Full Judgment Text
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PETITIONER:
STATE OF MAHARASHTRA
Vs.
RESPONDENT:
MOHD. YAKUB S/O ABDUL HAMID & ORS.
DATE OF JUDGMENT04/03/1980
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
REDDY, O. CHINNAPPA (J)
CITATION:
1980 AIR 1111 1980 SCR (2)1158
1980 SCC (3) 57
ACT:
Penal Code-Attempt to commit an offence-What
constitutes-"Preparation" and "attempt" distinction.
HEADNOTE:
The respondents were charged with the offence of
attempting to smuggle out of India 43 silver ingots in
violation of the Foreign Exchange Regulation Act, 1947,
Imports and Exports (Control) Act, 1947 and the Customs Act,
1962.
The prosecution alleged that on the night of the
occurrence the respondents carried in a truck and a jeep
silver ingots some of which were concealed in a shawl, and
some others hidden in saw-dust bags from Bombay to a lonely
creek nearby and that when the ingots were unloaded near the
creek the sound of the engine of a mechanised sea-craft from
the side of the creek was heard by the Customs officials and
that therefore they were guilty of attempting to smuggle
silver out of India.
The respondents pleaded that they were not aware of the
presence of silver ingots in the vehicles, that they were
only employed for driving the jeep and the truck to another
destination and that the police stopped them en route and
had driven them to the creek.
The Trial Court convicted and sentenced them to various
terms of imprisonment and fine.
On appeal, the Sessions Judge acquitted all the
respondents taking the view that the facts proved showed no
more than that the accused had only made "preparations" for
bringing the silver to the creek and "had not committed any
act amounting to a direct movement towards the commission of
the offence" and that until the silver was put in the boat
with intent to export, it would merely be in the stage of
preparation falling short of an "attempt" to export in
contravention of the law.
The High Court dismissed the State’s appeal. Allowing
the appeal to this Court,
^
HELD: Per Sarkaria, J.: (Chinnappa Reddy, J.
concurring)
1. The High Court was in error in holding that the
circumstances established by the prosecution fell short of
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constituting the offence of an "attempt" to export
unlawfully silver out of India. [1165F]
2. The expression "attempt" within the meaning of the
penal provisions is wide enough to take in its fold any one
or series of acts committed beyond the stage of preparation
in moving contraband goods deliberately to the place of
embarkation, such act or acts being reasonably proximate to
the completion of the unlawful export. [1165E].
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3. The definition of ’proved’ contained in section 3 of
the Evidence Act does not draw any distinction between
circumstantial and other evidence. If the circumstances
establish such a high degree of probability that a prudent
man ought to act on the supposition that the accused was
attempting to export silver from India in contravention of
the law, that would be sufficient proof of that fact in
issue. [116A-B]
4(a) What constitutes an "attempt" is a mixed question
of law and fact, depending largely on the circumstances of
the particular case. "Attempt" defies a precise and exact
definition. Brodly speaking, all crimes which consist of the
commission of affirmative acts are preceded by some covert
or overt conduct which may be divided into three stages: the
first stage exists when the culprit first entertains the
idea or intention to commit an offence; in the second stage
he makes preparations to commit it; and the third stage is
reached when the culprit takes deliberate overt steps to
commit the offence. Such overt act or step, in order to be
criminal, need not be the penultimate act towards the
commission of the offence. It is sufficient if such act or
acts were deliberately done and manifest a clear intention
to commit the offence aimed, being reasonably proximate to
the consummation of the offence. [1164C-E]
Abhayanand Mishra v. State of Bihar, [1962] 2 S.C.R.
241, followed.
(b) There is a distinction between "preparation" and
"attempt". Attempt begins where preparation ends. In sum, a
person commits the offence of ’attempt to commit a
particular offence’ when (i) he intends to commit that
particular offence and (ii) he, having made preparations and
with the intention to commit the offence, does an act
towards its commission; such an act need not be the
penultimate act towards the commission of that offence but
must be an act during the course of committing that offence.
[1164E-F]
In the instant case the respondents carried silver
ingots in the two vehicles to the sea-shore and started
unloading them near a creek from which the sound of the
engine of a sea-craft was heard. In short they did all that
was necessary to export the silver ingots by sea and the
only step that remained was to load them on the sea-craft
for moving out of the territorial waters of the country. But
for the intervention of the Customs officials, the unlawful
export would have been consummated. The disappearance of the
sea-craft reinforces the inference that the accused had
deliberately attempted to export silver by sea in
contravention of law. [1164G-H]
Chinnappa Reddy, J (concurring).
In order to constitute an "attempt" first there must be
an intention to commit a particular offence, second, some
act must have been done which would necessarily have to be
done towards the commission of the offence and third such
act must be ’proximate’ to the intended result. The measure
of proximity is not in relation to time and action but in
relation to intention. In other words, the act must reveal
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with reasonable certainty, in conjunction with other facts
and circumstances and not necessarily in isolation, an
intention as distinguished from a mere desire or object to
commit the particular offence, though the act by itself may
be merely suggestive or indicative of such intention.
[1170E-F]
In the instant case had the truck been stopped and
searched at the very commencement of the journey or even on
the way much before its destination the discovery of silver
ingots in the truck might at the worst lead to the inference
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that the accused had prepared or were preparing for the
commission of the offence. It could be said that the accused
were transporting or attempting to transport the silver
somewhere but it would not necessarily suggest or indicate
that the intention was to export silver. The fact that the
truck was driven up to a lonely creek from where the silver
could be transferred into a sea-faring vessel was suggestive
or indicative, though not conclusive, that the accused
wanted to export the silver. It might have been open to the
accused to plead that the silver was not to be exported but
only to be transported in the course of inter-coastal trade.
But the circumstance that all this was done in a clandestine
fashion, at dead of night revealed, with reasonable
certainty, the intention of the accused that the silver was
to be exported. [1170G-H]
Reg v. Eagleton [1854] Dears C.C. 515; Gardner v.
Akeroyd [1953] 2 All ER 306; Davey v. Lee [1968] 1 Q.B. 366;
Haughten v. Smith [1975] A.C. 476, 492; Director of Public
Prosecutions v. Stonehouse [1977] 2 All E.R. 909, referred
to.
Abhavanand Mishra v. The State of Bihar [1962] 2 SCR
241 @ 253, applied.
Malkiat Singh & Anr. v. State of Punjab [1969] 2 SCR
663 @ 667, distinguished.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
335 of 1974.
Appeal by special leave from the Judgment and Order
dated 1-11-1973 of the Bombay High Court in Criminal Appeal
No. 113 of 1972.
O. P. Rana and M. N. Shroff for the Appellant.
V. N. Ganpule and V. B. Joshi for the Respondents.
The following Judgments were delivered:
SARKARIA, J.-This appeal by special leave preferred by
the State of Maharashtra, is directed against a judgment
dated November 1, 1973, of the Bombay High Court.
Mohd. Yakub respondent 1, Shaikh Jamadar Mithubhai
respondent 2, and Issak Hasanali Shaikh respondent 3, were
tried in the court of the Judicial Magistrate First Class,
Bassein, Bombay, in respect of three sets of offences
punishable under section 135 read with section 135 (2) of
the Customs Act, 1962. The first charge was the violation of
sections 12(1), 23(1) and 23 (d) of the Foreign Exchange
Regulation Act, 1947, the second was violation of Exports
(Council) Order No. 1 of 1968 E.T.C. dated March 8, 1968;
and the third was the contravention of the provisions of
Sections 7, 8, 33 and 34 of the Customs Act, 1962. They were
also charged for violation of the Exports (Control) Order
No. 1/68 E.T.C. dated March 8, 1968 issued under sections 3
and 4 of the Imports and Exports (Control) Act, 1947
punishable under section 5 of the said
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Act. The gist of the charges was that the respondents
attempted to smuggle out of India 43 silver ingots, weighing
1312.410 kgs., worth about Rs. 8 lakhs, in violation of the
Foreign Exchange Regulation Act, the Imports & Exports
(Control) Act, 1947, and the Customs Act.
The facts of the case were as follows:
On receiving some secret information that silver would
be transported in Jeep No. MRC-9930 and Truck No. BMS-796
from Bombay to a coastal place near Bassein, Shri Wagh,
Superintendent of Central Excise along with Inspector Dharap
and the staff proceeded in two vehicles to keep a watch on
the night of September 14, 1968 at Shirsat Naka on the
National Highway No. 8, Bombay City. At about mid-night, the
aforesaid jeep was seen coming from Bombay followed by a
truck. These two vehicles were proceeding towards Bassein.
The officers followed the truck and the jeep which, after
travelling some distance from Shirsat Naka, came to a fork
in the road and thereafter, instead of taking the road
leading to Bassein, proceeded on the new National Highway
leading to Kaman village and Ghodbunder Creek. Ultimately,
the jeep and truck halted near a bridge at Kaman creek
whereafter the accused removed some small and heavy bundles
from the truck and placed them aside on the ground. The
Customs Officers rushed to the spot and accosted the persons
present there. At the same time, the sound of the engine of
a mechanised sea-craft from the side of the creek was heard
by the officers. The officers surrounded the vehicles and
found four silver ingots near the footpath leading to the
creek. Respondent 1 was the driver and the sole occupant of
the jeep, while the other two respondents were the driver
and cleaner of the truck. The officers sent for Kana and
Sathe, both residents of Bassein. In their presence,
respondent 1 was questioned about his identity. He falsely
gave his name and address as Mohamad Yusuf s/o Sayyad
Ibrahim residing at Kamathipura. From the personal search of
respondent 1, a pistol, knife and currency notes of Rs.
2,133/- were found. Fifteen silver ingots concealed in a
shawl were found in the rear side of the jeep and twenty-
four silver ingots were found lying under saw-dust bags in
the truck. The truck and the jeep together with the accused-
respondents and the silver ingots were taken to Shirsat Naka
where a detailed panchanama was drawn up. Respondent 1 had
no licence for keeping a pistol. Consequently the matter was
reported to Police Station Bassein, for prosecuting the
respondent under the Arms Act.
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The respondents and the vehicles and the silver ingots
were taken to Bombay on September 15, 1968. The statements
of the respondents under section 108 of the Customs Act were
recorded by Shri Wagh, Superintendent of Central Excise. The
Collector, Central Excise, by his order dated May 28, 1969,
confiscated the silver ingots. After obtaining the requisite
sanction, the Assistant Collector, Central Excise made a
complaint against all the three accused in the court of the
Judicial Magistrate, Bassein for trial in respect of the
aforesaid offences.
The plea of the accused was of plain denial of the
prosecution case. They stated that they were not aware of
the alleged silver and that they had just been employed for
carrying the jeep and the truck to another destination. They
alleged that they were driven to the creek by the police.
The trial Magistrate convicted the accused of the
aforesaid offences and sentenced accused 1 to two years’
rigorous imprisonment and a fine of Rs. 2,000 and, in
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default, to suffer further six months’ rigorous
imprisonment. Accused 2 and 3 were to suffer six months’
rigorous imprisonment and to pay a fine of Rs. 500 and, in
default, to suffer two months’ rigorous imprisonment.
The accused preferred three appeals in the court of the
Additional Sessions Judge, Thana, who, by his common
judgment dated September 30, 1973, allowed the appeals and
acquitted them on the ground that the facts proved by the
prosecution fell short of establishing that the accused had
’attempted’ to export silver in contravention of the law,
because the facts proved showed no more than that the
accused had only made ’preparations’ for bringing this
silver to the creek and "had not yet committed any act
amounting to a direct movement towards the commission of the
offence". In his view, until silver was put in the boat for
the purpose of taking out of the country with intent to
export it, the matter would be merely in the stage of
’preparation’ falling short of an ’attempt’ to export it.
Since ’preparation’ to commit the offence of exporting
silver was not punishable under the Customs Act, he
acquitted the accused.
Against this acquittal, the State of Maharashtra
carried an appeal to the High Court, which, by its judgment
dated November 1, 1973, dismissed the appeal and upheld the
acquittal of the accused-respondents. Hence, this appeal.
1163
In the instant case, the trial court and the Sessions
Judge con-currently held that the following circumstances
had been established by the prosecution:
(a) The officers (Shri Wagh and party) had
received definite information that silver
would be carried in a truck and a jeep from
Bombay to Bassein for exporting from the
country and for this purpose they kept a
watch at Shirsat Naka and then followed the
jeep and the truck at some distance.
(b) Accused 1 was driving the jeep, while accused
2 was driving the truck and accused 3 was
cleaner on it.
(c) Fifteen silver ingots were found concealed in
the jeep and 24 silver ingots were found
hidden in the truck.
(d) The jeep and the truck were parked near the
Kaman creek from where they could be easily
loaded in some sea craft.
(e) Four silver ingots from the vehicle had been
actually unloaded and were found lying by the
side of the road near the foot-path leading
to the sea.
(f) On being questioned accused 1 gave his false
name and address.
(g) The accused were not dealers in silver.
The trial Magistrate further held that just, when the
officers surrounded these vehicles and caught the accused,
the sound of the engine of a mechanised vessel was heard
from the creek. The first appellate court did not discount
this fact, but held that this circumstance did not have any
probative value.
The question, therefore, is whether from the facts and
circumstances, enumerated above, it could be inferred beyond
reasonable doubt that the respondents had attempted to
export the silver in contravention of law from India ?
At the outset, it may be noted that the Evidence Act
does not insist on absolute proof for the simple reason that
perfect proof in this imperfect world is seldom to be found.
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That is why under Section 3 of the Evidence Act, a fact is
said to be ’proved’ when, after considering the matters
before it, the Court either believes it to exist, or
considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to
act upon the supposition
1164
that it exists. This definition of ’proved’ does not draw
any distinction between circumstantial and other evidence.
Thus, if the circumstances listed above establish such a
high decree of probability that a prudent man ought to act
on the supposition that the appellant was attempting to
export silver from India in contravention of the law, that
will be sufficient proof of that fact in issue.
Well then, what is an "attempt" ? Kenny in his
’Outlines of Criminal Law’ defined "attempt" to commit a
crime as the "last proximate act which a person does towards
the commission of an offence, the consummation of the
offence being hindered by circumstances beyond his control."
This definition is too narrow. What constitutes an "attempt"
is a mixed question of law and fact, depending largely on
the circumstances of the particular case. "Attempt" defies a
precise and exact definition. Broadly speaking, all crimes
which consist of the commission of affirmative acts are
preceded by some covert or overt conduct which may be
divided into three stages. The first stage exists when the
culprit first entertains the idea or intention to commit an
offence. In the second stage, he makes preparations to
commit it. The third stage is reached when the culprit takes
deliberate overt steps to commit the offence. Such overt act
or step in order to be ’criminal’ need not be the
penultimate act towards the commission of the offence. It is
sufficient if such act or acts were deliberately done, and
manifest a clear intention to commit the offence aimed,
being reasonably proximate to the consummation of the
offence. As pointed out in Abhayanand Mishra v. State of
Bihar(1) there is a distinction between ’preparation’ and
’attempt’. Attempt begins where preparation ends. In sum, a
person commits the offence of ’attempt to commit a
particular offence’ when (i) he intends to commit that
particular offence; and (ii) he, having made preparations
and with the intention to commit the offence, does an act
towards its commission; such an act need not be the
penultimate act towards the commission of that offence but
must be an act during the course of committing that offence.
Now, let us apply the above principles to the facts of
the case in hand. The intention of the accused to export the
silver from India by sea was clear from the circumstances
enumerated above. They were taking the silver ingots
concealed in the two vehicles under cover of darkness. They
had reached close to the sea-shore and had started unloading
the silver there near a creek from which the sound of the
engine of a sea-craft was also heard. Beyond the stage of
preparation, most of the steps necessary in the course of
export by
1165
sea, had been taken. The only step that remained to be taken
towards the export of the silver was to load it on a sea-
craft for moving out of the territorial waters of India. But
for the intervention of the officers of law, the unlawful
export of silver would have been consummated. The
calendestine disappearance of the sea-craft when the
officers intercepted and rounded up the vehicles and the
accused at the creek, reinforces the inference that the
accused had deliberately attempted to export silver by sea
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in contravention of law.
It is important to bear in mind that the penal
provisions with which we are concerned have been enacted to
suppress the evil of smuggling precious metal out of India.
Smuggling is an antisocial activity which adversely affects
the public revenues, the earning of foreign exchange, the
financial stability and the economy of the country. A narrow
interpretation of the word "attempt" therefore, in these
penal provisions which will impair their efficacy as
instruments for combating this baneful activity has to be
eschewed. These provisions should be construed in a manner
which would suppress the mischief, promote their object,
prevent their subtle evasion and foil their artful
circumvention. Thus, construed, the expression "attempt"
within the meaning of these penal provisions is wide enough
to take in its fold any one or series of acts committed,
beyond the stage of preparation in moving the contraband
goods deliberately to the place of embarkation, such act or
acts being reasonably proximate to the completion of the
unlawful export. The inference arising out of the facts and
circumstances established by the prosecution, unerringly
pointed to the conclusion, that the accused had committed
the offence of attempting to export silver out of India by
sea, in contravention of law.
For reasons aforesaid, we are of opinion that the High
Court was in error in holding that the circumstances
established by the prosecution fell short of constituting
the offence of an ’attempt’ to export unlawfully, silver out
of India. We, therefore, allow this appeal, set aside the
acquittal of the accused-respondents and convict them under
Section 135(a) of the Customs Act, 1962 read with Section 5
of the Imports and Exports Control Act, 1947 and the Order
issued thereunder, and sentence them as under:
Accused-respondent 1, Mohd. Yakub is sentenced to
suffer one year’s rigorous imprisonment with a fine of Rs.
2,000 and, in default, to suffer six months’ further
rigorous imprisonment. Accused respondents 2 and 3, namely,
Sheikh Jamadar Mithubhai and Issak Hasanali Shaikh are each
sentenced to six months’ rigorous imprisonment
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with a fine of Rs. 500 and, in default to suffer two months’
further rigorous imprisonment.
CHINNAPPA REDDY, J. I concur in the conclusion of my
brother Sarkaria, J. in whose Judgment the relevant facts
have been set out with clarity and particularity. I wish to
add a few paragraphs on the nature of the actus reus to be
proved on a charge of an attempt to commit an offence.
The question is what is the difference between
preparation and perpetration?
An attempt to define ’attempt’ has to be a frustrating
exercise. Nonetheless a search to discover the
characteristics of an attempt, if not an apt definition of
attempt, has to be made.
In England Parke B described the characteristics of an
’attempt’ in Reg. v. Eagleton,(1) as follows:-
"the mere intention to commit a misdemeanor is not
criminal. Some act is required, and we do not think
that all acts towards committing a misdemeanor
indictable. Acts remotely leading towards the
commission of the offence are not to be considered as
attempts to commit but acts immediately connected with
it are..... "
The dictum of Parke B is considered as the locus
classicus on the subject and the test of ’proximity’
suggested by it has been accepted and applied by English
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Courts, though with occasional but audible murmur about the
difficulty in determining whether an act is immediate or
remote. Vide Lord Goddard C.J. in Gardner v. Akeroyed.(2)
"....it is sometimes difficult to determine whether an act
is immediately or remotely connected with the crime of which
it is alleged to be an attempt". Parke B. himself appeared
to have thought that the last possible act before the
achievement of the end constituted the attempt. This was
indicated by him in the very case of Reg. v. Eagleton
(supra) where he further observed:
"................. and if, in this case ........
any further step on the part of the defendent had been
necessary to obtain payment........ we should have
thought that the obtaining credit.......... would not
have been sufficiently proximate to the obtaining the
money. But, on the statement in this case, no other act
on the part of the
1167
defendant would have been required. It was the last
act, depending on himself towards the payment of the
money, and therefore it ought to be considered as an
attempt".
As a general principle the test of ’the last possible act
before the achievement of the end’ would be entirely
unacceptable. If that principle be correct, a person who has
cocked his gun at another and is about to pull the trigger
but is prevented from doing so by the intervention of
someone or something cannot be convicted of attempt to
murder.
Another popular formulation of what constitutes
’attempt’ is that of Stephen in his Digest of the Criminal
Law where he said:
"An attempt to commit a crime is 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".
While the first sentence is an attempt at defining
’attempt’, the second sentence is a confession of inability
to define. The attempt at definition fails precisely at the
point where it should be helpful. See the observations of
Parker C.J. in Davey v. Lee(1) and of Prof. Glanville
Williams in his essay on ’Police Control of intending
criminals’ in 1955 Criminal Law Review.
Another attempt at definition was made by Professor
Turner in [1934] 5 Cambridge Law Journal 230, and this was
substantially reproduced in Archbald’s Criminal Pleading,
Evidence and Practice (36th Edn.). Archbald’s reproduction
was quoted with approval in Davey v. Lee(1) and was as
follows:
’........... the actus reus necessary to
constitute an attempt is complete if the prisoner does
an act which is a step towards the commission of a
specific crime, which is immediately and not merely
remotely connected with the commission of it, and the
doing of which cannot reasonably be regarded as having
any other purpose than the commission of the specific
crime".
We must at once say that it was not noticed in
Archbald’s (36th Edn.) nor was it brought to the notice of
the Divisional Court which decided Davey v. Lee (supra) that
Prof. Turner was himself not satisfied with the definition
propounded by him and felt compelled to
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modify it, as he thought that to require that the act could
not reasonably be regarded as having any other purpose then
the commission of the specific crime went too far and it
should be sufficient "to show prima facie’ the offender’s
intention to commit the crime which he is charged with
attempting".
Editing 12th edition of Russell on Crime and 18th
edition of Kenny’s Outlines of Criminal Law, Professor
Turner explained his modified definition as follows:
"It is therefore suggested that a practical test
for the actus reus in attempt is that the prosecution
must prove that the steps taken by the accused must
have reached the point when they themselves clearly
indicate that was the end towards which they were
directed. In other words the steps taken must
themselves be sufficient to show, prima facie, the
offender’s intention to commit the crime which he is
charged with attempting. That there may be abundant
other evidence to establish his mens rea (such as a
confession) is irrelevant to the question of whether he
had done enough to constitute the actus reus".(1)
We must say here that we are unable to see any justification
for excluding evidence aliunde on the question of mens rea
in considering what constitutes the actus reus. That would
be placing the actus reus in too narrow a pigeon-hole.
In Haughten v. Smith,(2) Hailsham L. C. quoted Parke B
from the Eagleton case (supra) and Lord Parker, C.J. from
Davey v. Lee (supra) and proceeded to mention three
propositions as emerging from the two definitions:
"(1) There is a distinction between the intention
to commit a crime and an attempt to commit it........
(2) In addition to the intention, or mens rea, there
must be an overt act of such a kind that it is intended
to form and does form part of a series of acts which
would constitute the actual commission of the offence
if it were not interrupted...... (3) The act relied on
as constituting the attempt must not be an act merely
preparatory to commit the completed offence, but must
bear a relationship to the completion of the offence
referred to in Reg. v. Eagleton, as being ’proximate’
to the completion of the offence in
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Davey v. Lee [1968] 1 Q.B. 366, 370, as being
’immediately and not merely remotely connected’ with
the completed offence...... "
In Director of Public Prosecutions v. Stonehouse,(1)
Lord Diplock and Viscount Dilhorne, appeared to accept the
’proximity’ test of Parke B, while Lord Edmund-Davies
accepted the statement of Lord Hailsham as to what were the
true ingredients of a criminal attempt. Whatever test was
applied, it was held that the facts clearly disclosed and
attempt in that case.
In India, while attempts to commit certain specified
offences have themselves been made specific offences (e.g.
307, 308 Indian Penal Code etc.), an attempt to commit an
offence punishable under the Penal Code, generally, is dealt
with under section 511 Indian Penal Code. But the expression
’attempt’ has not been defined anywhere.
In Abhayanand Mishra v. The State of Bihar,(2) Raghubar
Dayal and Subba Rao, JJ., disapproved of the test of ’last
act which if uninterrupted and successful would constitute a
criminal offence’ and summarised their views as follows:
"A person commits the offence of ’attempt to
commit a particular offence’ when (i) he intends to
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commit that particular offence; and (ii) he, having
made preparations and with the intention to commit the
offence, does an act towards its commission; such an
act need not be the penultimate act towards the
commission of that offence but must be an act during
the course of committing that offence".
In Malkiat Singh & Anr v. State of Punjab,(3) a truck
which was carrying paddy, was stopped at Samalkha 32 miles
from Delhi and about 15 miles from the Delhi-Punjab
boundary. The question was whether the accused were
attempting to export paddy from Punjab to Delhi. It was held
that on the facts of the case, the offence of attempt had
not been committed. Ramaswamy. J., observed:
"The test for determining whether the act of the
appellants constituted an attempt or preparation is
whether the overt acts already done are such that if
the offender changes his mind and does not proceed
further in its progress, the acts already done would be
completely harmless. In the present case it is quite
possible that the appellants may have
1170
been warned that they had no licence 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".
We think that the test propounded by the first sentence
should be understood with reference to the facts of the
case. The offence alleged to be contemplated was so far
removed from completion in that case that the offender had
yet ample time and opportunity to change his mind and
proceed no further, his earlier acts being completely
harmless. That was what the Court meant, and the reference
to ’the appellants’ in the sentence where the test is
propounded makes it clear that the test is propounded with
reference to the particular facts of the case and not as a
general rule. Otherwise, in every case where an accused is
interrupted at the last minute from completing the offence,
he may always say that when he was interrupted he was about
to change his mind.
Let me now state the result of the search and research:
In order to constitute ’an attempt’, first, there must be an
intention to commit a particular offence, second, some act
must have been done which would necessarily have to be done
towards the commission of the offence, and, third, such act
must be ’proximate’ to the intended result. 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 and not necessarily in isolation, an
intention, as distinguished from a mere desire or object, to
commit the particular offence, though the act by itself may
be merely suggestive or indicative of such intention; but,
that it must be, that is, it must be indicative or
suggestive of the intention. For instance, in the instant
case, had the truck been stopped and searched at the very
commencement of the journey or even at Shirsad Naka, the
discovery of silver ingots in the truck might at the worst
lead to the inference that the accused had prepared or were
preparing for the commission of the offence. It could be
said that the accused were transporting or attempting to
transport the silver somewhere but it would not necessarily
suggest or indicate that the intention was to export silver.
The fact that the truck was driven upto a lonely creek from
where the silver could be transferred into a sea-faring
vessel was suggestive or indicative though not conclusive,
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that the accused wanted to export the silver. It might have
been open to the accused to plead that the silver was
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not to be exported but only to be transported in the course
of intercoastal trade. But, the circumstance that all this
was done in a clandestine fashion, at dead of night,
revealed, with reasonable certainty, the intention of the
accused that the silver was to be exported.
In the result I agree with the order proposed by
Sarkaria, J.
P.B.R. Appeal allowed.
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