where accused interrupted at the last „ minute from completing the offence, he may always say that he was about to change his mind.

In the present case, the accused had ample time to change their mind and not to proceed further. Thus, they were held not guilty under Sec. 511.


Cases amounting to mere preparation


A contractor who was supplying milk to a hospital was found in the hospital compound with three gallons of stale milk, going in the direction of the place where the cows were about to be milked, his milk-can being similar to the one in which the cows were milked. It was held that this art amounted only to preparation.


The accused, on quarrelling with his brother, fetched a sword, but was seized by others and disarmed before he could use it. It was held that fetching a sword did not amount to an attempt. “It is quite possible that although he fetched the sword, he might not, after all, have actually used it against the complainant, who was his own brother”.


A woman ran to a well, stating that she would jump into it. However, she was caught before she reached the well. On the question whether she was guilty of an' attempt to commit suicide, the court held that she could not be convicted for that offence, as she might have changed her mind before jumping into the well.


A Government stockiest removed 80 rice bags from a godown in his charge, and hid them in a room, with a view to sell them and appropriate the proceeds. Held that this art amounted to mere preparation and that therefore, he was not guilty of an offence under Sec. 511.



Question To Practice:-


  1. How do you differentiate preparation for and attempt at commission of a crime?

  2. Bring out the distinction between the stages of preparation and attempt in the commission of a crime with the help of decided cases.

  3. “Offence does not happen all of a sudden, it passes through some stages.* Discuss and distinguish between preparation to commit offence and an attempt to commit an offence. [IA.S.-2008]

  4. What are different theories of criminal attempt?

  5. Why is preparation to a crime generally not punishable?

  6. Write a short note on: Impossible attempts.

  7. Discuss: Attempt to commit suicide under Sec. 309,1.P.C [I.A. S.-2005]

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