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The first requisite of a criminal attempt is the intent to commit a specific crime[1]. It doesn’t matter if the crime is complete or not. A mere attempt at a crime is said to be criminal in nature. The additional requirement for the criminal attempt along with mens rea is the specific intent which is the intent to accomplish the crime attempted. In investigating a criminal attempt, one should first consider what the intended result was and then what the defendant has done to bring that result. The acts done are regarded as the steps to the act intended to be done. The physical act that the defendant has set out to do is the main question here. If the physical act intended is not a crime, then the attempt to do it cannot be criminal. In this paper, the nature of a criminal attempt and various aspects defining the complexity of the criminal attempt shall be discussed.


The stages of crime are:

  • Contemplation
  • Preparation
  • Attempt
  • Commission

A crime might be committed with premeditation or at that moment. The first two stages in crime, namely contemplation, and preparation, are not punishable under criminal law except in the cases of grave offenses like dacoity which is defined under Section 391 of the Indian Penal Code, 1860. Criminal law does not apply merely to the thought of committing a crime. In most situations, proving that the preparation was motivated by malice would be impossible. This is because it is very feasible for the individual who had intended to conduct an offense to refrain from doing so. The latter two stages of crime, i.e., attempt and commission of the offense, are both punished as they are offenses.

Once the preparation stage is crossed, the effort made to commit a crime is simply a straightforward move towards the commission of the crime which is intended. It is not just the desire and forcibility but also there needs to be an act that should be done by the perpetuator to carry out the intended act. The attempted commission of a crime is just as dangerous to legally protected interests as the completed act.


Any effort which is invested by a perpetuator to commit a crime is itself criminal in nature, even if the planned act is not completely accomplished. He is penalized for doing anything that furthers his mala fide intention such as doing the planned crime. He becomes liable merely by demonstrating his mens rea to inflict the prohibited harm by actus reus. Actus non facitreum nisi mens sit rea applies which means that there can be no punitive sanction imposed on a person who does not have a culpable mind.

The Indian Penal Code, 1860 defends such criminal policy by arguing that it is necessary to deal with this problem in the initial stages and punish the offender for the measures he has taken toward committing the planned crime. As a result, it criminalizes certain of his actions by classifying them as inchoate offenses. In criminal law, there are three types of inchoate crimes: incitement, attempt, and criminal conspiracy.


The Indian Penal Code, 1860 has dealt with attempts in both ways, specific and general. For some offenses, both the offense and the attempt have been prescribed the same punishment. For some others, punishments have been separately defined for the actual offense and an attempt to do the same. There is an offense prescribed for the commission of suicide and for offenses for which no punishment is prescribed, Section 511 of the Indian Penal Code, 1860 takes care of the same.


The burden is on the prosecution to establish the three fundamental elements of the charge of attempting to commit an offense to achieve a perpetrator’s conviction.

They are as follows:

  • Mens Rea
  • Done something or taken a step forward toward the performance of the envisaged offense.
  • Failed to commit the desired offense for reasons beyond his knowledge or control.


The very nature of a criminal effort resides in the whole purpose of the perpetuator to commit an offense, which must be obvious from his act done to achieve his goal which is unlawful. However, an important but intriguing issue arises as to whether an attempt could be made to accomplish an impossible act. Such an impossibility of doing an act can arise due to legal impossibility, physical impossibility, or impossibility due to ineptitude. It was formerly thought that attempting to achieve something impossible to do was not a crime since it was viewed as if it were only preparation. But now, it is very much accepted that the difficulty of performing an act does not automatically make the goal to achieve it innocently. There is not a single known judicial decision that illustrates the law about impossible efforts.

Munah Binti Ali v Public Prosecutor[2], in which the Federation of Malaya Court of Appeal examined Section 511 of the FMS Penal Code of Malaysia, which is identical to Section 511 of the Indian Penal Code, throws some light into these illustrations. In this case, when the Court Appellate Court pleaded to rule on the lower court’s decision condemning a lady for attempting to abort one more woman who was not pregnant under Section 312 and Section 511 of the FMS Penal Code because the accused learned that the lady was not a pregnant only after she attempted to cause a miscarriage. However, the Criminal Attempts Act 1981 of the United Kingdom has replaced the Common Law penalization of attempts. It contains Section 1 with defines attempt that includes impossible attempts. The scope of Section 1 was examined by the courts in R v Shivpuri.[3]

In this case, the appellant was detained by customs authorities while in possession of a bag containing what he thought to be illegal substances. He admitted to authorities after his detention that he was trafficking in illegal substances. However, research revealed that the stuff in the suitcase was not narcotics, but snuff or other innocuous vegetative debris. Despite this, he was charged with criminal attempts under Section 1 of the Criminal Attempts Act 1981 and customs and excise management under Section 170(b) of the Customs and Excise Management Act 1979.


There is a very thin line difference between the point where the preparation ends and the attempt begins. The Supreme Court, in the case of Abhayananda Mishra v. State of Bihar[4], has ruled that it need not be a penultimate act but any act closer to the final act which has completed the preparation has entered the stage of Attempt. This is what the Court has said to be the Proximity Test. In this case, Abhayananda wants to do his Masters at Patna University for which he has filled in the form for admission and attached all the required documents. The application reached the University and he was given the ticket to give the test but later in times, the University could find out that the documents submitted by him were fake and it immediately canceled his candidature for giving the test and the Court held that he was liable under Section 420 of the Indian Penal Code. The Court explained that he lost his control over the process once he posted his application. It was close enough for him to take the test but then somehow the university came to know about the facts. So, the pleading of the person that he was still in the preparation stage was ruled out. A similar ruling was given by the Court in State of Maharashtra v. Mohommed Yakub[5]. There are also other tests like the Locus Poenitentiae test, Social Danger test, and Equivocality test which are used to determine the same.


The Indian Fifth Law Commission has voiced displeasure with the way the law of attempt, in general, and Section 511 is drafted and implemented in India. It stated that the design of Section 511 is both ambiguous as well as not of much help in defining what attempt means, determining the ingredients of attempt, and as to how to distinguish preparation from the attempt.  The Statute Commission suggested several substantial substantive and structural modifications to the law to make it more specific via the Indian Penal Code (Amendment) Bill, 1978. However, the Bill expired due to the dissolution of the Lok Sabha in 1980. Therefore, they were unable to make it law. Following that, no legislative attempts to revive these measures are taken.

The Fourteenth Law Commission declined to support these Penal Code revisions as well. It was suggested that Section 511 be removed from the Penal Code and proposed Section 120C and Section 120D be added instead. Its main grounds for rejection were that it is difficult to formulate a satisfactory and exhaustive definition that sets up a criterion for deciding where preparation for an offense ends and attempt to commit that offense begins and mere proximity in time or place does not draw a clear line between preparation and attempt.[6]


If an attempt is successful, the intended act is accomplished and the expected result is obtained as well, then it is no more an attempt it is said to be the commission of the actual crime in question whereas if the entire intended act is done but the desired result is not obtained, then, in that case, it is said to be in the stage of the attempt itself and the perpetuator is liable for the offense of attempt in this case.[7]

Author(s) Name: Amulya Bhavana (Indian Institute of Technology, Kharagpur)


[1] Criminal Attempts at Common Law, Volume 102, Edwin R. Keedy

[2] (1958) 24 Malayan Law Journal 159(CA)

[3] [1986] 2 All ER 334 (HL)

[4] 1961 SC 1698

[5] 1980 AIR 111

[6] Law Commission of India, ‘One Hundred Fifty-Sixth Report: The Indian Penal Code’, Government of India, 1997, para 6.16

[7] Harvard Law Review, Vol 16 No. 7 (May 1903) pp. 491-507