Stages of Crime in Criminal Laws – Mens Rea | Preparation | Attempt

The stages of crime in criminal law provide a structured framework to understand the progression of a criminal act. The first stage is Mens Rea, which refers to the intention or mental state behind the crime, encapsulated by the maxim "actus non facit reum nisi mens sit rea" (an act does not make one guilty unless accompanied by a guilty mind). The second stage is Preparation, involving the planning or arrangement of means necessary to commit the crime. Although preparation itself is generally not punishable, exceptions exist under specific legal provisions like the Bharatiya Nyaya Sanhita, 2023.
The third stage, Attempt, signifies a direct move towards the commission of the offence after preparation. Attempts are punishable as they demonstrate clear intent and proximity to completing the crime. Finally, the fourth stage is the Commission of the crime, where all elements of the offence are fulfilled, and the act is completed. These stages collectively help in understanding the intent, actions, and legal culpability at each phase, ensuring fair and proportional justice.

Table of Contents

1. Mens Rea
2. Preparation
3. Attempt
4. Difference between Preparation and Attempt
5. Test to Distinguish Preparation from Attempt

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The path from criminal thought to criminal act is rarely a straight line. Criminal law often recognises a series of stages a crime can go through, offering a window into the offender’s developing intent and the potential for intervention. Understanding these stages is crucial for law enforcement, legal professionals, and society at large. These stages range from the initial spark of a criminal idea to the act itself and even the possibility of stopping the crime before completion. By recognising these phases, we can not only assess the level of criminal intent but also potentially prevent crimes from happening altogether.

In the commission of an offence, there are several stages that lead to a criminal offence. In the absence of those stages, the offence might fall under the purview of the accident, for which the legal remedy will be compensation and not punishment. In common law, there are described four stages of crime, i.e., mens rea (intention), actus reus (act), which is further classified into preparation and attempt, and lastly, the accomplishment of the mens rea (commission). In simple words, the four stages are mens rea, preparation, attempt, and commission. The stages of crime may be briefed under the following headings:

1. Mens Rea

Criminal law, foundational to a fair and just society, operates on the principle of proportionality, where punishment aligns with the gravity of the offence. Yet, the assessment of severity does not solely rely on the action itself but also on the mental state of the individual involved. This is where the Latin maxim “actus non facit reum nisi mens sit rea” becomes pivotal, signifying that “the act itself does not make a person guilty unless their mind is guilty”. This core principle, known as mens rea, forms the essence of a fair criminal justice system. It ensures that punishment is not merely dictated by the act committed, but also takes into account the mental state of the individual responsible.

2. Preparation

The path from criminal thought to criminal act is a gradual process, with preparation marking a critical stage. While not a crime itself, preparation signifies a more serious intent than mere contemplation. Preparation involves taking concrete steps towards a planned crime, like acquiring tools or researching methods. It’s distinct from an attempt, which involves directly trying to commit the crime. Recognising preparation allows for intervention to prevent the crime before it happens. Preparation is not punishable because, after making the preparation, there may be change in the mind. The person, after making preparations to commit the crime, may drop the idea. Preparation means arranging or devising means to commit the crime.¹

2.1 Preparation – An offence under BNS

Generally, the preparation is no offence under the common law; however, there are several exceptions provided under the Bhartiya Nyaya Sanhita, 2023, which criminalised the act of preparation, for example:

• Section 148: Conspiracy to commit offences punishable by Section 147;²
• Section 149: Collecting arms, etc., with intention of wagering war against Government of India;
• Section 154: Committing depredation on territories of foreign State at peace with Government of India;
• Section 307: Theft after preparation made for causing death, hurt, or restraint in order to commit theft.
• Section 310(4): Preparation to commit dacoity;
• Section 310(5): Mere assembly for the purpose of committing dacoity;
• Sections 179, 180, 181 and 182: Making, selling or being in possession of instruments for counterfeiting coins or stamps; etc.

2.2 Preparation – A relevant evidence under BSA

Also, under the Bharatiya Sakshya Adhiniyam, 2023 (BSA), the evidence of preparation is relevant in considering the commission of an offence. Section 6 of the BSA talks about the “Motive, Preparation, and Previous or Subsequent Conduct,” which provides that “any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.” For example, A is tried for the murder of B by poison. The fact that, before the death of B, A procured poison similar to that which was administered to B, is relevant as evidence of preparation.

In R v. Palmer,³ the defendant was charged with the murder of his friend by poisoning him with arsenic. In his summing-up to the jury, Lord Campbell, CJ stated:

“Then, gentlemen, comes the more direct evidence that the prisoner procured this very poison— for what purpose was that obtained? You have no account for that purpose. What was the intention with which it was purchased, and what was the application of it, you are to infer.”

This statement by Lord Campbell, CJ emphasises the importance of considering the purpose and intention behind the procurement of the poison as a factor in determining guilt in the case.

3. Attempt

Attempt, a critical stage in the evolution of a crime, signifies the offender’s act in furtherance of the criminal intent. It bridges the gap between mere thought and the completed offence. The Bharatiya Nyaya Sanhita, though lacking a specific definition for attempt, recognises its significance through Section 62, which lays down punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. Section 62 provides:

“Whoever attempts to commit an offence punishable by this Sanhita 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 by this Sanhita for the punishment of such attempt, be punished with 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.”

The legal contours of attempts have been further shaped by judicial pronouncements. Justice R.S. Sarkaria, in the landmark case of State of Rajasthan v. Mst. Champa,⁴ elucidated the distinction between preparation and attempt. He stated, “Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. But attempt is the direct movement towards the commission after preparations are made.” This distinction ensures that mere planning or gathering resources isn’t criminalised, but only the overt act towards the offence.

3.1 Proximity to Completion of Crime

The proximity to completion of the crime is another crucial factor. Justice Krishna Iyer, in K. Nagaraj v. Union of India,⁵ emphasised this aspect, stating,

“An attempt to prepare is not an attempt to commit the crime…The act must be proximate and not remote.”

This ensures that the law prosecutes only attempts with a high likelihood of causing harm.

Case law further clarifies the nuances of attempts. In Gurbachan Singh v. State of Punjab,⁶ the accused was caught while attempting to break into a house with housebreaking tools. The Court held this to be an attempt, highlighting the accused’s move beyond mere preparation. Conversely, in State of West Bengal v. S.N. Banerjee,⁷ where the accused merely expressed a desire to kill someone without taking any concrete steps, it was deemed preparation, not attempt.

In conclusion, attempt occupies a vital space in Indian criminal law. The interplay of Section 62, judicial pronouncements, and case law establishes a framework for identifying and punishing attempts. This ensures that individuals with a well-developed criminal intent and taking concrete steps towards its execution are held accountable, promoting public safety and deterring crime.

4. Difference between Preparation and Attempt

The criminal justice system navigates a delicate balance between punishing harmful acts and respecting mere thoughts. The distinction between preparation, the gathering of resources for a crime, and attempt, the actual taking of steps towards committing it, is crucial in determining criminal culpability.

4.1 Preparation & Attempt under BNS

The Bharatiya Nyaya Sanhita itself doesn’t provide a specific definition for either preparation or attempt. However, Section 62 recognises the gravity of attempts by prescribing “punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.” This section, along with judicial interpretations, sheds light on the dividing line between these two stages.

4.2 Distinction with Relevant Cases

Preparation, in essence, is the preliminary phase. It involves acquiring the tools, formulating a plan, or creating circumstances conducive to the crime. Justice R.S. Sarkaria, in the landmark case of State of Rajasthan v. Mst. Champa,⁸ offered a clear distinction: “Preparation consists in devising or arranging the means or measures necessary for the commission of the offence.” Stockpiling weapons for a robbery or researching how to forge documents are examples of preparation. These acts, though indicative of criminal intent, are not yet a direct move towards committing the crime.

Attempt, on the other hand, signifies a more advanced stage. It involves taking concrete steps that put the criminal plan into motion. Here, Justice Krishna Iyer’s observation in K. Nagaraj v. Union of India⁹ is insightful: “An attempt to prepare is not an attempt to commit the crime…” Breaking into a house with tools, aiming a gun with the intent to shoot, or attempting to pick a pocket constitute attempts. These actions demonstrate a clear move towards the completion of the crime, even if it’s ultimately unsuccessful.

The proximity to completion of the offence is another crucial factor. Mere possession of a weapon, without any concrete steps towards using it, wouldn’t be considered an attempt. This distinction ensures the law only prosecutes attempts with a high likelihood of causing harm. The case of Gurbachan Singh v. State of Punjab¹⁰ exemplifies this. Here, the accused was caught while attempting to break into a house with tools, demonstrating an act beyond mere preparation.

In contrast, the case of State of West Bengal v. S.N. Banerjee¹¹ illustrates the line between preparation and attempt. The accused merely expressed a desire to kill someone without taking any concrete steps. This was deemed preparation, not attempt, as it lacked the necessary proximity to the crime.

In conclusion, the distinction between preparation and attempt is critical in criminal law. Recognising this difference ensures that individuals with criminal intent but who haven’t taken concrete steps are not punished as harshly as those who have actively attempted to commit the crime. This maintains a balance between protecting public safety and safeguarding against the criminalization of mere thoughts. By analyzing the criminal intent, the actions taken, and the proximity to completion, the legal system can effectively differentiate between planning and taking a criminal act a step too far.

5. Test to Distinguish Preparation from Attempt

The line between planning a crime and actively taking steps to commit it can be blurry. Criminal law, however, recognises a crucial distinction between preparation and attempt. Preparation, though indicative of criminal intent, doesn’t warrant punishment. Attempt, on the other hand, signifies a more advanced stage, where the offender takes concrete actions towards the crime’s completion. Determining this distinction relies on a series of tests developed through judicial pronouncements, namely:

1. Proximity Test
2. Locus Poenitentiae Test
3. Non-Equivocality Test
4. Social Danger Test

5.1 Proximity Test

The “proximity test” in criminal law is a principle used to determine whether an accused individual has taken a substantial step towards the commission of a criminal offence, particularly in cases of attempted crimes. It helps to establish when an act goes beyond mere preparation and becomes an actual attempt to commit the offence.

Under the proximity test, the court examines the actions of the accused to determine if they were so close to completing the offence that they should be considered guilty of attempted commission. The focus is on whether the accused’s conduct was proximate or close to the completion of the crime.

Where the act is sufficiently proximate enough to the intended offence and not remotely connected to it, it is an attempt to commit the offence.

In R v. Taylor,¹² the defendant, Taylor, was charged with attempting to commit the offence of arson by setting fire to a haystack. The case involved the application of the proximity test to determine whether Taylor’s actions amounted to a substantial step towards the commission of the offence.

Illustrations – The proximity can be better understood from the various illustrations hereinafter provided. These scenarios illustrate the application of the proximity test, where the court examines the accused’s actions and intent to determine whether they have taken a substantial step towards the commission of the offence.

Illustration 1 – A was striking a match behind a haystack but extinguished it upon perceiving that somebody was watching. In this scenario, the court held that A was guilty of attempting to commit arson. Despite not lighting the haystack on fire, A’s act of striking a match behind the haystack was considered a substantial step towards the completion of the offence. A’s intention and the proximity of his actions to the completion of the crime were key factors in determining his guilt.¹³

Illustration 2 – A had purchased the matchbox and gone near the stack to put it on fire but had not yet lit the matchstick. In this scenario, the court held that A would not have been guilty of attempted arson. Mere preparation, such as purchasing the matchbox and going near the haystack, without taking a further step towards igniting the fire, would not constitute an attempt.

Illustration 3 – A takes the defence that he went near the haystack, but he lit the matchstick for lighting his cigarette. In this scenario, if A could establish his case that he intended to light the matchstick for a legitimate purpose, such as lighting a cigarette, and not for the purpose of arson, he would not have been guilty of attempted arson. Intent plays a crucial role in determining whether an act constitutes an attempt.

Relevant cases specifying distinction – In the case of R. v. Raisat Ali,¹⁴ the accused had ordered the printing of 100 forms similar to those used by the Bengal Coal Company in previous orders. After receiving the printed forms, he began reviewing the initial proofs and made corrections. However, before he could finalise the forms to resemble the company’s originals, he was apprehended by authorities.

Facing charges of attempted forgery, the court deliberated on whether the accused’s actions constituted a substantial step towards completing the offence. It was determined that for the offence of forgery to have been completed, the accused would have needed to obtain and use the seal or signature of the Bengal Coal Company. Since the accused had not yet reached this stage in his actions, the court concluded that his conduct did not constitute a substantial step towards the completion of the offence.

Therefore, the court illustrated the principle that an attempt to commit a crime must involve more than mere preparation, it must entail a substantial step towards the completion of the offence. In the context of forgery, the court found that the accused’s actions did not progress to the point where the offence could have been finalised.

In the case of R. v. Lawson,¹⁵ the accused engaged in discussions of sexual matters with a boy, promising him money in exchange for details about his experiences with girlfriends. When they met again two days later, the accused resumed the conversation on the same topic. At this point, the boy expressed his discomfort with the conversation and began to walk away. The accused then proceeded to follow him.

Subsequently, the police, who had been informed beforehand, intervened and arrested the accused. However, in the legal proceedings, the accused was found not guilty. The Court grappled with the challenge of delineating between preparation and attempt in such cases, finding it difficult to draw a clear line.

Therefore, in this case, the Court faced complexities in determining when preparatory actions cross the threshold into an actual attempt, particularly in matters involving discussions of sensitive or illegal topics. This case highlighted the challenges in defining the boundaries between preparation and an attempt to commit an offence.

Distinction specified by Supreme Court – In the case of State of Maharashtra v. Mohammad Yakub and others,¹⁶ the customs authorities acted on secret information indicating the potential smuggling of silver out of India. They surveyed a truck transporting silver ingots to a sea-creek, where the truck eventually stopped. At this location, individuals were observed unloading silver ingots from the truck and placing them on the ground. Simultaneously, the sound of a mechanised sea-craft approaching the shore near the ingots was heard.

Initially, the Trial Court convicted the accused for attempting to smuggle silver out of India under the Import and Export (Control) Act, 1947, the Customs Act, 1962, and the Foreign Exchange Regulation Act, 1947. However, on appeal, the Additional Sessions Judge acquitted the accused persons. The Bombay High Court also dismissed the appeal against acquittal.

Subsequently, the case reached the Supreme Court, where the accused persons were held guilty of attempting to smuggle silver out of India. Justice Chinappa Reddy emphasized the elements of attempt, stating that it requires an intention to commit a specific act, the performance of an act towards the commission of the offence, and the proximity of this act to the intended result.

Justice Sarkaria, in his judgment, highlighted that the accused individuals had reached the sea-shore, started unloading the silver near a creek, and heard the sound of a mechanised sea-craft approaching. They had taken significant steps beyond mere preparation for the export of silver by sea. The only remaining action was to load the silver onto the sea-craft, which was prevented by the intervention of the customs officer.

Therefore, the Supreme Court held the accused guilty of attempted smuggling based on their actions, which were deemed substantial steps towards the completion of the offence. The circumstances, including the proximity to the sea-shore and the preparation for loading the silver onto the sea-craft, indicated a clear intention to smuggle the silver out of India.

Preparing false deed – In the case of Queen v. Ramasaran,¹⁷ A asked B to write a deed, leading B to believe that C would execute the document. A then sent D to purchase the stamp paper in the name of C. D, however, induced the stamp-vendor to write his name as C. Nonetheless, before any words were written on the document, D was arrested. As a result, the court held D not guilty since no part of the document had been written upon.

In contrast, in the case of R. v. Kalyan Singh,¹⁸ the circumstances were quite similar to those in the Ramasaran case. In this instance, the accused was found guilty because the deed-writer had commenced the writing of the deed.

This distinction is significant. In R. v. Kalyan Singh, the court considered the act of starting to write the deed as a substantial step towards the commission of the offence. Even though the deed was not completed, the initiation of the writing process was deemed sufficient for the offence to be considered
attempted.

Tampering labels – In Hope v. Brown,¹⁹ for selling the meat at the higher price, a butcher instructed his servants to replace the labels of the real price on the pieces of meat put in the refrigerator with the higher price labels. He had two sets of labels, one of real price and another of higher price. Since labels had not been replaced, he was held not guilty of an attempt to cheat.

Administering poison – In Surendra Nath Das v. Emperor,²⁰ the accused, Surendra Nath Das, mixed poison in a glass of water with the intention of giving it to another person, presumably with the intent to harm or kill. A third person witnessed the accused’s action of mixing the poison in the water. This third person, upon getting an opportunity, switched the glasses, thereby preventing the intended victim from consuming the poisoned water. Therefore, the accused was charged with attempting to commit murder under Section 307^20a of the Indian Penal Code, which deals with “attempt to murder.”

Rape – In Bhartu v. Emperor,²¹ the accused, Bhartu, attempted to commit rape on a girl by using forceful methods. He felled the girl to the ground and climbed over her. The accused then proceeded to put sand in her mouth and tried to engage in forcible intercourse with her. During this attempt, the girl resisted vigorously, screaming and crying for help. As a result of her resistance and cries for help, people nearby were alerted and came to the scene. Upon seeing the approaching people, the accused fled from the place, abandoning his attempt to rape the girl. Here, the girl’s resistance, screams, and cries for help demonstrate that the accused’s actions had progressed well beyond mere preparation and constituted a substantial step towards the commission of the offence, and the fact that the accused fled upon being interrupted by the girl’s resistance and the arrival of others further supports the conclusion that he had the intent to commit rape.

Attempt for doing an impossible act – Criminal attempts require both the intent to commit a crime and an act in furtherance of that intent. But what happens when the intended crime is, by its very nature, impossible? The law generally recognises a defence for attempts to commit factually impossible crimes.

Imagine someone trying to steal money from a bank vault they believe to be empty. Their actions, like breaking into the vault, might constitute an attempt if they genuinely thought there was money to steal. However, the impossibility of the act (the empty vault) becomes a defence. They cannot be punished for attempting an act that could never succeed.

Intention & Impossible Commission – This defence rests on the idea that true criminality requires a realistic chance of achieving the criminal goal. Someone attempting the impossible may still have bad intentions, but their actions pose less of a threat compared to someone attempting a feasible crime.

Thieves sometimes try to pickpocket people. But what if, without the thief knowing, the person has no wallet or other valuables? In this case, the law might say it’s a legal impossibility to steal because there’s nothing to take. On the other hand, if the thief tries to pickpocket someone with a fake wallet, the attempt might be considered legal because the thief doesn’t know it’s fake and believes they can steal something.

Legal Impossibility Doesn’t excuses Attempts – The law also doesn’t excuse attempts based on legal impossibility, situations where someone misinterprets the law. For instance, someone attempting to bribe an official for an action the official is legally prohibited from taking would still be guilty of attempted bribery despite the legal hurdle.

Absence of Subject – In R. v. Ring,²² three accused individuals were observed hurrying at a railway platform when a train was about to depart. However, they did not board the train. Upon the arrival of the next train, the accused individuals became very close to a woman. One of the accused put his hand into the woman’s pocket with the intent to steal. However, upon doing so, they discovered that there was nothing in the pocket to steal. Despite finding nothing in the pocket, the accused were charged with attempted theft.

However, in R. v. Collins,²³ the accused, Collins, attempted to steal from another person by putting his hand into the empty pocket of that person. However, the pocket was empty, and there was nothing to steal. The accused was charged with attempting to commit theft, but the court held him not guilty.

In R. v. McPherson²⁴, the accused, McPherson, broke into a building with the intent to steal goods from inside. However, upon breaking into the building, the accused discovered that there were no goods inside to steal. The accused was charged with attempted theft. The court held that since there were no goods inside the building to steal, the accused’s actions did not constitute an attempt to steal.

Accused mistaken as to Fact – In State v. Mitchall,²⁵ the accused fired a gun at a bed, believing that another person was lying in the bed at that time. However, unbeknownst to the accused, the person he believed to be in the bed was actually miles away at the time of the shooting. Despite the absence of the intended victim in the bed, the accused was charged with attempted murder. The fact that the accused fired a gun at the bed demonstrated a clear intent to kill. The action of firing the gun was considered a substantial step towards the commission of murder. The court held the accused guilty of attempted murder.

In Munah Bint Ali v. Public Prosecutor,²⁶ it was held that an individual can be held guilty of attempting to cause a miscarriage even if the woman is not actually pregnant. The offence is about the accused’s intent and actions taken towards that intent.

In R. v. Spicer,²⁷ it was asserted that if the act is such that it could not have caused a miscarriage, it might raise questions about the accused’s actual intent or ability to commit the offence. In some cases, the expert opinion regarding the likelihood of the act causing a miscarriage might be a factor considered by the court.

Receiving Property Believing it to be stolen – In Haughton v. Smith,²⁸ a lorry loaded with corned beef was stolen from a warehouse. The stolen lorry was intercepted by the police, and the contents were restored to lawful possession. A police officer was inside the lorry at the time of interception. Despite the interception and restoration of the stolen goods, the goods were eventually delivered to Smith, who believed them to be stolen. Smith was charged with handling stolen goods. The House of Lords held Smith not guilty of handling stolen goods because the goods, having been restored to lawful possession before reaching him, no longer possessed the characteristic of being “stolen” under Section 24(3) of the Theft Act, 1968.

The House of Lords ruled that once the stolen property has been restored to lawful possession or custody, it no longer possesses the characteristic of being “stolen” under the law. Therefore, even though Smith believed he was handling stolen goods, the goods had ceased to be stolen at the time he received them. The House of Lords emphasised that mens rea (guilty mind) alone is not sufficient to constitute a crime. There must also be an actus reus (guilty act), and in this case, the goods were not stolen at the time of Smith’s handling.

The Haughton v. Smith^28a case created a loophole in English law, allowing attempts at impossible crimes to go unpunished. The Criminal Attempts Act, 1981 closed this gap by making such attempts criminal offences. Section 1 of the Act is central to this change, which provides:

“(1)  If, with intent to commit an offence, a person does an act that is more than mere preparatory to the commission of the offence, he is guilty of attempting to commit the offence.

(2)  A person may be guilty of attempting to commit an offence even though the facts are such that the commission of the offence is impossible.

(3)  In case where: (a) apart from this sub-section, a person’s intention would not be regarded as having amounted to an intent to commit the offence, but (b) if the facts of the case had been as he believed them to be, his intention would be so regarded, then for the purpose of sub-section (1) above, he shall be regarded as having had an intent to commit the offence.”

Impossible Attempt and Indian Law – In present-day India, the legislation criminalizing the guilty act is the Bharatiya Nyaya Sanhita, 2023, successor of the Indian Penal Code, 1860. It does not specifically provide for criminalising any such attempt; however, in BNS, there are various sections that specifically provide for the punishment for the attempt of a specific offence. But for punishment of attempting any offence to which no specific provision is provided in the Sanhita, in such situations Section 62 came into play, which provides for the punishment for the attempt of any offence of which no specific provision is provided thereunder. Section 62 of the Sanhita provides for the punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment, which provides as follows:

“Whoever attempts to commit an offence punishable by this Sanhita 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 by this Sanhita for the punishment of such attempt, be punished with 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.”

In Asgar Ali v. Emperor,²⁹ the case involves allegations of an attempt to cause a miscarriage. The accused, a married man, developed a sexual relationship with a divorced lady. The accused promised to marry her and gave money to her father. The woman became pregnant, and she asked the accused to marry her. Instead of marrying her, the accused advised her to have a miscarriage. The accused provided the woman with a bottle containing powder and liquid, which he instructed her to take orally. The woman tested the powder and found it caused irritation, so she threw it away. The accused then tried to force the woman to consume the liquid by holding her chin and asking her to open her mouth. The woman shouted for help, and her father and a neighbour arrived. The accused fled the scene. Upon analysis, it was found that the powder and liquid did not contain any harmful substances. The accused was charged with attempting to cause a miscarriage. The court held the accused not guilty of attempting to cause a miscarriage. The court’s reasoning was that the accused’s actions could not be said to amount to a substantial step towards the commission of the offence. The means adopted by the accused were not considered sufficient to constitute a criminal attempt.

In Data Ram v. Emperor,³⁰ the accused and his brother were involved in a quarrel. The accused, in response to the quarrel, ran to his house and brought a sword. Before the accused could take any further action, others intervened and disarmed him. The accused was then arrested. The court held that the accused’s actions, which included fetching a sword, constituted only a stage of preparation and not a substantial step towards the commission of the offence.

5.2 Locus Poenitentiae Test

The criminal justice system grapples with the question of when preparatory actions morph into a punishable attempt. The Locus Poenitentiae test, a Latin term meaning “place of repentance,” offers a crucial perspective in distinguishing mere preparation from a criminal attempt.

At its core, Locus Poenitentiae recognises the inherent possibility of abandoning criminal intent. It acknowledges that individuals who embark on the path towards a crime might, for various reasons, choose to withdraw before its completion. The test posits that if a person has a genuine opportunity to desist from the criminal act on their own accord, their actions might be classified as mere preparation, not an attempt. This distinction is significant as punishment typically follows only attempts, not preparations.

1. Batuk Lal: Indian Penal Code, (3rd ed.) 2015, Central Law Agency, pp. 22.
2. Section 147 of the Bharatiya Nyaya Sanhita, 2023, “Wagering, or attempting to wage war, or abetting wagering of war, against Government of India”.
3. (1848) 2 Car & Kir 789, 175 ER 1063.
4. AIR 1984 SC 628.
5. AIR 1988 SC 1012.
6. AIR 1978 SC 437.
7. AIR 1954 SC 416.
8. AIR 1984 SC 628.
9. AIR 1988 SC 1012.
10. AIR 1978 SC 437 : (1980) 2 SCC 443.
11. AIR 1954 SC 416.
12. (1895) 1 F & F 511.
13. R v. Taylor, (1895) 1 F & F 511.
14. (1881) 7 Cal 35.
15. (1855) Dears 515.
16. 1980 Cr LJ 793 (SC).
17. (1872) 4 NWPHCR p. 46.
18. (1894) 16 All 409.
19. (1954) 1 All ER 330.
20. AIR 1933 Cal 833.
    20a. Now section 109 of the Bharatiya Nyaya Sanhita, 2023.
21. AIR 1933 Lah 1002.
22. (1802) 17 Cox CC 491.
23. (1864) 33 LJM C 177 (Cockburn, CJ).
24. (1857) Dears and B 197.
25. (1902) 170 MO 633.
26. (1958) 24 MLJ 159.
27. (1955) 59 Cr App. R 189.
28. (1971) 2 QB 315.
    28a. [1971] 2 QB 315.
29. ILR 1933 Cal 833.
30. 1882 PR 45.