Preparation and Attempt in Criminal Law

Preparation consists of arranging the means or measures necessary to commit an offence. An attempt begins when, with the required criminal intention, a person performs an act directed towards committing the offence after the preparatory stage has ended. The offence need not be completed for attempt liability to arise.

From intention to attempt

Criminal conduct generally progresses through intention, preparation, attempt and completion. The dividing line depends on whether the accused has merely equipped or positioned himself, or has begun executing the criminal design.

• Buying poison may be preparation; administering it to the intended victim is an overt act amounting to attempt, even if the victim survives.
• An attempt requires both the necessary guilty intention and an act sufficiently connected with the intended offence.
• The act need not be the final or penultimate act, but it must go beyond mere preparation.

Tests applied by courts

Courts determine the boundary from the facts of each case rather than from a universal formula.

• Under the proximity test, the act must be reasonably close to the completed offence in purpose and operation, not merely close in time.
• The unequivocality approach asks whether the conduct clearly manifests the criminal design rather than remaining consistent with innocent preparation.
• In Abhayanand Mishra v. State of Bihar, the Supreme Court explained that attempt begins after preparations are complete and an act towards commission is done.
• In State of Maharashtra v. Mohd. Yakub, the Court held that an attempt need not reach the penultimate act if the acts are sufficiently proximate to the intended offence.

Legal consequences

Preparation is generally not punishable because the criminal design may still be abandoned and preparatory conduct can be ambiguous. Attempt is punishable because the accused has crossed into execution and created a direct danger to the protected interest.

• Section 62 of the Bharatiya Nyaya Sanhita, 2023 provides general punishment for attempts to commit imprisonable offences where the Sanhita contains no specific attempt provision.
• Legislatures may separately punish especially dangerous preparatory conduct, such as collecting arms to wage war or making preparation to commit dacoity.

How UPSC asks this