Attempt Under the Sanhita
Chapter Forty-Five
Syllabus topic 4, "Stages in Commission of Crime"
Pages 165 to 167 of 711
In one line
Section 62 punishes any attempt for which the Sanhita makes no express provision, with up to half the punishment for the completed offence.
In the wording a student can write in an exam: section 62 of the Bharatiya Nyaya Sanhita provides that whoever attempts to commit an offence punishable by the Sanhita 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 the Sanhita 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.
The provision, clause by clause
"Whoever attempts to commit an offence punishable by this Sanhita with imprisonment for life or imprisonment." The section reaches only offences under the Sanhita, and only those punishable with imprisonment for life or with imprisonment. An offence punishable with fine alone is outside it. So is an offence under a special law, unless that law makes its own provision.
"Or to cause such an offence to be committed." The section covers an attempt to procure the offence as well as an attempt to commit it personally.
"And in such attempt does any act towards the commission of the offence." This is the operative requirement, and it is the phrase Abhayanand Mishra construed. Any act, not the last act, but an act during the course of committing the offence.
"Where no express provision is made by this Sanhita for the punishment of such attempt." The residuary clause. Section 62 does not apply where the Sanhita punishes the attempt separately.
"Shall be punished with imprisonment of any description provided for the offence." The kind of imprisonment follows the substantive offence: if the offence carries rigorous imprisonment, so may the attempt.
"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." The ceiling. Where the offence carries imprisonment for life, the attempt carries up to half of it. Where the offence carries a term, the attempt carries up to half of the longest term.
"Or with such fine as is provided for the offence, or with both." The fine is not halved. Where the offence carries a fine, the attempt may carry the same fine.
The four ways an attempt is punished
The Sanhita deals with attempts in four different ways, and identifying which applies is the first step in any answer.
Attempt Under the Sanhita
One: the attempt is the offence. Some definitions include attempting. Dacoity is committed by five or more persons who conjointly commit or attempt to commit a robbery, so an attempted robbery by five is dacoity itself.
Two: an express section for the attempt. Attempt to murder and attempt to commit culpable homicide have their own provisions with their own punishments, which is why Om Parkash was decided under the attempt to murder section and not under the residuary one.
Three: an express section for an attempt in a particular circumstance. Section 312 punishes an attempt to commit robbery or dacoity when armed with a deadly weapon.
Four: the residuary section 62. Everything else.
What changed in 2023
The numbering. Section 511 of the Indian Penal Code became section 62 of the Sanhita. A candidate answering a paper written in Penal Code numbering should give both.
The words "transportation" removed. The old section spoke of an offence punishable with transportation or imprisonment, transportation having been replaced by imprisonment for life in 1955 while the word lingered in some texts. The Sanhita speaks of imprisonment for life or imprisonment.
The illustrations unchanged. Both illustrations, the empty box and the empty pocket, were reproduced word for word, which matters because they are the whole of the Indian rule on factual impossibility.
The substance unchanged. The three ingredients, the rejection of the penultimate act requirement and the ceiling of one half all survive, so the entire case law under section 511 remains good.
The relationship with abetment and conspiracy
Section 62 sits at the end of a run of provisions that all punish conduct short of a completed offence, and the three should be seen together.
Sections 45 to 60 punish abetment, which is participation in an offence by another. Section 61 punishes criminal conspiracy, which is an agreement. Section 62 punishes attempt, which is an individual's own act towards the offence.
The three are the inchoate offences and they have a chapter of their own.
Worked example
Nandini tries to commit criminal breach of trust in respect of a sum entrusted to her. She transfers the money to her own account and is detected before she can withdraw it.
Which of the four routes? The Sanhita makes no express provision for an attempt to commit criminal breach of trust, and the definition does not include attempting. So the residuary section 62 applies.
Is the offence within the section? Criminal breach of trust is punishable with imprisonment, so yes.
Did she do an act towards the commission? Transferring the money is an act during the course of committing the offence, and on Abhayanand Mishra it need not be the last act.
Attempt Under the Sanhita
What is the maximum sentence? Half the longest term provided for the substantive offence, plus the fine the offence provides, of the description of imprisonment the offence provides.
Now change the offence to murder. Section 62 does not apply at all, because the Sanhita makes express provision for attempt to murder, and the sentence is what that section provides rather than half of the punishment for murder.
What it does NOT mean
It does not apply to every attempt. It is expressly residuary.
It does not halve the fine. Only the imprisonment is halved.
It does not reach offences punishable with fine only. The section names imprisonment for life or imprisonment.
And it does not reach special laws. An attempt under a special law is punishable only if that law says so.
Quick revision
- Section 62, formerly section 511 of the Penal Code.
- Applies to an offence under the Sanhita punishable with imprisonment for life or imprisonment, and only where no express provision is made for the attempt.
- Requires any act towards the commission, not the last act.
- Punishment: up to one-half of the imprisonment for life or of the longest term, of the description provided for the offence, or the fine provided for the offence, which is not halved, or both.
- Two illustrations, the empty box and the empty pocket, reproduced unchanged in 2023.
- Four routes: the definition includes attempting; an express attempt section; an express section for a circumstance; or section 62.
Test yourself
1. When does section 62 not apply, and give an example. Where the Sanhita makes express provision for the punishment of the attempt. Attempt to murder has its own section, so section 62 does not apply to it.
2. What is the maximum punishment under section 62? Imprisonment of any description provided for the offence, for a term up to one-half of the imprisonment for life or of the longest term provided for the offence, or the fine provided for the offence, or both. The fine is not halved.
3. What changed from section 511 in 2023? The numbering, and the removal of the obsolete reference to transportation. The three ingredients, the illustrations and the ceiling of one half are unchanged, so the case law under section 511 is still good.
4. Does section 62 reach an attempt to commit an offence under a special law? No. It is confined to offences punishable by the Sanhita. An attempt under a special law is punishable only if that law provides for it.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.