Abhayanand Mishra V/s State Of Bihar

 Vs THE STATE OF BIHAR DATE OF JUDGMENT DAYAL RAGHUBAR DAYAL RAGHUBAR SUBBARAO K 1961 AIR 1698 1962 SCR 241 CITATOR INFO R 1961 SC1782 ss. 420 511 The appellant applied to the Patna University for permission to appear at the 1954 M. A. Examination in English as a private candidate representing that he was a graduate having obtained his B. A. Degree in 1951 and that he had been teaching in a certain school. Believing his statements the University authorities gave him the necessary permission and on his remitting the requisite fees and sending copies of his photograph as required a proper admission card for him was dispatched to the Headmaster of the School. As a result of certain information received by the University an investigation was made and it was found that the appellant was neither a graduate nor a teacher as represented by him and that in fact he had been de barred from taking any University examination for a certain number of years on account of his having committed corrupt practice at a University examination. He was prosecuted and convicted under s. 420 read with s. 511 of the Indian Penal Code of the offence of attempting to cheat the University by false representations by inducing it to issue the admission card which if the fraud had not been detected would have been ultimately delivered to him. The appellant contended that on the facts found the conviction was unsustainable on the groundsthat the admission card had no pecuniary value and was therefore not property under S 415 andthat in any case the steps taken by him did not go beyond the stage of preparation for the commission of the offence of cheating and did not therefore make out the offence of attempting to cheat Held that under s. 511 of the Indian Penal Code a person commits the offence of attempting to commit a particular offence when he intends to commit that particular offence and having made preparations and with the intention to commit that 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 such offence. It is not necessary for the offence under s. 511 that the transaction commenced must end in the crime or offence if not interrupted The observations to the contrary in The Queen v. Ramsarun Chowbey 4 N. W. P. 46 In the matter of the Petition of Raisat Ali I.L.R. 7 Cal. 352 and In re Amrita Bazar Patrika Press Ltd. I.L.R. 47 Cal. 190 not In the matter of the Petition of R. MacCrea I.L.R 15 All. 173 approved In re T. Munirathnan Reddi A.I.R. 1955 And. Prad. 118 Held further that an admission card issued by the Univer sity for appearing at the Examination held by it though it has no pecuniary value has immense value to the candidate and is property within the meaning Of S. 415 Of the Indian Queen Empress v. Appasami I.L.R. 12 Mad. 151 and Queen Empress v. Soski Bhusan I.L.R. 15 All. 210 In the present case the preparation was complete when the appellant had prepared the application for the purpose of submission to the University and the moment he despatched it he entered the realm of attempting to commit the offence of cheating. Accordingly the appellant was rightly convicted of the offence under s. 420 read with S. 511 of the Indian Penal Code CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 226 of Appeal by special leave from the judgment and order dated September 23 1958 of the Patna High Court in Criminal Appeal No. 857 H. J. Umrigar P. Rana and M. K. Ramamurai for the 243 H. R. Khanna and T. M. Sen for the respondent 1961. April 24. The Judgment of the Court was delivered by RAGHUBAR DAYAL J. This appeal by special leave is against the order of the High Court at Patna dismissing the appellant’s appeal against his conviction under s. 420 read with s. 511 ’of the Indian Penal Code The appellant applied to the Patna University for permission to appear at the 1954 M. A. Examination in English as a private candidate representing that he was a graduate having obtained his B.A. Degree in 1951 and that he had been teaching in a certain school. In support of his application he attached certain certificates purporting to be from the Headmaster of the School and the Inspector of Schools. The University authorities accepted the appellant’s statements and gave permission and wrote to him asking for the remission of the fees and two copies of his photograph. The appellant furnished these and on April 9 1954 proper admission card for him was despatched to the Headmaster of the School Information reached the University about the appellant’s being not a graduate and being not a teacher. Inquiries were made and it was found that the certificates attached to the application were forged that the appellant was not a graduate and was not a teacher and that in fact he had been de barred from taking any University examination for a certain number of years on account of his having committed corrupt practice at a University examination. In consequence the matter was reported to the police which on investigation prosecuted the appellant The appellant was acquitted of the charge of forging those certificates but was convicted of the offence of attempting to cheat inasmuch as he by false representations deceived the University and induced the authorities to issue the admission card which if the fraud had not been detected would have been ultimately delivered to the appellant Learned counsel for the appellant raised two contentions The first is that the facts found did not amount to the appellant’s committing an attempt to cheat the University but amounted just to his making preparations to cheat the University. The second is that even if the appellant had obtained the admission card and appeared at the M. A. Examination no offence of cheating under s. 420 Indian Penal Code would have been committed as the University would not have suffered any harm to its reputation. The idea of the University suffering in reputation is too remote. The offence of cheating is defined in s. 415 Indian Penal Code which reads "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 omis sion causes or is likely to cause damage or harm to that person in body mind reputation or property is said to ’cheat’ Explanation. A dishonest concealment of facts is a deception within the meaning of this section." The appellant would therefore have cheated the University if he haddeceived the University fraudulently or dishonestly induced the University to deliver any property to him or had intentionally induced the University to permit him to sit at the M.A. Examination which it would not have done if it was not so deceived and the giving of such permission by the University caused or was likely to cause damage or harm to the University in reputation. There is no doubt that the appellant by making false statements about his being a graduate and a teacher in the applications he had submitted to the University did deceive the University and that his intention was to make the University give him permission and deliver to him the admission card which would have enabled him to sit for the M.A. Examination. This card is ’Property’. The appellant would therefore have committed the offence of ’cheating’ if the admission card had not been withdrawn due to certain information reaching the We do not accept the contention for the appellant that the admission card has no pecuniary value and is therefore not ’property’. The admission card as such has no pecuniary value but it has immense value to the candidate for the examination. Without it he cannot secure admission to the examination hall and consequently cannot appear at the In Queen Empress v. Appasamiit was held that the ticket entitling the accused to enter the examination room and be there examined for the Matriculation test of the University In Queen Empress v. Soshi Bhushanit was held that the term ’property’ in s. 463 Indian Penal Code included the written certificate to the effect that the accused had attended during a certain period a course of law lectures and had paid up his fees We need not therefore consider the alternative case regarding the possible commission of the offence of cheating by the appellant by his inducing the University to permit him to sit for the examination which it would not have done if it had known the true facts and the appellant causing damage to its reputation due to its permitting him to sit for the examination. We need not also therefore consider the further question urged for the appellant that the question of the University suffering in its reputation is not immediately connected with the accused’s conduct in obtaining the necessary permission Another contention for the appellant is that the facts proved do not go beyond the stage of reparation for the commission of the offence of ‘cheating’ and do not make out the offence of attempting to cheat. There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly a culprit first intends to commit the offence then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds he has committed the offence if it fails due to reasons beyond his control he is said to have attempted to commit the offence. Attempt to commit an offence therefore can be said to begin when the preparations 1)I.L.R. 12 Mad. 151 2)I.L.R. 15 All. 210 are complete and the culpit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention he commences his attempt to commit the offence. This is clear from the general expression ’attempt to commit an offence’ and is exactly what the provisions of s. 511 Indian Penal Code require. The relevant portion of s. 511 is "Whoever attempts to commit an offence punish able by this Code......... 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 These provisions require that it is only when one firstly attempts to commit an offence and secondly in such attempt does any act towards the commission of the offence that he is punishable for that attempt to commit the offence. It follows therefore that the act which would make the culprit’s attempt to commit an offence punishable must be an act which by itself or in combination with other acts leads to the commission of the offence. The first step in the commission of the offence of cheating therefore must be an act which would lead to the deception of the person sought to be cheated. The moment a person takes some step to deceive the person sought to be cheated he has embarked on a course of conduct which is nothing less than an attempt to commit the offence as contemplated by s 511. He does the act with the intention to commit the offence and the act is a step towards the commission of the It is to be borne in mind that the question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it. No exhaustive precise definition of what would amount to an attempt to commit an offence is possible. The cases referred to make this clear 247 We may refer to some decided cases on the construction of s 511 Indian Penal Code In The Queen v. Ramsarun Chowbeyit was said at p. 47 "To constitute then the offence of attempt under this sectionthere must be an act done with the intention of committing an offence and for the purpose of committing that offence and it must be done in attempting the commission of the offence Two illustrations of the offence of attempt as defined in this section are given in the Code both are illustrations of cases in which the offence has been committed. In each we find an act done with the intent of committing an offence and immediately enabling the commission of the offence although it was not an act which constituted a part of the offence and in each we find the intention of the person making the attempt was frustrated by circumstances independent of his own volition From the illustrations it may be inferred that the Legislature did not mean that the act done must be itself an ingredientof the offence attempted The learned Judge said further at p. 49 "I regard that termas here employed as indicating the actual taking of those steps which lead immediately to the commission of the offence although nothing be done or omitted which of itself is a necessary constituent of the offence attempted We do not agree that the ’act towards the commission of such offence’ must be ’an act which leads immediately to the commission of the offence’. The purpose of the illustration is not to indicate such a construction of the section but to point out that the culprit has done all that be necessary for the commission of the offence even though he may not actually succeed in his object and commit the offence. The learned Judge himself emphasized this by observing at p. 48 "The circumstances stated in the illustrations to (1872) 4 N.W.P. 46 248 s. 51 1 Indian Penal Code would not have constituted attempts under the English law and I cannot but think that they were introduced in order to show that the provisions of Section 51 1 Indian Penal Code were designed to extend to a much wider range of cases than would be deemed punishable as offences under the English Law In In the matter of the petition of R. MacCreait was held that whether any given act or series of acts amounted to an attempt which the law would take notice of or merely to preparation was a question of fact in each case and that s. 511 was not meant to cover only the penultimate act towards the completion of an offence and not acts precedent if those acts are done in the course of the attempt to commit the offence and were done with the intent to commit it and done towards its commission. Knox J. said at p. 179 "Many offences can easily be conceived where with all necessary preparations made a long interval will still elapse between the hour when the attempt to commit the offence commences and the hour when it is completed The offence of cheating and inducing delivery is an offence in point. The time that may elapse between the moment when the preparations made for committing the fraud are brought to bear upon the mind of the person to be deceived and the moment when he yields to the deception practiced upon him may be a very considerable interval of time. There may be the interposition of inquiries and other acts upon his part. The acts whereby those preparations may be brought to bear upon her mind may be several in point of number and yet the first act after preparations completed will if criminal in itself be beyond all doubt equally an attempt with the ninety and ninth act in the series Again the attempt once begun and a criminal act done in pursuance of it towards the commission of the act attempted does not cease to be a criminal attempt in my opinion because the person I.L.R. 15 All. 173 249 committing the offence does or may repent before the attempt is completed Blair J. said at p. 181 "It seems to me that sectionuses the word ’attempt’ in a very large sense it seems to imply that such an attempt may be made up of a series of acts and that any one of those acts done towards the commission of the offence that is conducive to its commission is itself punishable and though the act does not use the words it can mean nothing but punishable as an attempt. It does not say that the last act which would form the final part of an attempt in the larger sense is the only act punishable under the section. It says expressly that whosoever in such attempt obviously using the word in the larger sense does any act etc. shall be punishable. The term ’any act’ excludes the notion that the final act short of actual commission is alone punishable We fully approve of the decision and the reasons therefor Learned counsel for the appellant relied on certain cases in support of his contention They are not much to the point and do not in fact express any different opinion about the construction to be placed on the provisions of s. 511 Indian Penal Code. Any different view expressed has been due to an omission to notice the fact that the provisions of s. 511 differ from the English Law with respect to ’attempt to commit an offence’ In Queen v. Paterson the publication of banns of marriage was not held to amount to an attempt to commit the offence of bigamy under s. 494 Indian Penal Code. It was observed at p. 317 "The publication of banns may or may not be in cases in which a special license is not obtained. a condition essential to the validity of a marriage but common sense forbids us to regard either the publication of the banns or the procuring of the license as a part of the marriage ceremony I.L.R. 1 All. 316 32 The distinction between preparation to commit a crime and an attempt to commit it was indicated by quoting from Mayne’s Commentaries on the Indian Penal Code to the effect "Preparation consists in devising or arranging the means or measures necessary for the commission of the offence the attempt is the direct movement towards the commission after the preparations have been made In Regina v. Padala Venkatasamithe preparation of a copy of an intended false document together with the purchase of stamped paper for the purpose of writing that false document and the securing of information about the facts to be inserted in the document were held not to amount to an attempt to commit forgery because the accused had not in doing these acts proceeded to do an act towards the commission of the offence of forgery In In the matter of the petition of Riasat Ali the accused’s ordering the printing of one hundred receipt forms similar to those used by a company and his correcting proofs of those forms were not held to amount to his attempting to commit forgery as the printed form would not be a false document without the addition of a seal or signature purporting to be the seal or signature of the company. The learned Judge observed at p. 356 "........... I think that he would not be guilty of an attempt to commit forgery until he had done some act towards making one of the forms a false document. If for instance he had been caught in the act of writing the name of the Company upon the printed form and had only completed a single letter of the name I think that he would have been guilty of the offence charged because’the actual transaction would have commenced which would have ended in the crime of forgery if not interrupted’ The learned Judge quoted what Lord Blackburn said in Reg. v. Chessman(1881) I.L.R. 3 Mad. 4 2)I.L.R. 7 Cal. 352 3) Lee & Cave’s Rep. 145 "There is no doubt a difference between the preparation antecedent to an offence and the actual attempt but if the actual transaction has commenced which would have ended in the crime if not interrupted there is clearly an attempt to commit the crime." He also quoted what Cockburn C. J. said in M’Pher son’s Casean attempt to commit a crime is an act done with an intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted. To put the matter differently attempt is an act done in part execution of a criminal design amounting to more than mere preparation but falling short of actual consummation and possessing except for failure to consummate all the elements of the substantive crime in other words an attempt consists in the intent to commit a crime combined with the doing of some act adapted to but falling short of its actual commission it may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted: Reg. v. Collins This again is not consistent with what is laid down in s 511 and not also with what the law in England is In Stephen’s Digest of Criminal Law 9th Edition attempt’ is defined thus 1) Dears & B. 202. (1920) I.L.R. 47 Cal. 100 3) 9 Cox. 497 "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 An act done with intent to commit a crime the commission of which in the manner proposed was in fact impossible is an attempt to commit that crime The offence of attempting to commit a crime may be committed in cases in which the offender voluntarily desists from the actual commission of the crime itself In In re: T. Munirathnam Reddiit was said at p. 122 "The distinction between preparation and attempt may be clear in some cases but in most of the cases the dividing line is very thin. Nonetheless it is a real distinction The crucial test is whether the last act if uninterrupted and successful would constitute a crime. If the accused intended that the natural consequence of his act should result in death but was frustrated only by extraneous circumstances he would be guilty of an attempt to commit the offence of murder. The illustrations in the sectionbring out such an idea clearly. In both the illustrations the accused did all he could do but was frustrated from committing the offence of theft because the article was removed from the jewel box in one case and the pocket was empty in the other case The observations ’the crucial test is whether the last act if uninterrupted and successful would constitute a crime’ were made in connection with an attempt to commit murder by shooting at the victim and are to be understood in that context. There the nature of the offence was such that no more than one act was necessary for the commission of the 1) A.I.R. 1955 And. Prad. 118 We may summarise our views about the construction of s. 511 Indian Penal Code thus: A personal commits the offence of ’attempt to commit a particular offence’ whenhe intends to commit that particular offence andhe 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 In the present case the appellant intended to deceive the University and obtain the necessary permission and the admission card and not only sent an application for permission to sit at the University examination but also followed it up on getting the necessary permission by remitting the necessary fees and sending the copies of his photograph on the receipt of which the University did issue the admission card. There is therefore hardly any scope for saying that what the appellant had actually done did not amount to his attempting to commit the offence and had not gone beyond the stage of preparation. The preparation was complete when he had prepared the application for the purpose of submission to the University. The moment he dispatched it he entered the realm of attempting to commit the offence of ’cheating’. He did succeed in deceiving the University and inducing it to issue the admission card. He just failed to get it and sit for the examination because something beyond his control took place inasmuch as the University was informed about his being neither a graduate nor a teacher We therefore hold that the appellant has been rightly convicted of the offence under s. 420 read with s. 511 Indian Penal Code and accordingly dismiss the appeal

Summary: Law punishes when preparation to commit offence is completed and there has been an attempt to commit offence. [Case Brief] Abhayanand Mishra V/S State Of Bihar  Case name: Abhayanand Mishra V/s State Of Bihar Citation: 1961 AIR 1698 Court: The Supreme Court Of India Bench: Justice Raghubar Dayal, Justice K.Subbarao Decided on: APRIL 24, 1961 Relevant Act/Sections: Section 420, 511 of IPC, 1860    The appellant applied to the Patna University for permission to appear at the 1954 M.A Examination in English as a grad of B.A degree in 1951 and teaching in certain school.Necessary permission was given to him and the appellant paid the fees and submitted the photograph as required for admission.It was later found the appellant doesn’t have any degree or teaching anywhere and was barred for certain years because of corruption charges.The appellant was prosecuted and convicted under s.420 read with s.511 of Indian Penal Code, 1860.The appellant has come before the Hon’ble Supreme Court. PROCEDURAL HISTORY: This appeal, by special leave, is against the order of the High Court at Patna dismissing the appellant’s appeal against his conviction under section 420, read with section 511, of the Indian Penal Code. ISSUE BEFORE THE COURT: Whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it?Whether the last act, if uninterrupted and successful, would constitute a crime? RATIO OF THE COURT: The court contended that in Queen Empress v. Soshi Bhushan (2) it was held that  the term  ’property’ in s. 463, Indian Penal Code, included  the written  certificate  to  the effect that  the  accused  had attended, during a certain period, a course of law  lectures and had paid up his fees. We   need  not  therefore  consider  the  alternative   case regarding the possible commission of the offence of cheating by  the appellant, by his inducing the University to  permit him to sit for the examination, which it would not have done if  it  had known the true facts and the  appellant  causing damage  to its reputation due to its permitting him  to  sit for  the examination. The court need not also therefore  consider the  further  question urged for  the  appellant  that  the question  of the University suffering in its  reputation  is not  immediately  connected with the  accused’s  conduct  in obtaining the necessary permission. Another  contention  for  the appellant is  that  the  facts proved  do  not go beyond the stage of  reparation  for  the commission of the offence of ‘cheating’ and do not make  out the  offence of attempting to cheat.  There is a  thin  line between  the  preparation for and an attempt  to  commit  an offence.  Undoubtedly, a culprit first intends to commit the offence,  then  makes  preparation  for  committing  it  and thereafter  attempts to commit the offence.  If the  attempt succeeds,  he has committed the offence; if it fails due  to reasons beyond his control, he is said to have attempted  to commit   the The court referred to Queen   Paterson  (1), Regina  v. Padala Venkatasami (1) whether the last  act, if  uninterrupted and successful, would constitute a  crime.The court observed that their views about the construction of s. 511, Indian Penal Code, thus: A personal 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  the present case, the appellant intended to deceive  the University  and  obtain  the necessary  permission  and  the admission  card  and,  not  only  sent  an  application  for permission  to sit at the University examination,  but  also followed  it  up, on getting the  necessary  permission,  by remitting  the necessary fees and sending the copies of  his photograph, on the receipt of which the University did issue the admission card. There is therefore hardly any scope for saying that  what the appellant had actually done  did  not amount  to his attempting to commit the offence and had  not gone  beyond the stage of preparation.  The preparation  was complete  when  he  had prepared  the  application  for  the purpose  of  submission to the University.The moment  he dispatched it, he entered the realm of attempting to  commit the offence of ’cheating’.  He did succeed in deceiving  the University and inducing it to issue the admission card.   He just  failed to get it and sit for the  examination  because something  beyond  his control took place  inasmuch  as  the University  was informed about his being neither a  graduate nor a teacher. DECISION HELD BY COURT: In this case the judgment was given by JUSTICE RAGHUBAR DAYAL We therefore  hold  that the  appellant  has  been  rightly convicted of the offence under s. 420, read with  section 511, Indian Penal Code, and accordingly dismiss the  Appeal dismissed.