Attempt to Commit Offences: Preparation Versus Attempt

In Indian criminal law, preparing to commit an offence is generally not punishable, but attempting it is. The general rule on attempt is now Section 62 of the Bharatiya Nyaya Sanhita, 2023 (BNS), which replaced Section 511 of the IPC from 1 July 2024. The Supreme Court's test is simple to state: attempt begins where preparation ends, that is, when the accused, with intent, does an act towards committing the offence that goes beyond arranging the means.

This explainer is for B.A. LL.B. and LL.B. students preparing for criminal law papers, and for any reader who wants to know why a person caught "planning" something is treated differently from one caught in the act. Get the stage wrong and the accused either walks free or goes to prison, which is why the line has reached the Supreme Court again and again.

What are the four stages of a crime?

Teachers usually explain any offence in four stages. Keep this list in your head for every answer on this topic.

1. Intention: the mental decision to commit the offence. Thought alone is not punished.
2. Preparation: arranging the means, such as buying a tool or finding out where the victim lives.
3. Attempt: a direct act towards committing the offence, done after preparation, which falls short of completion.
4. Commission: the offence is complete.

The law normally steps in at stage three. In State of Maharashtra v. Mohd. Yakub (1980), Justice Sarkaria described the third stage as the point where the culprit "takes deliberate overt steps to commit the offence".

What does Section 62 BNS say?

Section 62 BNS is headed "Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment". It is the same heading that Section 511 IPC carried. In plain terms:

• It applies where a person attempts an offence punishable under the Sanhita with imprisonment for life or imprisonment, or causes such an offence to be attempted, and does an act towards its commission.
• It applies only where the Sanhita does not separately provide for punishing that attempt.
• The punishment can extend to one-half of the imprisonment for life, or one-half of the longest term provided for the offence, or fine as provided for the offence, or both.

The two illustrations are worth learning. In the first, A breaks open a box to steal jewels and finds it empty. In the second, A puts a hand into Z's pocket, which has nothing in it. Both are guilty of attempt. The offence was impossible on the facts, yet the act towards it was done.

Some attempts have their own sections, so Section 62 does not apply to them. The best known is attempt to murder, now Section 109 BNS (old Section 307 IPC). Section 226 BNS deals with attempt to commit suicide to compel or restrain the exercise of lawful power. Its old pointer is Section 309 IPC, but the BNS provision is narrower, so read the current text before you write about it.

When is preparation itself an offence?

A few offences are so dangerous that the law punishes preparation directly. The official comparison table of BNS and IPC sections lists, among others:

• Section 310(4) BNS: making preparation to commit dacoity (old Section 399 IPC).
• Section 310(5) BNS: assembling for the purpose of committing dacoity (old Section 402 IPC).
• Section 149 BNS: collecting arms with the intention of waging war against the Government of India (old Section 122 IPC).
• Section 181 BNS: making or possessing instruments or materials for forging or counterfeiting coin, stamps or currency.

In an exam, mention these as exceptions to the general rule. Check the exact wording in the bare Act before quoting it.

How has the Supreme Court drawn the line?

Abhayanand Mishra v. State of Bihar (1961)

The accused applied to Patna University to sit the M.A. English examination as a private candidate, using false claims that he was a graduate and a teacher. The University issued an admission card before discovering the truth. The Supreme Court upheld his conviction for attempt to cheat (Section 420 read with Section 511 IPC). It held that the act towards the offence "need not be the penultimate act" but must be one done "during the course of committing such offence". This rejects the narrow "last act" view.

Malkiat Singh v. State of Punjab (1968)

A truck carrying paddy, booked for Delhi, was stopped at Samalkha barrier, still inside Punjab. The charge was attempting to export paddy against a control order. The Court held this was only preparation: the driver could still have changed his mind before the boundary, and the acts done so far would then have been harmless. Remember this as the "locus poenitentiae" or room for repentance idea.

State of Maharashtra v. Mohd. Yakub (1980)

On the night of 14 September 1968, officers followed a jeep and a truck to Kaman creek and recovered 43 silver ingots, some already unloaded near a footpath to the creek. The spot was close to the sea, and the sound of a sea-craft engine was heard. The Supreme Court held this was an attempt to smuggle, not mere preparation. Justice Sarkaria said "attempt begins where preparation ends" and that the act must be "reasonably proximate" to completion. Justice Chinnappa Reddy added that proximity is measured by intention, not by time or distance.

State of Madhya Pradesh v. Mahendra alias Golu (decided 25 October 2021)

The High Court had treated the accused's acts against two minor girls as preparation and reduced the conviction. The Supreme Court (Justices Surya Kant and Hima Kohli) restored the conviction for attempt to rape. Luring the girls and closing the doors was the end of preparation. What followed was an attempt. The Court called the question a mixed question of law and fact.

In Re: Order dated 17.03.2025 of the Allahabad High Court (2026 INSC 165)

On 10 February 2026, a three-judge bench led by Chief Justice Surya Kant set aside an Allahabad High Court order that had called certain acts against a minor only "preparation". Relying on Mahendra alias Golu, the Court said "attempt" is "the execution of mens rea after preparation" and that the High Court had applied settled principles in a "patently erroneous" way. This is the most recent statement of the law and worth citing in 2026 answers.

What are the tests courts use?

• Proximity test: is the act reasonably close to completing the offence? (Mohd. Yakub)
• Locus poenitentiae test: could the accused still have turned back, leaving the acts harmless? (Malkiat Singh)
• Act in the course of commission: the act need not be the last one, only one done while committing the offence. (Abhayanand Mishra)
• Impossibility does not excuse: the empty box and empty pocket illustrations to Section 62 BNS.

No single test settles every case. Courts read the facts as a whole.

How should you write this in an exam?

1. Open with the four stages and say the law usually punishes from attempt onwards.
2. State Section 62 BNS, with Section 511 IPC as the old pointer, and the one-half punishment rule.
3. Give both illustrations to show impossible attempts.
4. Explain the tests with one case each, with correct names and years.
5. Mention exceptions where preparation is punishable, such as Section 310(4) BNS.
6. Apply to the problem. Example: a student in Nagercoil buys a duplicate key to a classmate's locker (preparation). If he is caught turning that key in the lock, it is an attempt to commit theft.

Criminal law is taught in the first years of both our programmes, and this topic comes up in internal tests and university papers alike.

Sources

• India Code: The Bharatiya Nyaya Sanhita, 2023: official record of Act 45 of 2023, in force from 1 July 2024.
• Tripura Police: BNS and IPC comparison table: section-by-section mapping of BNS to IPC.
• Supreme Court: State of Maharashtra v. Mohd. Yakub (1980): full judgment on proximity and the stages of a crime.
• Supreme Court: Malkiat Singh v. State of Punjab (1968): full judgment holding the paddy truck case to be preparation.
• Supreme Court: State of M.P. v. Mahendra alias Golu (2021): judgment restoring the conviction for attempt.
• Supreme Court: In Re Order dated 17.03.2025 (2026 INSC 165): the February 2026 judgment on preparation and attempt.