Explain and illustrate the difference between preparation to commit an offence and attempt to commit an offence.

The Four Stages of Crime

Before dwelling on the distinction itself, it is worth appreciating the conceptual architecture within which both preparation and attempt sit. Every crime passes through four progressive stages — first, the intention to commit it; second, the preparation for its commission; third, the attempt; and fourth, the actual commission of the offence. The law, by and large, does not punish the first two stages. Mere intention is invisible to the law — one cannot be tried for one's thoughts. Preparation, in most cases, is equally free from punishment, because a preparatory act, standing alone, is often entirely harmless and ambiguous in character. Attempt, however, crosses a crucial threshold, and from that point criminal liability attaches. If the attempt succeeds, the offence is complete.

This four-stage structure is well recognised in the illustrations to Section 109 of the Bharatiya Nyaya Sanhita, 2023 (corresponding to Section 307 of the Indian Penal Code, 1860). The illustrations state: "A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence." That is preparation. "A fires the gun at Z. He has committed the offence defined in this section." That is attempt — and if Z dies, it becomes murder. The movement from loading the gun to firing it captures, in a single pair of sentences, the leap from preparation to attempt.

Preparation Defined

Preparation consists in devising or arranging the means or measures necessary for the commission of an offence. It is the stage at which the actor gathers tools, instruments, or other resources that will facilitate the crime, but has not yet set the criminal design in irreversible motion. The person is still in a state where, if he changes his mind, no harm will have been done, and no innocent party will have suffered. As the Supreme Court framed it in Malkiat Singh v. State of Punjab (AIR 1970 SC 713): "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."

This test, known as the harmlessness test, explains why preparation is ordinarily not punished. A person who purchases arsenic from a chemist shop may intend to poison his enemy, or he may intend to use it as a pesticide. The law cannot read his mind. Punishing the purchase would criminalise entirely innocent conduct. It is only when the act becomes unambiguously directed toward the commission of a crime, and sufficiently proximate to it, that criminal liability begins.

The General Rule and Its Exceptions

The general rule, firmly embedded in both the IPC and the BNS, is that preparation to commit an offence is not punishable. The rationale is three-fold: it is impossible in most cases to prove that the preparatory act was directed toward commission of an offence; punishing mere preparation would lead to harassment of innocent persons; and a preparatory act, by itself, does not disturb the peace of society or threaten any victim in a proximate way.

However, this general rule admits of important exceptions, where the anticipated crime is so grave that the law steps in even at the preparatory stage. The following are recognised exceptions under the BNS:

• Collecting arms with intention of waging war against the Government of India — Section 149, BNS (Section 122, IPC)

• Committing depredation on territories of a foreign State at peace with India — Section 154, BNS (Section 126, IPC)

• Possession of forged or counterfeit coins, government stamps, currency notes or bank notes — Section 178, BNS

• Making or possessing instruments for forging coins or currency — Section 181, BNS

• Making preparation to commit dacoity — Section 399, IPC (Section 310, BNS)

• Attempt to commit robbery or dacoity when armed with a deadly weapon — Section 312, BNS (Section 398, IPC)

Section 399 of the IPC (and its equivalent under the BNS) is a particularly important illustration of punishable preparation. The anticipated offence of dacoity — robbery by five or more persons — is so grave and so menacing to the public that the legislature deemed it appropriate to intervene even before the robbers have set out. A person can be convicted under Section 399 without the dacoity having ever been attempted, let alone committed.

What Constitutes an Attempt

An attempt to commit an offence is a direct movement toward its commission after preparations are made. It is not enough that the accused intended to commit the crime; the intention must have been translated into action — into an overt act that unambiguously crosses the threshold of preparation. The act need not be the last or penultimate act that would complete the crime. As the Supreme Court established in the landmark case of Abhayanand Mishra v. State of Bihar (AIR 1961 SC 1698): "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."

In Abhayanand Mishra, the accused had applied to Patna University for permission to appear in the M.A. examination by submitting forged certificates claiming he was a graduate and a teacher, when in fact he had been debarred from examinations. The Supreme Court held that preparation was complete when he prepared the application, and that the moment he dispatched it to the university, he had entered the realm of attempt to commit cheating under Section 420 read with Section 511, IPC. This was not the last act — the examination had not yet been taken, the certificate not yet obtained. Yet it was an act during the course of committing the offence, and that was sufficient.

The Residuary Provision — Section 511 IPC and Section 62 BNS

Section 62 of the Bharatiya Nyaya Sanhita, 2023, which corresponds verbatim to Section 511 of the Indian Penal Code, 1860, is the residuary provision governing attempts. It provides that 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 for the punishment of such attempt — be punished with up to one-half of the maximum imprisonment provided for the offence, or with such fine as is provided for the offence, or with both.

The section is residuary because the Code also contains specific provisions dealing with particular attempts. Section 109, BNS (Section 307, IPC) deals with attempt to murder, providing a separate and more severe punishment. Sections dealing with attempt to commit culpable homicide, attempt to commit robbery, attempt to extort, and several others similarly provide their own punishment regimes. Section 62/511 steps in only where the Code has not expressly provided for the punishment of the particular attempt.

The two illustrations appended to Section 62 (identical to those under Section 511, IPC) are instructive: in illustration (a), A attempts to steal jewels by breaking open a box, and finds the box empty. In illustration (b), A tries to pick the pocket of Z, but Z's pocket is empty. In both cases, the commission of the full offence is impossible — yet the attempt is punishable. This legislative choice reflects a fundamental principle: what matters is the intention of the accused and the overt act done in furtherance of it. The accidental absence of what the accused hoped to steal cannot transform a guilty act into an innocent one.

Tests to Distinguish Preparation from Attempt

Courts in India have developed several tests to determine whether a particular act has crossed from preparation into attempt. None of these tests is universally definitive — the courts have consistently held that every case must be decided on its own facts. However, taken together, they provide a framework.

The Proximity Rule requires that the act done toward the commission of the offence be sufficiently proximate — closely connected in time, place, or consequence — to the accomplishment of the intended crime. In State of Maharashtra v. Mohammad Yakub (AIR 1980 SC 1111), the accused were apprehended near a creek while unloading silver ingots that were to be smuggled out of India by sea. The sound of a motorised sea-craft was heard from the direction of the creek. The Supreme Court held, in a landmark judgment with two concurring opinions, that the accused had crossed the stage of preparation and were guilty of attempting to export silver unlawfully. Justice Sarkaria held that what matters is whether the acts were "reasonably proximate to the consummation of the offence." Justice Chinnappa Reddy took a subtly different view, holding that proximity is measured not merely in relation to physical distance or time, but in relation to intention — the act must reveal, with reasonable certainty, an intention to commit the particular offence.

The Doctrine of Locus Poenitentiae, which translates as the "place of repentance," recognises that so long as a person has an opportunity to change his mind and withdraw from the criminal enterprise without causing harm, he is still in the stage of preparation. An act will amount to mere preparation if the person abandons his design of his own accord before the criminal act is carried out. The classic illustration is the Madras High Court decision in Queen-Empress v. Ramakka (1884 ILR 8 Mad 5), where a woman, after a quarrel with her father, rushed toward a well shouting that she would jump in. The court held that she had not gone beyond the stage of preparation — she could still have changed her mind — and acquitted her of an attempt to commit suicide. In Malkiat Singh, discussed above, the Supreme Court applied this doctrine to hold that a truck driver carrying paddy without a licence, stopped fourteen miles before the Punjab-Delhi border, had not yet crossed into attempt — the possibility of repentance was still open.

However, the Malkiat Singh test was not endorsed as a universal rule. In Mohammad Yakub, the Supreme Court cautioned that if the locus poenitentiae test were applied broadly, every accused interrupted at the last moment could claim he was "about to change his mind." The doctrine is to be understood with reference to the particular facts of each case, not as an across-the-board principle.

The Equivocality Test holds that an act constitutes an attempt only if it unequivocally reveals the actor's criminal intention. If the act, taken in its context, speaks for itself as manifesting an intention to commit the offence, it is an attempt; if it is equally consistent with innocent conduct, it may only be preparation. This was applied by the Rajasthan High Court in State v. Parasmal (AIR 1969 Raj 65), which held: "When a person intends to commit a particular offence, and then conducts himself in such a manner which clearly indicates his desire to translate that intention into action, and in pursuance of such an intention does something which may help him to accomplish that desire, it can safely be held that he committed an offence of attempt."

A vivid illustration of the equivocality test in action is R v. Taylor (1895), where a person found in the act of striking a match behind a haystack — which he extinguished when he noticed he was being watched — was held guilty of attempted arson. The act of striking the match, in those circumstances, could only mean one thing. Had he merely purchased a box of matches, no such conclusion would have been possible.

Attempt to Murder — The Specific Provision

Section 109 of the BNS (Section 307, IPC) creates a separate and more demanding standard for attempt to murder. The section provides that whoever does any act with such intention or knowledge, and under such circumstances, that if he by that act caused death he would be guilty of murder, shall be punished with imprisonment up to ten years; and if hurt is caused, with imprisonment for life. The section has three ingredients: first, the death of a human being must have been attempted; second, the accused must have done the act; and third, the act must have been done with the intention or knowledge required for murder.

An important principle established under Section 307, now reflected in Section 109 BNS, is that the court must look at the nature of the act and the intention behind it, not merely at the result. In State of Maharashtra v. Balram Bama Patil (AIR 1983 SC 305), the Supreme Court held: "It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under the circumstances mentioned in the section." This is a crucial principle: even a simple hurt may ground a conviction under Section 109, BNS if the intention to kill is established. Conversely, a grievous wound may not attract Section 109 if the intention to cause death is absent.

Om Prakash v. State of Punjab (AIR 1961 SC 1782) tested this principle in unusual circumstances. The accused systematically starved his wife, denied her food for days together, and kept her locked inside a room. The Supreme Court held this to be an attempt to murder under Section 307, even though it was not a single violent act. A regular and systematic course of starvation, intended to cause death and likely to do so if continued, was an "act" within the meaning of the section — and the fact that death was averted by the wife's escape did not diminish the guilt. This case confirms that an attempt may consist of a series of acts, each building on the last, collectively constituting the criminal attempt.

Attempt to Commit Impossible Offences

A fascinating corner of the law of attempt concerns the situation where the full offence is impossible to commit, either because the object is absent (an empty box, an empty pocket) or because of some other unforeseen circumstance. Indian law, through the illustrations to Section 62 BNS / Section 511 IPC, firmly takes the position that impossibility is no defence to a charge of attempt, provided the accused had the guilty intention and acted upon it.

In Munah Binti Ali v. Public Prosecutor (1958 MLJ 159), the Federation of Malaya Court of Appeal — applying a provision identical to Section 511 IPC — convicted a woman for attempting to cause a miscarriage of another woman who was not, in fact, pregnant. The court held that the failure of the attempt was due to a circumstance independent of the accused herself, and she was in exactly the same position as a pickpocket who finds the victim's pocket empty. In England, the same principle was affirmed by the House of Lords in R v. Shivpuri (1986 2 All ER 334), where the accused was convicted for dealing in prohibited drugs even though the substance in his possession turned out to be harmless vegetable matter — he believed it to be drugs and acted on that belief.

A Final Illustration

Consider this sequence of events: A harbours a grudge against B. One day, A goes to a hardware shop and purchases a knife — this is intention and preparation. A sharpens the knife at home, packs it in his bag, and walks toward B's house — still preparation, though the act is becoming increasingly unequivocal. A enters B's street, sees B in the distance, and begins running toward him with the knife raised — this is attempt. If B manages to escape and A fails to catch him, A is guilty of attempt to murder under Section 109, BNS. If A reaches B and plunges the knife into him, and B dies, it is murder. If B survives, A may still be convicted under Section 109 depending on the severity of injuries and the circumstances. But at no stage does A escape liability once he has raised the knife and moved toward B — that act, in those circumstances, is unambiguously an attempt.

The law of attempt is, at its heart, an expression of a deeper principle: that society is entitled to protect itself not only from completed wrongs but from those who have set their will firmly in the direction of committing them, and have translated that will into action.