Attempt to Commit Offences
Chapter Twelve
Syllabus topic 1, "Offences under Indian Penal Code"
Pages 52 to 55 of 802
In one line
An attempt is a crime that failed, and section 62 punishes it because a person who tried and missed is not innocent.
In the wording a student can write in an exam: by section 62 of the Bharatiya Nyaya Sanhita, 2023, whoever attempts to commit an offence punishable 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, be punished with up to one half of the imprisonment for life or of the longest term provided for that offence, or with such fine as is provided, or with both.
Why a failed crime is punished
The person's guilt is complete even though the harm is not. He decided, prepared and acted. That the intended victim's pocket happened to be empty says something about the victim's luck and nothing about the offender.
Punishing attempts also allows intervention. If the law waited for completion, the police could not lawfully act before the harm occurred, which would be an odd system.
Section 62 is residuary. It applies only "where no express provision is made by this Sanhita for the punishment of such attempt". Several offences carry their own attempt provisions with their own punishments, attempt to murder in section 109 being the obvious one, and where they apply section 62 does not.
The provision itself
Section 62. "Whoever attempts to commit an offence punishable by this 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 this 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."
Illustration (a). A makes an attempt to steal jewels by breaking open a box, and finds on opening it that there is no jewel in it. He has done an act towards the commission of theft and is guilty under the section.
Illustration (b). A attempts to pick Z's pocket by thrusting his hand into it, and fails because there was nothing in the pocket. A is guilty under the section.
Broken down: the three ingredients
One: an intention to commit the offence. An attempt cannot be committed negligently. The offender must mean to bring about the completed offence.
Two: an act towards the commission of the offence. This is the ingredient that separates attempt from preparation, and the statute says only "any act towards the commission". The courts have supplied the tests.
Attempt to Commit Offences
Three: the offence must be one punishable with imprisonment for life or imprisonment, and no express attempt provision must apply. An offence punishable with fine only is outside section 62, and an offence with its own attempt clause is governed by that clause.
Where preparation ends and attempt begins
Preparation is not punishable in general. A man who buys poison intending to use it has committed no offence unless a specific provision says so, and a few do, such as preparation to wage war.
The courts have used several tests, and they overlap rather than compete.
The proximity test asks how close the act came to the completed offence. Buying poison is remote; putting it in the victim's food is proximate.
The test of the last act asks whether the offender did everything he set out to do. This is a narrow test, because a person interrupted before the last act would escape.
The equivocality test asks whether the act, seen on its own, speaks unambiguously of a criminal purpose. A man carrying a can of petrol towards a haystack is equivocal; the same man pouring it over the haystack is not.
The illustrations to section 62 settle one point beyond argument. Impossibility is no answer. The empty box and the empty pocket both produced convictions in the statute's own examples, because the act done was an act towards the commission of the offence and the offender's failure came from a fact he did not know.
Distinctions that carry marks
| Stage | What it is | Punishable |
|---|---|---|
| Intention | Deciding to commit the offence | No, thought alone is never an offence |
| Preparation | Arranging the means | Generally no; exceptionally yes, as with preparation to wage war |
| Attempt | An act towards the commission of the offence | Yes, section 62 or a specific provision |
| Commission | The offence completed | Yes, the offence itself |
| Attempt, s.62 | Attempt to murder, s.109 | |
|---|---|---|
| Application | Residuary, where no express provision is made | Express provision for murder |
| Punishment | Up to one half of the term for the offence | Its own graded scale, up to imprisonment for life |
| Which prevails | Section 62 yields | Section 109 governs |
A worked example
Ashok Gaikwad decides to burgle a jeweller's shop in Pune. He buys a cutting tool on Monday, studies the shutter on Tuesday, and on Wednesday night begins cutting through it. A patrol arrives and he runs.
Was buying the tool an attempt? No. It is preparation. Nothing about buying a cutting tool speaks unambiguously of a criminal purpose, and it is not proximate to the taking of any property.
Attempt to Commit Offences
Was studying the shutter an attempt? Still no, for the same reasons.
Was cutting the shutter an attempt? Yes. It is an act towards the commission of theft, it is proximate, and it is unequivocal. Section 62 applies unless the offence charged has its own attempt provision.
What punishment? Theft under section 303(2) is punishable with imprisonment which may extend to three years. Section 62 permits up to one half of the longest term, so up to eighteen months, or the fine provided for theft, or both.
Change one fact. Suppose the shop had been emptied that morning and there was nothing inside. Ashok is still guilty, on the authority of illustration (a) to section 62: the man who breaks open a box and finds no jewel has done an act towards the commission of theft.
What it does NOT mean
It does not punish intention. A person who decides to commit a crime and does nothing has committed no offence at all.
It does not require the offence to be possible. The two illustrations dispose of that.
It does not apply to every offence. Only to offences punishable with imprisonment for life or imprisonment, and only where the Sanhita makes no express provision for the attempt.
A withdrawal after the attempt begins does not undo it. Once an act towards the commission has been done, the offence under section 62 is complete, and abandoning the plan goes to sentence.
Limits and criticism
"Any act towards the commission" is very wide on its face. Taken literally it would swallow preparation, and the whole of the doctrine that limits it is judge-made rather than statutory.
The tests do not always agree. An act may be proximate but equivocal, or unequivocal but remote, and there is no rule in the statute for choosing between them.
The punishment is fixed as a fraction rather than by seriousness. One half of the term for the completed offence is a mechanical measure, and it produces the same discount for an attempt that failed by an inch and one that never had a chance.
Quick revision
Section 62. Attempting an offence punishable with imprisonment for life or imprisonment, and doing any act towards its commission, where no express provision is made.
Punishment. Up to one half of imprisonment for life, or one half of the longest term for the offence, or the fine provided, or both.
Three ingredients. Intention to commit the offence; an act towards its commission; an offence within the section with no express attempt provision.
The four stages. Intention, preparation, attempt, commission. The criminal law ordinarily enters at the third.
The tests. Proximity, last act, equivocality. They overlap and none is exclusive.
Attempt to Commit Offences
Impossibility. No defence, on the statute's own illustrations of the empty box and the empty pocket.
Test yourself
1. State section 62 and say what makes it residuary. It punishes an attempt to commit an offence punishable with imprisonment for life or imprisonment where an act towards the commission is done. It is residuary because it applies only where no express provision is made by the Sanhita for the punishment of that attempt.
2. A man buys a knife intending to kill his neighbour and is arrested at the shop. What offence, if any? None under section 62. Buying the knife is preparation, not an act towards the commission of the offence, and preparation to murder is not itself punishable.
3. What is the maximum punishment for an attempt under section 62 where the offence carries seven years? Three and a half years, being one half of the longest term, or the fine provided for the offence, or both.
4. Does it matter that the offence could not possibly have been completed? No. Illustrations (a) and (b) to section 62 convict the man who opens an empty box and the man who picks an empty pocket.
5. Name the three tests the courts use to separate preparation from attempt. Proximity to the completed offence; whether the offender did the last act he set out to do; and whether the act, taken by itself, is unequivocally referable to a criminal purpose.
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.