Abhayanand Mishra vs The State Of Bihar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 226 of 1959

Decision Date: 24 April, 1961

Coram: Raghubar Dayal

In this matter the Supreme Court considered the appeal of Abhayanand Mishra against a conviction under sections 420 and 511 of the Indian Penal Code. The case was decided on 24 April 1961 by a Bench consisting of Justice Raghubar Dayal, Justice Subbarao and Justice K. B. The appellant had applied to Patna University for permission to sit for the 1954 Master of Arts examination in English as a private candidate. In his application he represented that he possessed a Bachelor of Arts degree obtained in 1951 and that he was employed as a teacher in a school. Relying on these statements the University authorities granted him the required permission, accepted the prescribed fee, and, after receiving his photograph, dispatched a proper admission card to the headmaster of the school where he purportedly taught. Subsequently the University received information that prompted an inquiry, which disclosed that the appellant was neither a graduate nor a teacher and that he had previously been de‑barred from appearing in any University examination for a period because of involvement in corrupt practices during an examination. On the basis of these findings he was prosecuted and convicted for attempting to cheat the University by making false representations that induced the issuance of the admission card, a document which, had the deception not been uncovered, would ultimately have been delivered to him. The appellant argued that his conviction could not stand for two reasons: first, that the admission card possessed no monetary value and therefore did not constitute “property” within the meaning of section 415 of the Penal Code; and second, that his conduct amounted only to preparation for the offence of cheating and did not constitute an attempt to commit that offence.

The Court held that section 511 makes a person guilty of attempting a particular offence when he intends to commit that offence, has made preparations with that intent, and performs an act directed toward its commission. The act need not be the final or penultimate step; it must simply be an act undertaken during the course of executing the offence. Accordingly, it is not essential for the transaction to culminate in the completed crime if it is interrupted. The Court dismissed the view expressed in certain earlier decisions that an attempt requires the act to reach the stage of the offence itself. It also clarified that an admission card, although lacking a pecuniary value, carries significant importance for the candidate and therefore qualifies as “property” under section 415. Consequently, the preparation was deemed complete when the appellant drafted and dispatched his application to the University, and the moment of dispatch marked his entry into the realm of attempting to commit cheating. On that basis the Court affirmed the conviction.

The Court referred to several earlier decisions for guidance. It noted that the rulings in Ramsarun Chowbey (1872) 4 N. W. P. 46, in the matter of the Petition of Raisat Ali (1881) I.L.R. 7 Cal. 352 and In re Amrita Bazar Patrika Press Ltd. (1920) I.L.R. 47 Cal. 190 were not approved. By contrast, the decision in the matter of the Petition of R. MacCrea (1893) I.L.R. 15 All. 173 was approved, and the observations in In re T. Munirathnan Reddi, A.I.R. 1955 And. Prad. 118 were explained. The Court further held that an admission card issued by a university for appearing at its examination, although it carries no monetary value, possesses great significance for the candidate and therefore qualifies as property within the meaning of section 415 of the Indian Penal Code. In reaching this conclusion, the Court relied upon the precedents set in Queen Empress v. Appasami (1899) I.L.R. 12 Mad. 151 and Queen Empress v. Soski Bhusan (1893) I.L.R. 15 All. 210. Applying this principle to the case at hand, the Court observed that the appellant’s preparation was complete once he had drafted the application intended for submission to the university. The moment he dispatched that application, he entered the stage of attempting to commit the offence of cheating. Consequently, the Court found that the conviction of the appellant under section 420 read with section 511 of the Indian Penal Code was proper.

The appeal arose under criminal appellate jurisdiction as Criminal Appeal No. 226 of 1959, filed by special leave against the judgment and order dated 23 September 1958 of the Patna High Court in Criminal Appeal No. 87 of 1957. Counsel for the appellant were identified as the representatives for the appellant, while counsel for the respondent were the representatives for the State. The judgment was delivered on 24 April 1961 by Justice Raghu Bar Dayal. The appellant had sought permission from Patna University to sit for the 1954 M.A. examination in English as a private candidate, claiming to have obtained a B.A. degree in 1951 and to be employed as a school teacher. To support his request, he attached certificates purporting to be issued by the school headmaster and the inspector of schools. The university authorities accepted these representations, granted permission, and wrote to the appellant requesting remission of fees and two copies of his photograph. The appellant complied, and on 9 April 1954 a proper admission card was dispatched to the school headmaster. Subsequently, the university received information that the appellant was neither a graduate nor a teacher. Investigations revealed that the certificates submitted with the application were forged, that the appellant was not a graduate nor a teacher, and that he had previously been barred from taking any university examination for a specified period because of corrupt practices in a university examination. On this basis, the matter was reported to the police for further action.

After the University learned that the applicant was neither a graduate nor a teacher and that the certificates he had attached were forged, the matter was referred to the police. The police investigation led to the applicant’s prosecution. He was acquitted of the specific charge of forging the certificates, but the court convicted him of the offence of attempting to cheat because he had made false representations that deceived the University and caused it to issue an admission card. The admission card, if the fraud had not been discovered, would have been delivered to the applicant and would have allowed him to sit for the M.A. Examination. The applicant’s counsel presented two arguments. The first argument was that the facts established by the investigation showed only that the applicant had prepared to cheat the University, not that he had actually attempted to cheat it. The second argument was that even if the applicant had obtained the admission card and appeared for the examination, no offence under section 420 of the Indian Penal Code would have been committed because the University would not have suffered any damage to its reputation; the alleged harm to reputation was said to be too remote.

The court referred to the definition of cheating in section 415 of the Indian Penal Code, which states that a person who, by deception, fraudulently or dishonestly induces another to deliver any property, to retain any property, or to do or omit any act that the person would not have done or omitted if not 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. An explanation adds that dishonest concealment of facts counts as deception. Accordingly, the applicant would have committed cheating if he had (i) deceived the University, (ii) fraudulently or dishonestly induced the University to deliver any property to him, or (iii) intentionally induced the University to permit him to sit for the M.A. Examination, which the University would not have allowed had it not been deceived, and if that permission caused or was likely to cause damage or harm to the University’s reputation. The court found that the applicant’s false statements about being a graduate and a teacher undeniably deceived the University, and his purpose was to obtain the admission card that would enable him to sit for the examination. The admission card constitutes “property.” The court rejected the applicant’s contention that the card had no pecuniary value and therefore could not be property. Although the card itself does not have monetary value, it carries immense value for a candidate because, without it, the candidate cannot secure admission to the examination hall and consequently cannot appear for the examination.

In this case, the Court referred to earlier authorities to define the nature of the admission ticket. In the decision of Queen Empress v. Appasami, the Court had held that a ticket which allowed a person to enter the examination hall and to be examined for the Matriculation test of the University qualified as “property”. Similarly, in Queen Empress v. Soshi Bhushan, the Court interpreted the term “property” in section 463 of the Indian Penal Code to include a written certificate showing that the holder had attended a law lecture series for a specified period and had paid the requisite fees. Having established that the admission ticket and related certificates constitute property, the Court stated that there was no need to examine an alternative argument that the appellant might have committed cheating by inducing the University to grant him permission to sit for the examination. The University would not have granted such permission had it been aware of the true facts, and the appellant’s deception could have caused reputational damage to the University. Consequently, the Court also declined to consider the appellant’s submission that the University’s reputation was not directly linked to his conduct in obtaining the permission. The appellant further contended that the evidence proved only the stage of restitution for the offence of cheating and did not establish the offence of attempting to cheat. The Court observed that the line between preparation and attempt is narrow. It explained that a person first forms the intention to commit an offence, then makes preparations, and finally proceeds to attempt the offence. If the attempt succeeds, the offence is complete; if it fails for reasons beyond the person’s control, the conduct is still regarded as an attempt. Accordingly, an attempt to commit an offence begins when the preparatory steps are finished and the individual starts to act with the requisite intention, thereby taking a step toward the commission of the offence. The moment a person initiates an act with the necessary intention, the attempt is deemed to have commenced. The Court pointed out that this principle is reflected in the language “attempt to commit an offence” and is precisely what section 511 of the Indian Penal Code demands. The relevant portion of that section provides that anyone who attempts to commit an offence punishable by the Code, or who endeavours to cause such an offence to be committed, and in doing so performs any act towards the commission of the offence, shall be punished where no specific provision exists for the attempt. The provision requires two conditions: first, the person must attempt to commit the offence; second, in that attempt the person must perform an act that moves toward the commission of the offence. Only when both conditions are satisfied does the law impose punishment for the attempt. Therefore, the Court concluded that the act which would render the appellant’s conduct punishable as an attempt must be an act that, by itself or together with other acts, leads directly to the commission of the offence.

In order for an act to be punishable under the provision, it must be an act that, either by itself or when combined with other acts, leads toward the commission of the offence. Consequently, the initial act in the crime of cheating must be an act that creates the possibility of deceiving the person who is intended to be cheated. From the moment a person takes any step intended to deceive that victim, he has set in motion a course of conduct that amounts to an attempt to commit the offence, as envisioned by section 511 of the Indian Penal Code. The individual performs the act with the deliberate intention of committing the offence, and that act constitutes a step toward its execution. It must be remembered that determining whether a particular act constitutes an attempt to commit a specific offence is a factual inquiry that depends on the nature of the offence and the sequence of steps required to perpetrate it. No single exhaustive definition can capture all situations in which an act may be regarded as an attempt to commit an offence. The authorities cited illustrate this principle. For example, in the reported case of The Queen v. Ramsarun Chowbey, the judgment at page 47 observes: “To constitute then the offence of attempt under this section (s. 511), there 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 ingredient of the offence attempted.” The learned judge further explained at page 49: “I regard that term (attempt) as 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.” The present Court does not accept the view that the phrase ‘act towards the commission of such offence’ must be understood to require an act that leads immediately to the commission of the offence. The purpose of the illustrations is not to impose such a narrow construction, but rather to demonstrate that the accused has performed all acts necessary for the commission of the offence even though he may ultimately fail to achieve his objective. The learned judge himself emphasized this broader perspective.

In the judgment, the Court highlighted a passage on page 48 in which it was observed that the facts described in the illustrations to (1) (1872) 4 N.W.P. 46, section 51 1 of the Indian Penal Code would not have been treated as attempts under English law. The Court further expressed the view that those illustrations were introduced to demonstrate that the provisions of section 51 1 were intended to cover a considerably broader spectrum of situations than those that would be punishable as offences under English law.

The Court then referred to the decision in the matter of the petition of R. MacCrea (1). That decision held that determining whether a particular act or sequence of acts constitutes an attempt that the law will recognise, as opposed to merely preparation, is a factual inquiry to be resolved in each individual case. The Court noted that section 511 was not limited to the penultimate step before the completion of an offence, nor did it exclude earlier steps, provided those steps are undertaken in the course of attempting the offence, are performed with the intention to commit the offence, and are directed towards its commission.

Justice Knox, speaking on page 179, explained that many offences can be imagined in which, even after all necessary preparations have been made, a substantial period may still pass between the moment the attempt begins and the moment it is completed. He illustrated this with the offence of cheating and inducing delivery, noting that the interval between the preparation of the fraud and the moment the deceived person yields to the deception can be considerable, and may involve inquiries or other actions by the victim. Justice Knox observed that the acts by which the fraudster attempts to influence the victim’s mind may be numerous, and that the first act after the preparations are completed, if criminal in itself, is unquestionably an attempt just as much as any later act in the series. He further stated that once an attempt has commenced, a criminal act performed in pursuance of that attempt does not cease to be a criminal attempt merely because the offender repents before the attempt is fully realised.

Justice Blair, speaking on page 181, expressed the view that section 511 employs the term “attempt” in a very expansive sense. He indicated that the provision appears to allow an attempt to consist of a series of acts, and that any act performed towards the commission of the offence, and therefore conducive to its commission, is itself punishable as an attempt. He emphasized that the provision does not restrict punishment to only the final act immediately preceding the commission of the offence, but rather includes any act undertaken in the larger sense of an attempt.

Section 511 of the Indian Penal Code expressly provides that any person who, in the course of an attempt, performs any act toward the commission of an offence shall be punishable. The provision uses the expression “any act” in a broad sense, thereby excluding the narrower view that only the final act short of the actual commission of the offence is punishable. The Court affirmed the earlier decision and concurred with the reasoning that supported this interpretation. Counsel for the appellant cited several authorities in an effort to argue for a different construction of section 511. However, those authorities were not materially relevant and did not present a genuine alternative view on how the provision should be interpreted. The perceived divergence in opinion stemmed mainly from an oversight of the fact that section 511 departs from English law on the notion of “attempt to commit an offence.” For example, in Queen v. Paterson (1) I.L.R. 1 All. 316, the publication of marriage banns was held not to constitute an attempt to commit the offence of bigamy under section 494 of the Indian Penal Code. The judgment observed that, although publishing banns may be required where a special licence is not obtained, common sense prevents treating either the banns or the licence as part of the marriage ceremony itself. The Court further elucidated the distinction between preparation and attempt by quoting Mayne’s Commentaries, which defines preparation as devising or arranging means necessary for the offence, whereas an attempt is the direct movement toward commission after such preparations have been completed.

In Regina v. Padala Venkatasami (1) I.L.R. 3 Mad. 4, the preparation of a draft false document, the purchase of stamped paper intended for that document, and the gathering of factual information to be inserted were all held not to amount to an attempt to commit forgery. The reason given was that the accused, by those acts, had not yet proceeded to a step that moved him toward the actual commission of the forgery. Similarly, in the matter of the petition of Riasat Ali (2) I.L.R. 7 Cal. 352, the accused ordered the printing of one hundred receipt forms resembling those used by a company and corrected the proofs of those forms. The Court held that these actions did not constitute an attempt to commit forgery because, without the addition of a seal or signature falsely representing the company, the printed forms would not be false documents. The learned judge remarked that guilt for an attempt would arise only when the accused performed an act that moved toward making one of the forms a false document, such as being caught while writing the company’s name on the form. This reasoning reinforces the principle that mere preparation, absent a direct act toward the offence, does not satisfy the legal requirement of an attempt under section 511.

In this case, the Court observed that had the accused placed the company’s name on the printed form and completed merely a single letter of that name, he would have been guilty of the offence charged, because, as Lord Blackburn expressed, “the actual transaction would have commenced, which would have ended in the crime of forgery, if not interrupted.” The Court then quoted Lord Blackburn’s statement in Reg. v. Chessman (1881) I.L.R. 3 Mad. 4, noting his distinction between preparatory acts and an actual attempt, and emphasizing that when the transaction has begun and would have resulted in the crime if uninterrupted, an attempt is clearly established. Further, the Court cited Cockburn, C. J., in M’Pher son’s Case (1881) I.L.R. 7 Cal. 352, explaining that the term “attempt” implies that, had the attempt succeeded, the charged offence would have been committed, and that an attempt must consist of conduct that, if successful, would constitute the felony charged.

The Court clarified that Section 511 of the Indian Penal Code does not require the transaction to inevitably culminate in the crime if it were not interrupted. Citing Mukherjee, J., in In re: Amrita Bazar Patrika Press Ltd. (page 234), the Court reproduced Stephen’s definition from the Digest of Criminal Law, Art. 50, describing an attempt as an act performed with intent to commit a crime and forming part of a series of acts that would constitute its actual commission if not halted. The Court explained that an attempt is therefore an act partly executing a criminal design, exceeding mere preparation but falling short of full consummation, possessing all elements of the substantive offence except for its ultimate completion. The Court further referenced Stephen’s Digest, 9th Edition, defining an attempt as an act done with intent to commit a crime, forming part of a sequence that would amount to the crime if uninterrupted, and noting that the point where such a series begins varies with each case’s circumstances. Finally, the Court reiterated that an act performed with intent to commit a crime, even when the proposed manner of commission is impossible, still qualifies as an attempt to commit that crime.

In this judgment the Court observed that a person could be guilty of the offence of attempting to commit a crime even when the person voluntarily refrains from carrying out the crime. The Court cited the decision in In re: T. Munirathnam Reddi, page 122, which explained that the line between preparation and attempt is often very thin, although it is a real distinction. The citation explained that the decisive test is whether the last act, if carried out without interruption and with success, would amount to a crime. It further stated that if a person intended the natural result of his act to be death but was thwarted only by external circumstances, that person would be liable for an attempt to commit murder. The Court noted that the illustrations under section 511 clearly demonstrate this principle, describing two theft scenarios where the accused did everything possible but could not complete the theft because, in one case, the article had been removed from the jewel box and, in the other, the pocket was empty. The Court clarified that the remark about “the crucial test is whether the last act, if uninterrupted and successful, would constitute a crime” was made in the context of an attempted murder by shooting the victim, and that in that situation the offence required only a single act for its commission. The reference to A.I.R. 1955 And. Prad. 118 was also recorded.

From these authorities the Court summarised its interpretation of section 511 of the Indian Penal Code. It held that a person commits the offence of “attempt to commit a particular offence” when two conditions are satisfied: first, the person must intend to commit that particular offence; second, after making preparations and with that intention, the person must perform an act directed toward the commission of the offence. The Court emphasized that the act need not be the penultimate act before the offence is completed; it only needs to be an act undertaken during the course of trying to commit the offence. Applying this rule to the facts before it, the Court found that the appellant intended to deceive the University in order to obtain the required permission and the admission card. The appellant not only mailed an application seeking permission to sit for the University examination but, after receiving the permission, also paid the required fees and sent photographs as required. Upon receipt of these documents, the University issued the admission card. The Court concluded that there was little room to argue that the appellant’s conduct did not rise to the level of an attempt and that it remained merely preparatory. The preparation was considered complete once the appellant prepared the application for submission. The instant the appellant dispatched the application, he entered the stage of attempting to commit the offence of cheating. The Court noted that the appellant succeeded in deceiving the University and inducing it to issue the admission card, and that his failure to sit for the examination was due to circumstances beyond his control.

Because the university had been informed that the appellant was neither a graduate nor a teacher, the Court considered that the information supplied to the university clearly negated any claim of eligibility on his part. In view of this knowledge, the Court determined that the appellant’s conduct satisfied the elements of the offence defined in section 420 of the Indian Penal Code, read together with section 511 of the same Code. The Court therefore concluded that the conviction recorded against the appellant was proper and consistent with the statutory provisions. Consequently, the Court ordered that the appeal filed by the appellant be dismissed. The dismissal of the appeal affirmed the lower court’s judgment and affirmed the appellant’s conviction under the specified sections of the Indian Penal Code.