Abhayanand Mishra Vs. The State of
Bihar [1961] INSC 181 (24 April 1961)
DAYAL, RAGHUBAR SUBBARAO, K.
CITATION: 1961 AIR 1698 1962 SCR (2) 241
CITATOR INFO :
R 1961 SC1782 (9) R 1973 SC2655 (4) F 1977
SC1174 (5,7) E 1980 SC1111 (13,29)
ACT:
Criminal Law-Attempt to cheat-Getting
admission card from University on false representation-Preparation to commit
offence and attempt to commit offence, differences-Admission card, if
Property-Indian Penal Code (Act 45 of 1860), ss. 420, 511.
HEADNOTE:
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 31 242 have been ultimately delivered to him.
The appellant contended that on the facts found the conviction was
unsustainable on the grounds (1) that the admission card had no pecuniary value
and was therefore not property under S.
415, and (2) that, 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, (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, not approved.
In the matter of the Petition of R. MacCrea,
(1893) I.L.R. 15 All. 173, approved.
In re T. Munirathnan Reddi, A.I.R. 1955 And. Prad.
118, explained.
Held, further that an admission card issued
by the University 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 Penal Code.
Queen Empress v. Appasami, (1899) I.L.R. 12
Mad. 151 and Queen Empress v. Soski Bhusan, (1893) I.L.R. 15 All. 210, relied
On.
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 1959.
Appeal by special leave from the judgment and
order dated September 23, 1958, of the Patna High Court in Criminal Appeal No.
87 of 1957.
H. J. Umrigar, P. Rana and M. K. Ramamurai,
for the appellant.
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 244 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 omission 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 had (i) deceived the University;
(ii) fraudulently or dishonestly induced the University to deliver any property
to him; or (iii) 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 University.
245 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
Examination.
In Queen Empress v. Appasami (1) it was held
that the ticket entitling the accused to enter the examination room and be
there examined for the Matriculation test of the University was 'property'.
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. 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 accuser’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) (1889) I.L.R. 12 Mad. 151.
(2) (1893) I.L.R. 15 All. 210, 246 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
punishable 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 offence.
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 Chowbey (1) it was
said at p. 47:
"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
(so to say) of the offence attempted............
The learned Judge said, further, at p. 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".
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 (1) (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.
MacCrea (1) it 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 (1)
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 section (s. 511)
uses 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 therefore.
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 (1) 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." (1) I.L.R. 1 All. 316.
32 250 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 Venkatasami (1) the
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 (2) 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 (to use the words of Lord Blackburn)
'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 (3):
(1) (1881) I.L.R. 3 Mad. 4.
(2) (1881) I.L.R. 7 Cal. 352.
(3) Lee & Cave's Rep. 145.
251 "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 Case (1):
"The word 'attempt' clearly conveys with
it the idea, that if the attempt had succeeded, the offence charged would have
been committed.
An attempt must be to do that which, if
successful, would amount to the felony charged." It is not necessary for
the offence under s. 511, Indian Penal Code, that the transaction commenced
must end in the crime or offence, if not interrupted.
In In re: Amrita Bazar Patrika Press Ltd.
Mukherjee, J., said at p. 234:
"In the language of Stephen (Digest of
Criminal Law, Art. 50), an 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. (2) (1920) I.L.R. 47
Cal. 100.
(3) (1864) 9 Cox. 497.
252 "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 particular
case.
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 re: T. Munirathnam Reddi (1) it
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 section (s. 511)
bring 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 offence.
(1) A.I.R. 1955 And. Prad. 118.
253 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' 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.
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.
Appeal dismissed.
Back
