Abhayanand Mishra v State of Bihar 1961

हिंदी में पढ़ने के लिए यहां क्लिक करें

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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 Section 420, read with Secon 511 of the Indian Penal Code.

2. The appellant applied to the Patna University for permission to appear at the 1954 MA examinaon in English as a private candidate, represenng 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 applicaon, he aached certain cerficates purporng to be from the Headmaster of the School, and the Inspector of Schools. The university authories 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 dispatched to the Headmaster of the School.

3. Information reached the University about the appellant’s not being a graduate and not being a teacher. Inquiries were made and it was found that the cerficates aached to the applicaon 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 examinaon for a certain number of years on account of his having commied corrupt pracce at a university examinaon. In consequence, the maer was reported to the police which on invesgaon prosecuted the appellant.

4. The appellant was acquied of the charge of forging those cerficates, but was convicted of the offence of aempng to cheat inasmuch as he, by false representaons, deceived the University and induced the authories to issue the admission card, which, if the fraud had not been detected, would have been ulmately delivered to the appellant.

5. Learned counsel for the appellant raised two contenons. The first is that the facts found did not amount to the appellant’s committing an attempt to cheat the University but amounted just to his making preparaons to cheat the University. The second is that even if the appellant had obtained the admission card and appeared at the M.A. examinaon, no offence of cheang under Secon 420 IPC would have been commied as the University would not have suffered any harm to its reputaon. The idea of the University suffering in reputaon is too remote.

6. The offence of cheang is defined in Secon 415 IPC, 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 intenonally 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’.

Explanaon— A dishonest concealment of facts is a decepon within the meaning of this secon.
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 intenonally induced the University to permit him to sit at the MA examinaon 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 reputaon. There is no doubt that the appellant, by making false statements about his being a graduate and a teacher, in the applicaons he had submied to the University, did deceive the University and that his intenon was to make the University give him permission and deliver to him the admission card which would have enabled him to sit for the MA examinaon. This card is property. The appellant would therefore have commied the offence of cheang if the admission card had not been withdrawn due to certain informaon reaching the University.

7. We do not accept the contenon 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 examinaon. Without it he cannot secure admission to the examinaon hall and consequently cannot appear at the examinaon.

8. In Queen-Empress v. Appasami [(1889) ILR 12 Mad 151] it was held that the cket entling the accused to enter the examinaon room and be there examined for the Matriculation test of the University was ‘property’.

9. In Queen-Empress v. Soshi Bhushan [(1893) ILR 15 All 210] it was held that the term property in Secon 463 IPC included the wrien cerficate to the effect that the accused had aended, during a certain period, a course of law lectures and had paid up his fees.

10. We need not therefore consider the alternave case regarding the possible commission of the offence of cheang by the appellant, by his inducing the University to permit him to sit for the examinaon, which it would not have done if it had known the true facts and the appellant causing damage to its reputaon due to its perming him to sit for the examinaon. We need not also therefore consider the further queson urged for the appellant that the queson of the University suffering in its reputaon is not immediately connected with the accused’s conduct in obtaining the necessary permission.

11. Another contenon for the appellant is that the facts proved do not go beyond the stage of preparaon for the commission of the offence of cheang, and do not make out the offence of aempng to cheat. There is a thin line between the preparaon for and an aempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparaon for comming it and thereaer aempts to commit the offence. If the aempt succeeds, he has commied the offence; if it fails due to reasons beyond his control, he is said to have aempted to commit the offence. Aempt to commit an offence, therefore, can be said to begin when the preparaons are complete and the culprit commences to do something with the intenon of comming the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intenon, he commences his aempt to commit the offence. This is clear from the general expression aempt to commit an offence and is exactly what the provisions of Secon 511 IPC, require. The relevant poron of Secon 511 IPC is:
Whoever aempts to commit an offence punishable by this Code … or to cause such a offence to be commied and in such aempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such aempt, be punished….

These provisions require that it is only when one, firstly, aempts to commit an offence and, secondly, in such aempt, does any act towards the commission of the offence, that he is punishable for that aempt 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 combinaon with other acts, leads to the commission of the offence. The first step in the commission of the offence of cheang, therefore, must be an act which would lead to the decepon 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 aempt to commit the offence, as contemplated by Second 511. He does the act with the intenon to commit the offence and the act is a step towards the commission of the offence.

12. It is to be borne in mind that the queson whether a certain act amounts to an aempt to commit a parcular offence is a queson of fact dependent on the nature of the offence and the steps necessary to take in order to commit it. No exhausve precise definion of what would amount to an aempt to commit an offence is possible. The cases referred to make this clear.

13. We may refer to some decided cases on the construcon of Secon 511 IPC In Queen v. Ramsarun Chowbey [(1872) 4 NWP 46]. It was said at p. 47:
To constute then the offence of aempt under this Secon (Secon 511), there must be an act done with the intenon of comming an offence, and for the purpose of comming that offence, and it must be done in aempng the commission of the offence.

Two illustraons of the offence of aempt as defined in this Secon are given in the Code; both are illustraons of cases in which the offence has been commied. In each we find an act done with the intent of comming an offence and immediately enabling the commission of the offence, although it was not an act which constuted a part of the offence, and in each we find the intenon of the person making the aempt was frustrated by circumstances independent of his own volion.
From the illustraons 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 aempted…. The learned Judge said, further at p. 49:
I regard that term (aempt) as here employed as indicang the actual taking of those steps which lead immediately to the commission of the offence, although nothing be done, or omied, which of itself is a necessary constuent of the offence aempted.

14. 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 illustraon is not to indicate such a construcon of the secon, but to point out that the culprit has done all that is 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 illustraons to Secon 511 of the Indian Penal Code, would not have constuted aempts under the English law, and I cannot but think that they were introduced in order to show that the provisions of Secon 511 of the 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.

15. In the maer of the peon of R. MacCrea [ILR 15 All 173] it was held that whether any given act or series of acts amounted to an aempt which the law would take noce of or merely to preparaon, was a queson of fact in each case and that Secon 511 was not meant to cover only the penulmate act towards the compleon of an offence and not acts precedent, if those acts are done in the course of the aempt 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 preparaons made, a long interval will sll elapse between the hour when the aempt to commit the offence commences and the hour when it is completed. The offence of cheang and inducing delivery is an offence in point. The me that may elapse between the moment when the preparaons made for comming the fraud are brought to bear upon the mind of the person to be deceived and the moment when he yields to the decepon pracsed upon him may be a very considerable interval of me. There may be the interposion of inquiries and other acts upon his part. The acts whereby those preparaons may be brought to bear upon her mind may be several in point of number, and yet the first act aer preparaons completed will, if criminal in itself be beyond all doubt, equally an aempt with the ninety and ninth act in the series. Again, the aempt once begun and a criminal act done in pursuance of it towards the commission of the act aempted, does not cease to be a criminal aempt, in my opinion, because the person comming the offence does or may repent before the aempt is completed. Blair, J., said at p. 181:
It seems to me that that section (Section 511) uses the word ‘attempt’ in a very large sense; it seems to imply that such an aempt 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 aempt. It does not say that the last act which would form the final part of an aempt in the larger sense is the only act punishable under the secon. It says expressly that whosoever in such aempt, obviously using the word in the larger sense, does any act, 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 therefor.

16. Learned counsel for the appellant relied on certain cases in support of his contenon. They are not much to the point and do not in fact express any different opinion about the construcon to be placed on the provisions of Secon 511 IPC. Any different view expressed has been due to an omission to noce the fact that the provisions of Secon 511 IPC, differ from the English law with respect to “attempt to commit an offence”.

17. In Queen v. Paterson [ILR 1 All 316] the publicaon of banns of marriage was not held to amount to an aempt to commit the offence of bigamy under Secon 494 of the IPC. It was observed at p. 317:
The publicaon of banns may, or may not be, in cases in which a special license is not obtained, a condion essenal to the validity of a marriage, but common sense forbids us to regard either the publicaon of the banns or the procuring of the license as a part of the marriage ceremony.

The disncon between preparaon to commit a crime and an aempt to commit it was indicated by quong from Mayne’s Commentaries on the Indian Penal Code to the effect:
Preparaon consists in devising or arranging the means or measures necessary for the commission of the offence; the aempt is the direct movement towards the commission, aer the preparaons have been made.

18. In Regina v. Padala Venkatasami [(1881) ILR 3 Mad. 4] the preparaon of a copy of an intended false document, together with the purchase of stamped paper for the purpose of wring that false document and the securing of informaon about the facts to be inserted in the document, were held not to amount to an aempt 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.

19. In In the maer of the peon of Riasat Ali [(1881) ILR 7 Cal 352] the accused’s ordering the prinng of one hundred receipt forms similar to those used by a company and his correcng proofs of those forms were not held to amount to his aempng to commit forgery as the printed form would not be a false document without the addion of a seal or signature purporng 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 aempt to commit forgery unl 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 wring the name of the Company upon the printed form and had only completed a single leer 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 transacon 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 Lee & Cave’s Rep 145 :
There is no doubt a difference between the preparaon antecedent to an offence and the actual aempt; but if the actual transacon has commenced, which would have ended in the crime if not interrupted, there is clearly an aempt to commit the crime.

He also quoted what Cockburn, C.J., said in Mc’Pherson case Dears & B, 202:
The word ‘attempt’ clearly conveys with it the idea, that if the attempt had succeeded, the offence charged would have been commied. An aempt must be to do that which, if successful, would amount to the felony charged.

20. It is not necessary for the offence under Secon 511 IPC that the transacon commenced must end in the crime or offence, if not interrupted.

21. In re: Amrita Bazar Patrika Press Ltd. [(1920) ILR 47 Cal 190] Mukherjee, J., said at p. 234:
In the language of Stephen (Digest of Criminal Law, Arcle 50), an aempt to commit a crime is an act done with an intent to commit that crime and forming part of a series of act which would constute its actual commission if it were not interrupted. To put the maer differently, aempt is an act done in part execuon of a criminal design, amounng to more than mere preparaon, but falling short of actual consummaon, and, possessing, except for failure to consummate, all the elements of the substanve crime; in other words, an aempt 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 denned as that which if not prevented would have resulted in the full consummaon of the act aempted: Reg. v. Collins (1864) 9 Cox 497.

22. This again is not consistent with what is laid down in Secon 511 and not also with what the law in England is.

23. In Stephen’s Digest of Criminal Law, 9th Edn. “attempt” is defined thus: An aempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts, which would constute 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 parcular case. An act done with intent to commit a crime, the commission of which in the manner proposed was, in fact, impossible, is an aempt to commit that crime. The offence of aempng to commit a crime may be commied in cases in which the offender voluntarily desists from the actual commission of the crime itself. In In re: T. Munirathnam Reddi (AIR 1955 A.P. 118) it was said at p. 122:
The disncon between preparaon and aempt may be clear in some cases, but, in most of the cases, the dividing line is very thin. Nonetheless, it is a real disncon. The crucial test is whether the last act, if uninterrupted and successful, would constute 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 aempt to commit the offence of murder. The illustraons in the secon (Secon 511) bring out such an idea clearly. In both the illustraons, the accused did all he could do but was frustrated from comming the offence of the because the arcle 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 shoong at the vicm 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.

24. We may summarise our views about the construcon of Secon 511 IPC, thus: A person commits the offence of “attempt to commit a particular offence when (i) he intends to commit that parcular offence; and (ii) he, having made preparaons and with the intenon to commit the offence, does an act towards its commission; such an act need not be the penulmate act towards the commission of that offence but must be an act during the course of comming that offence.

25. 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 applicaon for permission to sit at the university examinaon, but also followed it up, on geng the necessary permission, by reming 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 aempng to commit the offence and had not gone beyond the stage of preparaon. The preparaon was complete when he had prepared the applicaon for the purpose of submission to the University. The moment he despatched 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 examinaon because something beyond his control took place inasmuch as the University was informed about his being neither a graduate nor a teacher.

26. We therefore hold that the appellant has been rightly convicted of the offence under Secon 420, read with Secon 511 IPC, and accordingly dismiss the appeal.