Criminal Law I

14

National law school of India University Criminal Law IAbhayanand Mishra v. State of Bihar

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

CONTENTS

Index Of Authorities3

Introduction4

Background5

Judicial Perceptions In Subsequent Judgements10

Conclusion12

Bibliography14

I. Index Of AuthoritiesI. Table of CasesIndian Cases:Chandi Pershad v. Abdur Rahman(1894) 22 Cal 131.

Empress v. AppasamiI.L.R (1889) 12 Mad. 151.

Macrea R(1893) 15 All. 173.

Malkiat Singh v. State of PunjabAIR 1970 SC 713.

Mishra v.State of Bihar AIR 1961 SC 1698.

Naz Foundation (India) Trust v. Government of NCT, Delhi160(2009)DLT277.

Queen Empress v. Soshi BhushanI.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. YakubAIR 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. Constitution1. The Constitution of India, 1950.

II. INTRODUCTIONThe Indian jurisprudence was divided with regard to the ambit of offence under S. 511[footnoteRef:2] until Abhayanand Mishra v.State of Bihar[footnoteRef:3] which provided the much needed consistency and certainty in the approach to imposition of criminal liability for an attempt under S. 511[footnoteRef:4]. Primarily, it dealt with the imposition of criminal liability in possible attempts, completely excluding itself from the interpretation of S. 511[footnoteRef:5] 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. [2: 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.] [3: AIR 1961 SC 1698 [hereinafter to be referred as Mishra]. ] [4: S. 511, Indian Penal Code, 1860. ] [5: Id. ]

However, Mishra[footnoteRef:6] does not offer a substantial rationale for its decision but bases it upon a literal interpretation of the S. 511[footnoteRef:7]. 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[footnoteRef:8] in the light of the above observations. [6: AIR 1961 SC 1698. ] [7: S. 511, Indian Penal Code, 1860. ] [8: AIR 1961 SC 1698. ]

III. BACKGROUND

1. Abhayanand Mishra v.State of Bihar[footnoteRef:9] was a Special Leave Petition under Art. 136[footnoteRef:10] 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[footnoteRef:11] read with S.511[footnoteRef:12]. [9: AIR 1961 SC 1698. ] [10: Art. 136, Constitution of India, 1950.] [11: 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.] [12: S. 511, Indian Penal Code, 1860. ]

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[footnoteRef:13] rather than falling under the ambit of attempt as under S. 511[footnoteRef:14]. 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.[footnoteRef:15] [13: S. 420, Indian Penal Code, 1860. ] [14: S. 511, Indian Penal Code, 1860. ] [15: See III, 5.]

3. Secondly, the counsel contended that arguendo, the appellant had managed to sit for the examination, he cannot be convicted under S. 420[footnoteRef:16] since cheating, as defined under S. 415[footnoteRef:17], 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[footnoteRef:18] and Queen Empress v. Soshi Bhushan[footnoteRef:19] which essentially established that any certificate which allowed the holder certain privileges would be deemed property under S. 463[footnoteRef:20], hence fulfilling conditions under S. 415[footnoteRef:21]. [16: S. 420, Indian Penal Code, 1860. ] [17: 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".] [18: (1889) 12 Mad. 151. ] [19: I.L.R (1893) 15 All. 210. ] [20: 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.] [21: S. 415, Indian Penal Code, 1860. ]

4. In Mishra[footnoteRef:22], the judgement by Raghubar Dayal, J. rightly dealt with the interpretation of S. 511[footnoteRef:23] 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[footnoteRef:24] was at odds coming up with a precise delineation between attempt and preparation. Attempt has not been defined in the Indian Penal Code.[footnoteRef:25] 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[footnoteRef:26] 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.[footnoteRef:27] 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. [22: AIR 1961 SC 1698. ] [23: S. 511, Indian Penal Code, 1860. ] [24: AIR 1961 SC 1698. ] [25: O.P.Srivastava, Principles of Criminal Law, 45 (5th edn., 2010). ] [26: S. 511, Indian Penal Code, 1860. ] [27: Granville Williams, Textbook on Criminal Law, 374 (2nd edn., 1999).]

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.[footnoteRef:28] This was finally established in R v. Higgins[footnoteRef:29] wherein the court held that an attempt to commit a crime is at common law itself a crime.[footnoteRef:30] Presently, the Criminal Attempts Act, 1981 criminalizes an act which is more than merely preparatory to the commission of the offence[footnoteRef:31]. The English courts have had incongruent interpretation of this provision. In Campbell[footnoteRef:32] and Geddes[footnoteRef:33], 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[footnoteRef:34] 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. [28: J. W. Cecil Turner, Kenny's Outlines of Criminal Law, 101 (15th edn., 1952). ] [29: (1801) 2 East 5 (T.A.C.). ] [30: Kenny, supra note 27, at 102.] [31: S. 1(1), Criminal Attempts Act, 1981.] [32: (1991) 93 Cr App R 350.] [33: [1996] Crim LR 894. ] [34: [1997] Crim LR 746. ]

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.[footnoteRef:35] [35: A.Ashworth, Principles of Criminal Law, 450 (5th edn., 2006). ]

6. Juxtaposition in Indian contexta. Prior to Mishra[footnoteRef:36], a number of Indian judgements based their decisions on the proximity test[footnoteRef:37] while interpreting S. 511[footnoteRef:38]. In Riasat Ali[footnoteRef:39] 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[footnoteRef:40] 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[footnoteRef:41] and Macrea R[footnoteRef:42] 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[footnoteRef:43]. [36: AIR 1961 SC 1698. ] [37: See III, 5. ] [38: S. 511, Indian Penal Code, 1860. ] [39: (1881) 7 Cal 352. ] [40: (1872) 4 NWP 46. ] [41: (1894) 22 Cal 131, 138. ] [42: (1893) 15 All. 173, 177, 178. ] [43: S. 511, Indian Penal Code, 1860. ]

b. Mishra[footnoteRef:44] upheld the non-applicability of the English proximity test in view of the wider ambit envisaged under S. 511[footnoteRef:45]. Raghubar Dayal, J held that a person is criminally liable for an offence under S. 511[footnoteRef:46] when: [44: AIR 1961 SC 1698. ] [45: S. 511, Indian Penal Code, 1860. ] [46: Id. ]

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[footnoteRef:47] 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[footnoteRef:48] coupled with intent-based retributivism[footnoteRef:49] 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.[footnoteRef:50] Hence, having crossed a certain threshold of criminal liability, the doer is held culpable for punishment.[footnoteRef:51] [47: I.L.R. 15 All. 173.] [48: Ashworth, supra note 34, at 451. ] [49: 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). ] [50: S.Shavell, Deterrence and the Punishment of Attempts,19(2), The Journal of Legal Studies, 435, 454 (June, 1990). ] [51: Ashworth, supra note 47, at 450. ]

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.[footnoteRef:52] [52: Id. ]

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[footnoteRef:53] characterised the demarcation between 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[footnoteRef:54] 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[footnoteRef:55] Indian precedents. [53: AIR 1961 SC 1698. ] [54: Id.] [55: Id. ]

IV. Judicial Perceptions in Subsequent Judgements

1. Malkiat Singh v. State of Punjab: Malkiat Singh v. State of Punjab[footnoteRef:56] was the first instance wherein the apex court had the opportunity to accept or reject Mishra[footnoteRef:57]. 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[footnoteRef:58] position vis--vis imputation of criminal liability on execution of any of the steps leading to the commission of the offence. Malkiat[footnoteRef:59] 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[footnoteRef:60] 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. [56: AIR 1970 SC 713[hereinafter to be referred as Malkiat]. ] [57: AIR 1961 SC 1698. ] [58: Id. ] [59: AIR 1970 SC 713. ] [60: See III, 7 (c). ]

2. State of Maharashtra v. Mohd. Yakub: State of Maharashtra v. Mohd. Yakub[footnoteRef:61] was also a deviation from Mishra[footnoteRef:62]. 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. [61: AIR 1980 SC 1111.] [62: AIR 1961 SC 1698. ]

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[footnoteRef:63] of the penal provision to prevent smuggling. [63: AIR 1980 SC 1111. ]

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[footnoteRef:64] and of Diplock, L.J. and Viscount Dilhorne in Director of Public Prosecutions v. Stonehouse[footnoteRef:65]. All three of the judgements had accepted the proximity test of Parke B in Reg. v. Eagleton[footnoteRef:66] 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[footnoteRef:67] 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[footnoteRef:68] 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[footnoteRef:69] 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[footnoteRef:70]. [64: [1975] A. C.476. ] [65: [1977] 2 All E. R. 909. ] [66: (1854) Dears.C.C. 376. ] [67: AIR 1980 SC 1111. ] [68: Id. ] [69: AIR 1970 SC 713.] [70: AIR 1980 SC 1111.]

V. CONCLUSIONAbhayanand Mishra v.State of Bihar[footnoteRef:71] 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[footnoteRef:72], 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[footnoteRef:73]. In congruence with the prescribed actus reus, the offence of attempt to cheat and dishonestly induce delivery of property under S. 511[footnoteRef:74] 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. [71: AIR 1961 SC 1698. ] [72: S. 511, Indian Penal Code, 1860. ] [73: S. 420, Indian Penal Code, 1860. ] [74: S. 511, Indian Penal Code, 1860. ]

The first-step test laid down by Raghubar Dayal, J. in Mishra[footnoteRef:75] has been summarily rejected in the subsequent judgements. It is humbly submitted that Raghubar Dayal, J. interpretation of S. 511[footnoteRef:76] is in conflict with the principle of individual autonomy[footnoteRef:77] 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[footnoteRef:78]. [75: AIR 1961 SC 1698. ] [76: Id. ] [77: See A.Kenny, Freewill and Responsibility, (1st edn., 1978).] [78: D. Husak, The criminal Law as Last Resort, 24(2), Oxford Journal of Legal Studies, 207 (2004). ]

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.[footnoteRef:79] 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[footnoteRef:80] seems to be an instance of colonial continuity[footnoteRef:81] which cannot be allowed in a civilised society governed by a Constitution[footnoteRef:82]. [79: Arudra Burra, The Cobwebs of Imperial Rule, 615, Seminar, 620 (2010). ] [80: S. 511, Indian Penal Code, 1860. ] [81: Arudra Burra, The Cobwebs of Imperial Rule, 615, Seminar, 615 (2010). ] [82: 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. ]

VI. BIBLIOGRAPHY

Books:

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