NATIONAL LAW SCHOOL OF INDIA UNIVERSITY

CRIMINAL LAW I
ABHAYANAND MISHRA V. STATE OF BIHAR

Pushan Dwivedi
1833
IInd year, IVth Trimester
8/6/2011




2

CONTENTS

1. Index Of Authorities .......................................................................................................................... 3

2. Introduction ......................................................................................................................................... 4

3. Background ......................................................................................................................................... 5

4. Judicial Perceptions In Subsequent Judgements............................................................................... 10

5. Conclusion ........................................................................................................................................ 12

6. Bibliography ..................................................................................................................................... 14


3

I. Index Of Authorities
I. Table of Cases
Indian Cases:
Chandi Pershad v. Abdur Rahman (1894) 22 Cal 131.
Empress v. Appasami I.L.R (1889) 12 Mad. 151.
Macrea R (1893) 15 All. 173.
Malkiat Singh v. State of Punjab AIR 1970 SC 713.
Mishra v. State of Bihar AIR 1961 SC 1698.
Naz Foundation (India) Trust v. Government of
NCT, Delhi
160(2009)DLT277.
Queen Empress v. Soshi Bhushan I.L.R(1893) . 15 All. 210.
Queen v. Ramsarun Chowbey (1872) 4 NWP 46.
Riasat Ali (1881) 7 Cal 352.
State of Maharashtra v. Mohd. Yakub AIR 1980 SC 1111.

English Cases:
Campbell(Tony) (1991) 93 Cr App R 350.
Director of Public Prosecutions v. Stonehouse [1977] 2 All E. R. 909.
Geddes(Gary William) [1996] Crim LR 894.
Haughten v. Smith [1975] A. C.476.
R v. Higgins (1801) 2 East 5 (T.A.C.).
Reg. v. Eagleton (1854) Dears.C.C. 376.
Tosti (Andre) [1997] Crim LR 746.

II. Statutes
1. Criminal Attempts Act, 1981.
2. Indian Penal Code, 1860.
3. Model Penal Code, 1981.

III. Constitution
1. The Constitution of India, 1950.

4

II. INTRODUCTION
The Indian jurisprudence was divided with regard to the ambit of offence under S. 511
1
until Abhayanand
Mishra v. State of Bihar
2
which provided the much needed consistency and certainty in the approach to
imposition of criminal liability for an attempt under S. 511
3
. Primarily, it dealt with the imposition of
criminal liability in possible attempts, completely excluding itself from the interpretation of S. 511
4
with
regard to impossible attempts but for a vague affirmation of the concept. Hence, the researcher would also
limit the ambit to possible attempts only.
However, Mishra
5
does not offer a substantial rationale for its decision but bases it upon a literal
interpretation of the S. 511
6
. The researcher would attempt to infer the rationale of the ratio decendi in
Mishra in the paper and verify if it was followed in the subsequent judgements. Further, the paper would
also explore the operative doctrines with regard to the issue of possible inchoate offences in the English
and American jurisprudences. Finally, the paper would critique Mishra
7
in the light of the above
observations.







1
S. 511, Indian Penal Code, 1860:
Punishment for attempting to commit offences punishable with imprisonment for life or other
imprisonment.--Whoever attempts to commit an offence punishable by this Code with
1
[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 Code for the punishment of such
attempt, be punished with
2
[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.
2
AIR 1961 SC 1698 [hereinafter to be referred as Mishra].
3
S. 511, Indian Penal Code, 1860.
4
Id.
5
AIR 1961 SC 1698.
6
S. 511, Indian Penal Code, 1860.
7
AIR 1961 SC 1698.
5

III. BACKGROUND

1. Abhayanand Mishra v. State of Bihar
8
was a Special Leave Petition under Art. 136
9
before the
Supreme Court against the order of the High Court at Patna which dismissed an appeal against the
conviction of the appellant under S. 420
10
read with S. 511
11
.
2. The first and primary contention put up by the counsel for the appellant was that the acts of the
appellant amounted to mere preparations for the offence and not to an attempt to cheat. The
appellant differentiated the said acts of the accused vis--vis the possession and usage of forged
documents to gain examination hall ticket for the entrance test, as part of the preparatory stage of
the offence under S. 420
12
rather than falling under the ambit of attempt as under S. 511
13
.
Further, the learned counsel argued for the negation of criminal liability on the grounds of the act
not being in close proximity to the consummation of the offence to labelled an attempt for the
same. This argument emanated from the English jurisprudence wherein the criminal liability for
an attempt is based on its proximity to the consummation of the offence.
14

3. Secondly, the counsel contended that arguendo, the appellant had managed to sit for the
examination, he cannot be convicted under S. 420
15
since cheating, as defined under S. 415
16
,
requires that the University should have suffered some harm to its reputation, which is too remote
an idea. This argument was rejected by the court which held the admission card to be a property,
on the basis of Queen Empress v. Appasami
17
and Queen Empress v. Soshi Bhushan
18
which

8
AIR 1961 SC 1698.
9
Art. 136, Constitution of India, 1950.
10
S. 420, Indian Penal Code, 1860:
Cheating and dishonestly inducing delivery of property.
Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any
person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is
signed or scaled, and which is capable of being converted into a valuable security, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also be liable to
fine.
11
S. 511, Indian Penal Code, 1860.
12
S. 420, Indian Penal Code, 1860.
13
S. 511, Indian Penal Code, 1860.
14
See III, 5.
15
S. 420, Indian Penal Code, 1860.
16
S. 415, Indian Penal Code, 1860:
Cheating.Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to
deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces
the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and
which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or
property, is said to cheat".
17
(1889) 12 Mad. 151.
18
I.L.R (1893) 15 All. 210.
6

essentially established that any certificate which allowed the holder certain privileges would be
deemed property under S. 463
19
, hence fulfilling conditions under S. 415
20
.
4. In Mishra
21
, the judgement by Raghubar Dayal, J. rightly dealt with the interpretation of S. 511
22

through a dual step process. Firstly it defines the contours of the two stages of an offence, i.e.,
preparation and attempt. Then, it divulges into the distinct phases of attempt which may be
culpable in nature. Mishra
23
was at odds coming up with a precise delineation between attempt
and preparation. Attempt has not been defined in the Indian Penal Code.
24
The judgement
defined attempt as any act wherein the culprit commences to do something with the intention of
committing the offence and which is a step towards the commission of the offence and
differentiated it from preparation as the stage where the preparation ceases to end and the person
commits any act towards the commission of an offence. This is a rather uncertain and
unsatisfactory demarcation according to the researcher. Raghubar Dayal, J. herein only followed
the black letter law and offered the wordings of S.511
25
as a proof of this demarcation. As stated
in the judgement, such an approach conceptualises the said demarcation as a question of fact
rather than law which is alignment with the established jurisprudence that the differentiation
between attempt and preparation is a question of fact.
26
However, the English and American
jurisprudence have an altogether different scenario wherein the culpability of the attempter is not
based on the execution of any of the series of acts leading towards the offence but on a certain
level of culpability. Herein the researcher would like to dwell on the English and American
jurisprudence to make himself clearer.
5. English and American Jurisprudence: The concept of an inchoate took birth in the English
jurisprudence when the Star Chamber criminalized even the initial arrangements of a duel due to
the incapability of the enforcement agencies in curbing the practise within the existing legal
framework.
27
This was finally established in R v. Higgins
28
wherein the court held that an attempt
to commit a crime is at common law itself a crime.
29
Presently, the Criminal Attempts Act, 1981

19
S. 463, Indian Penal Code, 1860:
Forgery: Whoever makes any false documents or false electronic record or part of a document or
electronic record with intent to cause damage or injury, to the public or to any person, or to support any
claim or title, or to cause any person to part with property, or to enter into any express or implied contract,
or with intent to commit fraud or that fraud may be committed, commits forgery.
20
S. 415, Indian Penal Code, 1860.
21
AIR 1961 SC 1698.
22
S. 511, Indian Penal Code, 1860.
23
AIR 1961 SC 1698.
24
O.P.Srivastava, Principles of Criminal Law, 45 (5
th
edn., 2010).
25
S. 511, Indian Penal Code, 1860.
26
Granville Williams, Textbook on Criminal Law, 374 (2
nd
edn., 1999).
27
J. W. Cecil Turner, Kenny's Outlines of Criminal Law, 101 (15
th
edn., 1952).
28
(1801) 2 East 5 (T.A.C.).
29
Kenny, supra note 27, at 102.
7

criminalizes an act which is more than merely preparatory to the commission of the offence
30
.
The English courts have had incongruent interpretation of this provision. In Campbell
31
and
Geddes
32
, the Court of Appeal was distinctly in favour of last act test wherein the doer is not
culpable until the penultimate step before the consummation of the offence. On the other hand,
Tosti
33
conceptualized a distinction between preparatory and merely preparatory acts, with the
former having the potency for criminal liability. However, it is clear from the perusal of the
English cases that a certain level of proximity towards the consummation of the attempted offence
is required to impose criminal liability on the doer.
In American jurisprudence, the test for imposing criminal liability is substantial step test,
wherein the accused must have taken a substantial step towards the consummation of the offence.
The Model Penal Code provides a number of authoritative examples of a substantial step. Such
an approach recognises the inevitable flexibility in questions of degrees but attempts to provide
guidelines so that the principle of maximum certainty is not breached.
34


6. Juxtaposition in Indian context
a. Prior to Mishra
35
, a number of Indian judgements based their decisions on the proximity test
36

while interpreting S. 511
37
. In Riasat Ali
38
the printing and checking proofs of one hundred receipt
forms similar to those used by another company by the defendant was held not amounting to an
attempt to commit forgery as court reasoned that those forms would not have been a false
document without a fake seal or signature of the company. This reasoning was also affirmed in
Queen v. Ramsarun Chowbey
39
wherein the court held attempt to be the actual taking of those
steps which lead immediately to the commission of the offence. However, it was overruled in
Chandi Pershad v. Abdur Rahman
40
and Macrea R
41
by the Allahabad High Court wherein it was
held that the English precedents are not applicable in India with respect to the narrower
interpretation of S. 511
42
.

30
S. 1(1), Criminal Attempts Act, 1981.
31
(1991) 93 Cr App R 350.
32
[1996] Crim LR 894.
33
[1997] Crim LR 746.
34
A.Ashworth, Principles of Criminal Law, 450 (5
th
edn., 2006).
35
AIR 1961 SC 1698.
36
See III, 5.
37
S. 511, Indian Penal Code, 1860.
38
(1881) 7 Cal 352.
39
(1872) 4 NWP 46.
40
(1894) 22 Cal 131, 138.
41
(1893) 15 All. 173, 177, 178.
42
S. 511, Indian Penal Code, 1860.
8

b. Mishra
43
upheld the non-applicability of the English proximity test in view of the wider ambit
envisaged under S. 511
44
. Raghubar Dayal, J held that a person is criminally liable for an offence
under S. 511
45
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.
c. He concurred with opinion of Knox, J., in R. MacCrea
46
that the very act of attempting an offence
by executing a step towards the same makes the doer culpable, notwithstanding that the doer
abandons his objective to commit the offence itself at a later stage, prior to the full consummation
of the offence. This leads to the inference that the Indian jurisprudence favours an act-centred
approach
47
coupled with intent-based retributivism
48
in the case of inchoate offences. An act-
centred approach focuses upon the intention to commit a crime and only requires a proof of this
intention, in the form of an overt act, to impose criminal liability on the doer. The rationale for the
same is that an evil thought may not attract sanction for the simple fact that thoughts do not
necessarily transform into deeds. However, a person who transforms these thoughts into deeds,
irrespective of the extent of such transformation, poses a greater danger.
49
Hence, having crossed a
certain threshold of criminal liability, the doer is held culpable for punishment.
50

d. However such an approach poses greater problems in the Indian scenario due to the following
reasons:
i. The fact that the execution of any of the acts in the series leading to the consummation of the
offence would lead to imposition of criminal liability on the executioner leaves a large margin for
arbitrariness and abuse by the law enforcement agencies.
51

ii. The fact that the execution of the first step of the series of acts leading to consummation of
offence itself imposes criminal liability on the doer attaches great importance to the demarcation
between attempt and preparation. However, Mishra
52
characterised the demarcation between

43
AIR 1961 SC 1698.
44
S. 511, Indian Penal Code, 1860.
45
Id.
46
I.L.R. 15 All. 173.
47
Ashworth, supra note 34, at 451.
48
A.M.Dillof, Modal Retributivism: A Theory of Sanctions For Attempts and Other Criminal Wrongs, 45(2),
UNIVERSITY OF RICHMOND LAW REVIEW, 647, 648 (January, 2011).
49
S.Shavell, Deterrence and the Punishment of Attempts,19(2), THE JOURNAL OF LEGAL STUDIES, 435, 454 (June,
1990).
50
Ashworth, supra note 47, at 450.
51
Id.
52
AIR 1961 SC 1698.
9

preparation and attempt as a question of fact. This makes the entire proposition of holding a
person criminally liable extremely fact-centric without a sufficient legal test. The English and the
American positions attach a certain level of culpability requirement to a step before imposing
criminal liability on the accused, which does away with the need for a clear demarcation between
preparation and attempt. As established earlier, Mishra
53
did not venture to shed light on the
culpability requirement while differentiating the same. This leads to certain vagueness as to the
basis of holding a person criminally liable for execution of the very first step of attempt of an
offence. Hence, the researcher would try to infer the culpability requirement that was intended by
the judiciary in this instance, if any, and compare the same with post-Mishra
54
Indian precedents.















53
Id.
54
Id.
10

IV. Judicial Perceptions in Subsequent Judgements

1. Malkiat Singh v. State of Punjab: Malkiat Singh v. State of Punjab
55
was the first instance
wherein the apex court had the opportunity to accept or reject Mishra
56
. The question before the
court was to determine if the act of transporting paddy till 32 miles before the Delhi-Punjab border
was an attempt to commit offence of export under Para 2, Punjab Paddy (Export Control) Order,
1959. Herein, the court seems to have modified Mishras
57
position vis--vis imputation of
criminal liability on execution of any of the steps leading to the commission of the offence.
Malkiat
58
held the proximity of the act to the offence as the factor distinguishing it as an attempt.
Such a rationale is more closely tuned to the English law jurisprudence delineated before by the
researcher. Also, the judgement proposes harm principle to be the distinguishing test while
attaching criminal liability for an attempt, which deviates from the intent-based retributivism
59

approach reflected in previous judgements. More significantly, the court ascertained the
sufficiency of actus reus of a criminal attempt to be a question of law.

2. State of Maharashtra v. Mohd. Yakub: State of Maharashtra v. Mohd. Yakub
60
was also a
deviation from Mishra
61
. The divisional bench of R.S. Sarkaria, and O. Chinnappa Reddy, JJ. laid
separate perspectives in their respective judgements, though both concurred to allow the appeal by
the State of Maharashtra and set aside the acquittal of the accused-respondents.
i. Judgement of R.S. Sarkaria, J.: R.S. Sarkaria, J. characterised attempt to be a mixed
question of law and fact. R.S. Sarkaria, J. also followed a realist approach while
attempting to delineate the ambit of attempt. He outlined the significance of the
legislative intent behind the penal provision under which the attempt to offence is being
charged while defining the ambit of attempt in the particular instance. In the present case,
since the accused were being charged under S. 135(a) of the Customs Act, 1962 read with
S. 5 of the Imports and Exports Control Act, 1947 and the Order issued thereunder, R.S.
Sarkaria, J. chose not to provide a narrow interpretation of attempt which would impair
the efficacy
62
of the penal provision to prevent smuggling.

55
AIR 1970 SC 713[hereinafter to be referred as Malkiat].
56
AIR 1961 SC 1698.
57
Id.
58
AIR 1970 SC 713.
59
See III, 7 (c).
60
AIR 1980 SC 1111.
61
AIR 1961 SC 1698.
62
AIR 1980 SC 1111.
11

ii. Judgement of O. Chinnappa Reddy, J.: O. Chinnappa Reddy, J. sought to conceptualise
the actus reus sufficient to impose criminal liability on the accused in a charge of attempt.
He referred to the judgement of Hailsham, L.C. in Haughten v. Smith
63
and of Diplock,
L.J. and Viscount Dilhorne in Director of Public Prosecutions v. Stonehouse
64
. All three
of the judgements had accepted the proximity test of Parke B in Reg. v. Eagleton
65

which may reflect that O. Chinnappa Reddy, J. was inclined towards it himself, especially
since he laid down that the act in an attempt must be 'proximate' to the intended result
66

for the imposition of criminal liability on the accused. It is submitted, however, that O.
Chinnappa Reddy, J. conceptualisation of the actus reus for a culpable attempt was more
aligned to the American jurisprudence substantial-step test than the proximity test of
English jurisprudence since he stated that the the measure of proximity is not in relation
to time and action but in relation to intention
67
and imposed the burden on the
prosecution of establishing that acts of the defendant, themselves, were clearly indicative
of being directed towards the consummation of the offence. He distinguished Malkiat
Singhs
68
harm principle-based test by stating that it was propounded with reference to
the particular facts of the case and not as a general rule
69
.









63
[1975] A. C.476.
64
[1977] 2 All E. R. 909.
65
(1854) Dears.C.C. 376.
66
AIR 1980 SC 1111.
67
Id.
68
AIR 1970 SC 713.
69
AIR 1980 SC 1111.
12

V. CONCLUSION
Abhayanand Mishra v. State of Bihar
70
forms part of the series of judgements defining the judicial
exposition of inchoate offences in India. Its primary contribution being cleared the confusion regarding
the applicability of the last-step test of the English jurisprudence vis--vis S. 511
71
, as it was held to be
non-applicable. It appears that the apex court solely limited itself to the immediate question before it, of
determining if the appellant was wrongly convicted of having attempted to cheat and dishonestly induce
transfer of property (herein the examination hall admission card). To this effect, the judgement sheds light
on the requisite actus reus for the offence under S. 420
72
. In congruence with the prescribed actus reus,
the offence of attempt to cheat and dishonestly induce delivery of property under S. 511
73
comes into
existence as soon as the accused, intentionally, does an act which is a step towards the deception of the
person sought to be cheated.
The first-step test laid down by Raghubar Dayal, J. in Mishra
74
has been summarily rejected in the
subsequent judgements. It is humbly submitted that Raghubar Dayal, J. interpretation of S. 511
75
is in
conflict with the principle of individual autonomy
76
in as much as it holds the individuals liable for the
conduct that they have not chosen yet. Consequently, it also goes against de minimis principle which
inherently envisages that criminal law should be used only as a last resort or for the most reprehensible
types of wrongdoing
77
.
It is submitted that the literal interpretation given by Raghubar Dayal, J. is in sync with the legislative
intent of the colonial era. However, the researcher would like to point towards the fact that one of the
objectives of the codification of Indian Penal Code was to test the effectiveness of certain new concepts
of criminal law in the colony before it is implemented in England itself.
78
However, the first-step
approach to culpable attempts was never integrated in English law itself. Secondly, the English would
have intended to have a strict enforcement of law in their colony India, even at the cost of individual
liberty, so that they may effectively deal with the rise of untoward sentiments. In fact, S. 511
79
seems to

70
AIR 1961 SC 1698.
71
S. 511, Indian Penal Code, 1860.
72
S. 420, Indian Penal Code, 1860.
73
S. 511, Indian Penal Code, 1860.
74
AIR 1961 SC 1698.
75
Id.
76
See A.Kenny, Freewill and Responsibility, (1
st
edn., 1978).
77
D. Husak, The criminal Law as Last Resort, 24(2), OXFORD JOURNAL OF LEGAL STUDIES, 207 (2004).
78
Arudra Burra, The Cobwebs of Imperial Rule, 615, SEMINAR, 620 (2010).
79
S. 511, Indian Penal Code, 1860.
13

be an instance of colonial continuity
80
which cannot be allowed in a civilised society governed by a
Constitution
81
.
































80
Arudra Burra, The Cobwebs of Imperial Rule, 615, SEMINAR, 615 (2010).
81
Id. This was part of the written submissions to the court by Alternative Law Forum in Naz Foundation (India)
Trust v. Government of NCT, Delhi 160(2009)DLT277.
14

VI. BIBLIOGRAPHY

Books:

1. A.Ashworth, Principles of Criminal Law, (5
th
edn., 2006).
2. Granville Williams, Textbook on Criminal Law, (2
nd
edn., 1999).
3. J. W. Cecil Turner, Kenny's Outlines of Criminal Law, (15
th
edn., 1952).
4. O.P.Srivastava, Principles of Criminal Law, (5
th
edn., 2010).


Articles:

1. A.M.Dillof, Modal Retributivism: A Theory of Sanctions For Attempts and Other Criminal
Wrongs, 45(2), UNIVERSITY OF RICHMOND LAW REVIEW (January, 2011).
2. Arudra Burra, The Cobwebs of Imperial Rule, SEMINAR (2010).
3. D. Husak, The criminal Law as Last Resort, 24(2), OXFORD JOURNAL OF LEGAL STUDIES (2004).
4. J.C.Smith, Two problems in Criminal Attempt, 70(3), HARVARD LAW REVIEW (January, 1957).
5. R.A.Duff, Harms and Wrongs, 5(13), BUFFALO CRIMINAL LAW REVIEW (January, 2002).
6. R.A.Duff, The Circumstances of an Attempt, 50(1), CAMBRIDGE LAW JOURNAL (March, 1991).
7. S.Shavell, Deterrence and the Punishment of Attempts,19(2), THE JOURNAL OF LEGAL STUDIES
(June, 1990).