Bharatiya Nyaya Sanhita (BNS) · General Principles of Criminal Liability
Preparation vs Attempt
Preparation vs Attempt in Criminal Law: Meaning, Distinction and Case Laws
A man buys a knife and drives to his victim's house. Is this attempt to murder, or mere preparation? A truck driver loads paddy and drives towards the state border in violation of an export ban. Is this attempt to smuggle, or mere preparation? A man submits a false application to a university. Is this attempt to cheat, or mere preparation? The line between preparation and attempt is one of the oldest and most difficult questions in criminal law. Preparation is not ordinarily punishable; attempt is. The distinction can mean the difference between acquittal and imprisonment. This module walks through the four stages of crime, the meaning of preparation and attempt, the four tests the courts apply, and the leading Indian and English cases.
1. The Four Stages of Crime
Intention
The first stage is the formation of the intention to commit a crime. A person conceives a plan in his mind. He decides to commit theft, murder, cheating, or another offence. At this stage, nothing has been done in the outside world. The intention exists only in the mind of the actor.
Preparation
The second stage is preparation. The actor arranges the means necessary for the commission of the offence. He buys the weapon, hires the accomplice, studies the target, prepares the poison, or takes similar steps to make the crime possible. Preparation involves external acts, but they are all directed at making the crime possible, not at executing it.
Attempt
The third stage is attempt. The actor moves beyond preparation and begins to execute the crime. He raises the knife, points the gun, offers the false document, administers the substance. His conduct is now directed at bringing about the offence, not merely at making it possible.
Commission
The fourth stage is commission. The crime is completed. The victim dies, the property is stolen, the fraud succeeds, the offence is done. At this stage, the substantive offence is made out.
Why the criminal law treats each stage differently
The four stages and their treatment
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2. Meaning of Preparation
Definition and scope
Preparation is the arrangement of the means necessary for the commission of an offence. It is the making of the crime possible, but not the doing of the crime itself. Buying a weapon, hiring an accomplice, reconnaissance of the target, and similar acts are all preparation. They express the actor's intention through external conduct, but they stop short of execution.
The general rule of non-punishability
The general rule of Indian criminal law is that preparation is not punishable. Section 62 BNS punishes attempts, not preparations. Where the actor is still at the preparation stage, no criminal liability attaches under the residual attempt provision. The rule reflects the principle that the criminal law punishes crimes, not the making possible of crimes.
Why preparation is not usually punished
- The room for repentance. The actor at preparation still has the freedom to withdraw. Punishing him would remove the incentive for withdrawal.
- Equivocality. Acts of preparation are often ambiguous. Buying a knife may be for cooking, self defence, or many other lawful purposes. Only when the actor moves into attempt does the criminal intention become unambiguous.
- Proof difficulty. Convicting a person for preparation would require proof of the intended offence, which is inherently speculative before the offence has been begun. The criminal law avoids this speculation by focusing on attempt.
- Overreach. Punishing preparation would criminalise a wide range of ordinary conduct that might in some cases have led to crime. The criminal law does not cast so wide a net.
3. Meaning of Attempt
Definition and scope
Attempt is a direct step towards the commission of an offence, done after preparation is complete, with the intention of committing the offence. It is the beginning of execution. The actor has moved beyond making the crime possible; he is now doing the crime.
The three-ingredient rule
The three ingredients of attempt
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All three must be established. Intention alone is not enough. An act alone is not enough (it may be innocent). And an act combined with intention is not enough if it is only preparation. The three together make attempt.
Attempt as a distinct offence
Attempt is a distinct offence in Indian criminal law. It is not a mere lesser included form of the completed offence. A person may be convicted of attempt even where the completed offence would never have followed (as in cases of impossibility). Section 62 BNS provides the residual punishment; specific sections (109, 110, etc.) provide the punishment for specific attempts.
4. The Fundamental Distinction
Preparation and attempt compared
Preparation | Attempt |
Arrangement of the means to commit the offence. | A direct step towards the commission of the offence, after preparation is complete. |
Making the crime possible. | Beginning the execution of the crime. |
The actor still has room to withdraw. | The actor has committed himself; withdrawal requires active reversal. |
Acts often equivocal, possibly innocent. | Acts unequivocally directed at the criminal object. |
Not ordinarily punishable. Section 62 BNS does not apply. | Punishable. Section 62 BNS (residual) or a specific attempt provision applies. |
Illustration: A buys a knife and drives to Z's neighbourhood, but has not yet approached Z. | Illustration: A enters Z's house with the knife drawn and confronts Z. |
The point of transition
The transition from preparation to attempt is not a bright line. It depends on the facts of each case. Courts apply various tests, discussed under head 5, to locate the transition. The single most important consideration is whether the actor has crossed the point of no return: has he committed himself to the criminal course, or does he still retain the freedom to withdraw.
5. The Four Tests
The proximity test (R v Eagleton)
📖 R. v. Eagleton, (1855) 6 Cox CC 559 The accused, a baker, was charged with attempting to obtain money from the parish by falsely representing that he had supplied bread to the poor. The English court held that an act constituting attempt must be immediately connected with the commission of the offence, not merely a step in the preparation. Rule (proximity test): the actor's conduct must be sufficiently close in time and space to the completed offence to be treated as attempt. |
The proximity test asks how close the actor's conduct is to the completed offence. The closer the conduct, the more likely it is attempt. Where the conduct is remote or preliminary, it is preparation. The test is objective: it looks at the physical closeness of the acts, not the actor's mental state.
The locus poenitentiae test (Malkiat Singh)
The classical Indian test. Discussed in a separate module in this series. In summary: the doctrine asks whether the actor still had room to withdraw at the moment in question. If he could have turned back without committing the offence, he was at preparation. If he had committed himself and could not withdraw without active reversal, he was at attempt. Malkiat Singh v. State of Punjab, AIR 1970 SC 713, is the classical application.
The equivocality test (res ipsa loquitur)
The equivocality test, drawn from Salmond and adopted in a number of common law cases, asks whether the actor's conduct, viewed in isolation, unambiguously points to the criminal object. Where the conduct could plausibly have an innocent explanation, it is preparation. Where the conduct can only be explained as directed at the crime, it is attempt. The test is sometimes called the res ipsa loquitur test: the thing speaks for itself.
Salmond on the equivocality test An act of attempt is one that speaks for itself as an act of the crime, an act which by its natural and probable consequences would tend to constitute the crime. |
The impossibility test
The impossibility test asks whether the offence attempted could have been completed. Where the completion was impossible (the pocket was empty, the poison was harmless, the victim was already dead), some jurisdictions have held that no attempt was made out. This is the doctrine of legal impossibility, illustrated by Asgarali Pradhania v. Emperor, AIR 1933 Cal 893. The modern position, in most jurisdictions including India, is more restrictive: impossibility is generally not a defence to attempt, provided the actor took steps with the intention of committing the offence.
6. When Preparation Itself is an Offence
Section 149 BNS: preparation to wage war
Section 149 BNS (formerly Section 122 IPC) punishes the collection of men, arms or ammunition, or otherwise preparing to wage war, with the intention of waging war against the Government of India. The punishment is life imprisonment or specified imprisonment. Preparation is punished here because waging war is one of the gravest offences and even preparation for it endangers the state.
Section 310(4) BNS: preparation to commit dacoity
Section 310(4) BNS (formerly Section 399 IPC) punishes preparation to commit dacoity. Making of preparations for the commission of dacoity is punishable with imprisonment up to ten years and fine. Preparation is punished here because dacoity is a collective and violent offence, and the criminal law intervenes early to prevent it.
Section 178 BNS: preparation to counterfeit coin
Section 181 BNS (formerly Sections 233, 234 and 489D IPC) punishes the making, buying, selling or being in possession of instruments for counterfeiting coin. This is preparation, criminalised because of the special danger to the currency and the economic order.
Rationale for these exceptions
Why some preparations are punished
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7. Judicial Elaboration
Malkiat Singh v. State of Punjab
📖 Malkiat Singh v. State of Punjab, AIR 1970 SC 713 Truck loaded with paddy in Punjab, in violation of an export ban. Truck intercepted still within Punjab. The Supreme Court held that the driver had not attempted to export the paddy. He could have turned back at any point up to the border. His conduct was preparation, not attempt. Rule: room to withdraw = preparation. |
Abhayanand Mishra v. State of Bihar
📖 Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698 The accused submitted a false application and forged certificate to Patna University. He was intercepted before the exam. The Supreme Court held that this was attempt to cheat, not mere preparation. Submission of the false document was a step towards the offence, going beyond preparation. Rule: submission of a false document to authorities is attempt, not preparation. |
State of Maharashtra v. Mohd. Yakub
📖 State of Maharashtra v. Mohd. Yakub, (1980) 3 SCC 57 Silver ingots loaded onto trucks, driven towards the sea for smuggling. Intercepted before reaching the sea. The Supreme Court held that this was attempt, not preparation. The loading and driving had committed the accused; withdrawal would have required active reversal. Rule: acts that commit the offender to the criminal enterprise cross into attempt. |
Om Prakash v. State of Punjab
📖 Om Prakash v. State of Punjab, AIR 1961 SC 1782 The accused systematically starved his wife over an extended period, intending to kill her. She managed to escape. The Supreme Court held that this was attempt to murder. The continuing conduct of starvation was execution, not preparation. Rule: continuing conduct with intention to kill is attempt. |
Koppula Venkat Rao v. State of Andhra Pradesh
📖 Koppula Venkat Rao v. State of Andhra Pradesh, (2004) 3 SCC 602 The Supreme Court considered attempt to commit rape. The Court applied the multi-test approach: proximity, equivocality and locus poenitentiae. The accused's conduct was found to be attempt, not preparation. Rule: modern statement of the multi-test approach. |
R. v. Eagleton and R. v. Robinson
📖 R. v. Robinson, [1915] 2 KB 342 The accused, a jeweller, claimed his shop had been robbed and made false statements to the police in support of an insurance claim. He was charged with attempt to obtain money by false pretences. The English Court of Appeal held that his conduct was too remote: he had not yet made a claim to the insurer. Preparation, not attempt. Rule: acts too remote from the completed offence are preparation, not attempt. |
8. Consolidated Landmark Judgments
- Malkiat Singh v. State of Punjab, AIR 1970 SC 713. Paddy in Punjab. Locus poenitentiae applied. Preparation.
- Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698. False application to university. Attempt.
- State of Maharashtra v. Mohd. Yakub, (1980) 3 SCC 57. Silver ingot smuggling. Multi-test approach. Attempt.
- Om Prakash v. State of Punjab, AIR 1961 SC 1782. Starvation of wife. Attempt to murder.
- Koppula Venkat Rao v. State of Andhra Pradesh, (2004) 3 SCC 602. Attempt to rape. Modern application.
- R. v. Eagleton, (1855) 6 Cox CC 559. Foundational English case. Proximity test.
- R. v. Robinson, [1915] 2 KB 342. Insurance fraud. Preparation, not attempt.
- Asgarali Pradhania v. Emperor, AIR 1933 Cal 893. Impossibility doctrine. Now largely eroded.
- Haughton v. Smith, [1975] AC 476. English case on impossibility.
- Sudhir Kumar Mukherjee v. State of West Bengal, AIR 1973 SC 2655. Attempt under special statutes.
- Aman Kumar v. State of Haryana, (2004) 4 SCC 379. Attempt to rape.
- Chotu Ram v. State of Haryana, (2004) 12 SCC 613. Attempt to murder.
Frequently Asked Questions
What is the difference between preparation and attempt?
Preparation is the arrangement of the means to commit an offence (buying a weapon, studying the target). Attempt is a direct step towards commission after preparation is complete (raising the knife, submitting the false document). Preparation is generally not punishable; attempt is. The line is often difficult to draw, and courts apply four tests: proximity, locus poenitentiae, equivocality, and impossibility.
Why is preparation generally not punished?
Four reasons: (i) the actor still has room to withdraw, and punishing preparation would remove the incentive; (ii) acts of preparation are often equivocal, possibly innocent; (iii) convicting for preparation would require speculation about the intended offence; and (iv) it would criminalise a wide range of ordinary conduct that might in some cases have led to crime.
What are the four tests for distinguishing preparation from attempt?
The proximity test (R v Eagleton, 1855): how close the conduct was to the completed offence. The locus poenitentiae test (Malkiat Singh, 1970): whether the actor still had room to withdraw. The equivocality test: whether the conduct unambiguously points to the criminal object. The impossibility test: whether the offence could have been completed. Indian courts apply a multi-test approach.
When is preparation itself punished under the BNS?
Preparation is punished only for a small class of grave offences. Section 149 BNS punishes preparation to wage war against India. Section 310(4) BNS punishes preparation to commit dacoity. Section 178 BNS punishes the possession of instruments for counterfeiting coin. In these cases, the gravity of the offence and the difficulty of prevention at the attempt stage justify criminalising preparation.
What is the locus poenitentiae test?
Locus poenitentiae, meaning the place of repentance, is the classical Indian test drawn from Malkiat Singh v State of Punjab, AIR 1970 SC 713. It asks whether the actor still had room to withdraw at the moment in question. If he could have turned back without committing the offence, he was at preparation. If he had committed himself and could no longer withdraw without active reversal, he was at attempt.
What is the leading Indian case on the preparation-attempt distinction?
Malkiat Singh v State of Punjab, AIR 1970 SC 713, is the classical Indian authority on the locus poenitentiae test. Abhayanand Mishra v State of Bihar, AIR 1961 SC 1698, is the classical Indian authority on the ingredients of attempt. State of Maharashtra v Mohd Yakub, (1980) 3 SCC 57, applies a multi-test approach and is often cited as the modern statement of the doctrine.
Related Topics on The Legal Bridge
For a fuller picture, read these companion notes on adjacent doctrines and provisions:
- Stages of Crime: intention, preparation, attempt and commission under the BNS.
- Attempt under Section 62 BNS: the residual statutory provision and its ingredients.
- Locus Poenitentiae Doctrine: the room-to-withdraw test in detail.
- Various Theories of Attempt: proximity, impossibility, object and on-the-job theories.
Quick Summary Preparation is arranging the means necessary to commit an offence; attempt is a direct step towards commission after preparation is complete. The classical Indian test (Malkiat Singh v State of Punjab, 1970) is locus poenitentiae: if the actor still had room to withdraw without committing the offence, he was at preparation; if he had committed himself, he was at attempt. Other tests include the proximity test (R v Eagleton, 1855), the equivocality test, and the impossibility test. Under the Bharatiya Nyaya Sanhita, 2023, preparation is punished only for a small number of grave offences (waging war, dacoity, counterfeiting). |