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1158

STATE OF MAHARASHTRA

v.

MOHD. Y AKUB S/0 ABDUL HAMID & ORS.

March 4, 1980

[R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.J

Penal' Code--Atte1npt to con1mit an offence-What constitutes-"I'repara­

tion" and "attenipt" distinction.

The respondents were charged

with th'e offence of attempting to smuggle out

cf India 43

silver ingots in violation of the Foreign Exchange Regulation Act,

1947, Imports and Exports (Control) Act, 1947 and the Customs Act, l 962.

The prosecution alleged that on the night of the occurrence the res.pondents

carried in a truck and a jeep silver ingots some of which were concealed in a

shawl, and some others hidden in saw-dust bags from Bombay to a lon-ely creek

nearby and that when the ingots were unloaded n'ear the creek the sound of the

engine

of a mechanised

s·ea-craft from the side of the creek was heard by the

Customs officials and that therefore they were guilty of attempting to ~muggle

silver out of India.

The respondents pleaded that they

w'ere not aware of the presence

of silver

ingots

in the vehicles, that they were only employed for driving the jeep and the

truck to another destination and that

the police stopped them en route and had

driven them

to the creek.

E The Trial Court convicted and sent.enced them to vaI_:ious terms of imprio;on-

ment and fine.

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On appeal, the Sessions Judge acquitted all the respondents taking the view

that the facts proved showed

no more than that the accused had only

marle _/

"preparations" for bringing the silver to the creek and "had not con1mittcd any -...___ ~

act amounting to a direct mov'ement towards the commission of the offence" and

F that until the silver was put in the boat with intent to export, it would merely

be

in the

stage of preparation 'falling short of an "attempt" to export in contra­

vention

of the law.

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The High Court dismissed the State's appeal. Allowing the appeal to this

Court,

HELD :

Per Sarkaria, J. : (Chtnnappa Reddy, J. concurring)

1. The High Court was in error in holding that the circumstances established

by the prosecution

fell short of constituting the offence of an

"attempt" to export

unlawfully silver out of Jndia. [1165F]

2. The expression "attempt" within the .meaning of the penal provision" is

wide enough to take in its fold any one or series of acts committed beyond the

stage of preparation in moving-contraband goods deliberately to the place of

embarkation, such act or acts 1'eing reasonably proximate to the completior. of

the unlawful export. [ll65E].

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MAHARASHTRA V. MOHD. YAKUB 1159

3. The definition of 'proved' contained in section 3 of the Evidence Act does

not draw any distinction between cir.::umstantial 2.n<l other evidence. If the

·circumslances establish such a high degree of probability that a prudent n1~1n

ought to act on the supposition that the accused was attempting to export silver

from Jndia in contravention of the law, that woukl be ~ufficicnt proof rJf tbc.t

fact in issue. [1164A·B]

4(a.) What constitutes an "attempt" is a mixed question of law and fact,

depending largely

on the circumstances of the particular case.

"Attempt" defie~

a precise and exr.::t definition. Bro•adly speaking, all crimes which cons1"-t of

the commission of affirmative acts are preceded by some covert or ov~rt conduct

which may be divided into three stages : the first stage exists when the c;.ilplit

first entertains the idea or intention to commit an offen•;;;e; in the s'econd stage he

makes preparations to commit it; and the third stage

is reac_hed when the culprit

takes.

delib'~rate overt steps to commit the offence. Such overt act 01 step, in

order to

be criminal, need not be the penultimate act towards the

commission

of the offence. It is sufficient if such act or acts were deliberately done and

manifest a clear intention to commit the offence aimed, being reasonably proxi~

ma(e to the consu1nmation of lhe offence. [1164C-E]

Abhayanand Mishra v. State of Bihar, [1962] 2 S.C.R. 241, followed.

(b) There is a distinC:tion between "preparation" and "attempt". Attempt

begins where preparation ends. In sum, a p'erson commits the offence of 'at·

-tempt to commit a particular offence' when (i) he intends to commit that part?·

cul.ar offence c.nd (ii) he, having made preparations and ·with the int'euti,)n to

commit the offence, does an act towards its commission; such an ac.t need not

be the penultimate act towards the commission of that offence but must be an

act during the course of co1nmiting that offence. [1164E-F]

In the instant case the respondents carried silver ingots in the two vchicle3

to the sea-shore and started unloading them near a creek from which the sound

of the engin'e of a sea-craft was heard. In short they did all that was necc<;sary

to expert the silver ingots by sea and the only step that remain1::d was to l•J1d

then1 on the soo-craift for moving out of the territorial waters of the counlry.

But for the intervention

of the Customs officials, the unlawful export would have

been consummated. The disappearance of the sea-craft reinforces the inference

that the accused had

delib'i!rately attempted to export silver by sea in con:ruven~

tion of law. [1164G-H]

Chinnappa Reddy, J (concurring),

Jn order

to constitute

rut ".attempt" first there must be an intention tv com­

mit a particular offence, second, some act must have been done which wcu!d

n'ecessarily have to

be done towards the commission of the offence and third suih act must be 'proximate' to the intended result. The measure of prciximity

is not in relation to time and action but in relation to intention. In other

words, the act must reveal with reasonGble c'erta.inty, in conjunction ~with other

facts and circumstances and not necessarily in isolation, an intention as d;stin­

guished from a mere· desire or object to commit the particular offence, though

the act by itself may be merely suggestive or indicative of such intention.

[1170E-F]

Jn the instant case had the truck been stopped and searched at the very

commencement

of the journey "or even on the way much before its destination

the discovery of silver ingots in the truck might at the worst Jead

to the inference

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1160 SUPREME COURT REPORTS (1980] 2 S.C.R.

tbat the accus'ed had prepare.J or were preparing for the commission of the

offence. It could be said that the accused were transporting or attempting to

tninsport the silver somewhere but it would not necessarily suggest or inJicate

that the inrention was to export silver. The fact that the truck was dri\'.en up

tu a lonely creek from where the silver rould be transferred into a sea-faring

vessel was suggestive or indicative, though not conclusive, that the

accus'ed

want~

ed to export the silver. It might have been open to the accused to plead thr.t

the silver was not to be exported but only to be transported in the course of

inter-coastal trade. But the circumstMlce that all this was done in a clandtstine

fashion, at dead of night revealed, with reasonable certainty,_ th'e intention of

the accused that the silver was to be exported. [ll 70G·H]

Reg v. Eagleton [1854] Dears C.C. 515; Gardner v. Akerayd [1953[ 2 All ER

306; Davey v. Lee [!968] 1 Q.B. 366; Haughten v. SmiJh [1975] A.C. 476, 492;

Director of Puhlic Prosecutions v. Stonehouse [1977] 2 All E.R. 909, referred to.

A.bhavanand Mishra v. The State of Bihar [19621 2 SCR 241 @ 253, applied.

Malkiat Singh & Anr. v. State of Punjab [1969] 2 SCR 663 @ 667, distin·

guished. ~

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 335

D of 1974.

E

Appeal by special leave from the Judgment and Order dated

1-11-1973

of the Bombay High Court in Criminal Appeal No. 113

of 1972.

0. P. Rana and M. N. Shroff for the Appellant.

V. N. Ganpule and V. B. Joshi for the Respondents.

The following Judgments

were delivered :

'

SARKARIA, J.--This appeal by special leave preferred by the State ~'

of Maharashtra, is directed against a judgment <4_ted November 1,

F 1973, of the Bombay High Court.

Mohd. Yakub respondent

1, Shaikh Jamadar Mithnbhai respon­

dent 2, and Issak Hasanali Shaikh respondent

3, were tried in the

court

of the Jndicial Magistrate

First Class, Bassein, 13-0mbay, in

respect

of three sets of offences punishable under section 135 read

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· with section 135 (2) of the Customs Act, 1962. The first charge was

the violation of sections 12(1), 23(1) and 23 (d) of the Foreign

Exchange Regulation Act, 1947, the second was violation of Exports

(Contrcl) Order

No. 1 of 1968 E.T.C. dated March 8,

1.968: rnd

the third was the contravention of the provisions of Sections 7, 8, 33

and 34 of the Customs Act, 1962. They were also charged for

H violation of the Exports (Control) Order No. 1/68 E.T.C. dated

March

8, 1968 issued under sections 3 and 4 of the Imports and

Exports (Control) Act, 1947 punishable under section 5

of the said

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MAHARASHTRA v. MOHD. YAKUB (Sarkaria, !.) I J 61

Act. The gist of the charges was that the respondents attempted to A

smuggle out of India 43 silver ingots", weighing 1312.410 kgs., worth

about Rs. 8 lakhs, in violation of the Foreign Exchange Regulation

Act, the Imports

& Exports (Control) Act, 1947, and the Customs

Act.

The facts of the case were

as follows :

On receiving some secret information that silver would be

trans­

ported in Jeep No. MRC-9930 and Truck No. BMS-796 from Bom­

bay to a coastal place near Bassein, Shri Wagh, Superintendent of

Central Excise along with Inspector Dharap and the staff proceeded

in two vehicles to keep a watch on the night of September 14, 1968

at Shirsat Naka on the National Highway No. 8, Bombay City. At about

mid-night, the aforesaid jeep

was seen coming from Bombay followed

by a truck. These two vehicles

were proceeding towards Bassein. The

officers followed the truck and the jeep which, after travelling some

distance from Shirsat Naka, came to a fork in the road and thereafter,

insteac of taking the road leading to Bassein, proceeded on the new

National Highway leading to Kaman village and Ghodbunder Creek.

Ultimately, the jeep and truck halted near a bridge at Kaman creek

whereafter the ~CCJ!Sed removed some small and heavy bundles from

the truck and placed them aside on the ground. The Customs

Officers rushed to the spot and accosted the persons present there.

At the same time, the sound of the engine of a mechanised sea-craft

. from the side

of the creek

was heard by the officers. The officers

surrounded the vehicles and found four silver ingots near the foot­

path leading to the creek. Respondent 1 was the driver and the

sole occupant of the jeep, while the other two respondents were the

driver and cleaner

of the truck. The officers sent for Kana and

Sathe, both residents of Bassein. In their presence, respondent 1

was questioned about his identity. He falsely gave his name and

address

as Mohamad Yusuf s/o Say.yad Ibrahim residing at

Kamathi­

pura. From the personal search of respondent 1, a pistol, knife and

currency notes of Rs. 2,133/-were found. Fifteen silver ingots

concealed

in a shawl were found in the rear side of the jeep and

twenty-four silver ingots were found lying under saw-dust bags

in the

truck. The truck and the jeep together with the accused-respondents

and the silver ingots were taken to

Shirsat Naka where a detailed

panchanama was drawn up. Respondent 1 had no licence for keep­

ing a pistol. Consequently the matter was reported to Police Station

Bassein, for prosecuting the respondent under the Arms Act.

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1162

SUPREM!l° COURT REPORTS [1980] 2 S.C.R.

The respondents and the vehicles and the silver ingots were taken

to Bombay on September 15, 1-968. The statements of Um respon­

dents under section 108 of the Customs Act were recorded by Shri

Wagh, Superintendent of Central Excise. The Collector, Central

Excise, by

his order elated May 28, !969, confiscated the silver

ingots. After obtaining the requisite sanction,

"the Assistant Collec­

tor, Central Excise made a complaint against all the three accused

in the court

of the Judicial Magistrate, Basscin for trial in respect of

the aforesaid

offences.

The plea of the accused was of plain denial of the prosecution

case. They stated that they were not aware of the alleged silver and·

that they had just been employed for carrying the jeep and the truck

to another destination. They alleged that they were driven to the

creek by the police.

The trial Magistrate convicted the accused

of the aforesaid offen­

ces and sentenced accused I to two years' rigorous imprisonment

ai1d

a fine of Rs. 2,000 and, in default, to suffer further six months'

rigorous imprisonment. Accused 2 and 3 were to suffer six

montl1s'

rigorous imprisonment and to pay a fine of Rs.

500 and, in default,

to suffer two months' rigorous imprisonment.

The accused preferred three appeals

in the court of the

Additiom1l

Sessions Judge, Thana, who, ]Jy his common judgment dated Septem­

ber

30, 1973, allowed the appeals and acquitted them on the ground

that the facts proved by the prosecution fell short of establishing that

the accused had 'attempted' to export silver

in contravention of the

law, because

the facts proved showed no more than that the accused

had only made 'preparations' for bringing this silver to the creek and

"had not yet committed any act amounting to a direct movement

towards the commission of the offence". Jn his view, until silver

was pnt in the boat for the purpose of taking out of the country with

intent

to export it, the matter would be merely in the s.tage of 'pre­

paration' falling short of an 'attempt' to export it.

Since 'prepara­

tion' to commit the offence of exporting silver was not punishable

under the Customs Act,

he acquitted the accused.

Against this

acquitt:il, the State of Maharashtra carried an app<:al

H to the High Court, wh:ch, by its judgment dated November I, 1973,

dismissed the appeal and upheld the acquittal of the accused-respon­

dents. Hence, this appeal.

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MAHARASHTRA v. MOHD. YAKUB (Sarkaria, J.) 116 J

In the instant case, the trial court and' the Sessions Judge con-A

cmrently held that the following circumstances had been established

by the prosecution:

(a) The

officers

(Shri Wagh and party) had received definite

information that silver would be carried

in a truck and a

jeep from Bombay to Bassein

for exporting from the

country and

for this purpose they kept a watch at

Shirsat

Naka and then followed the jeep an_d the truck at some

distance.

(b) Accused 1

was driv:ng the jeep, while accused 2 was

driving the truck and accused 3 was cleaner on it.

( c) Fifteen silver ingots were found concealed in the jeep

and 24 silver ingots

were found hidden in the truck.

( d) The jeep and the truck were parked near the Kaman

creek from where they could

be easily loaded in some

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sea craft. D

(e) Four silver ingots from the vehicle had been actually

unloaded and

were found lying by the side of the road

near the foot-path leading to the

sea.

(f)

On being questioned accused 1 gave his false name and

address. E

(g) The accused were not dealers in silver.

The trial Magistrate further held that just when the

officers

surrounded these vehicles and caught the accused, the sound of the

engine of a mechanised vessel was heard from the creek. The first

appellate court did not

d!scount this fact, but held that this circum-F

stance did not have any probative value.

The question, therefore,

is whether from the facts and

circum­

stances, enumerated above, it could be inferred beyond reasonable

doubt that the respondents had attempted to export the silver in con-

travention of

law from India ?

G.

At the outset, it may be noted that the Evidence Act does not

insist on absolute proof

for the simple reason that perfect proof in

this imperfect world is seldom to be found. That is why under Sec-

tion 3 of the Evidence Act, a fact is said to be 'proved' when, after

considering the matters before it, the Court either believes

it to exist,

or considers its existence so probable that a prudent man ought, under

the circumstances

of the particular case, to act upon the supposition

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1164

SUPREME COURT REPORTS [1980] 2 S.C.R.

A that it exists. This definition of 'proved' does no~ draw any distinc­

tion between circumstantial and other evidence. Thus, if the cir­

cumstances listed above establish such a high decree <if probability

that a prudent man ought to act on the supposition that the appellant

was att~mpting. to exp2rt silver from India in contravention of the

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law, that will be sufficient proof of that fact in issue.

Well then, what

is an

"attempt" ? Kenny in his 'Outlines of

Criminal Law' defined "attempt" to commit a crime as the "last

proximate act which a person does towards the commission of an

offence, the consummation of the offence being hindered by circum-

stances beyond his control." This definition is too narrow. What

constitutes an "attempt" is a mixed question of law and fact, depend­

ing largely on the circumstances of the particular case. "Attempt"

defies a precise and exact definition. Broadly speaking, all crimes

which consist of the commission of affirmative acts are preceded by

some covert or overt conduct which may be divided into three stages.

D

The first stage exists when the culprit first entertains the idea or

intention to commit an offence. In the second stage, he makes pre­

parations to commit it. The third stage

is reached when the culprit

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"

takes deliberate overt steps to commit the offence. Such overt act

or step

in order to be 'criminal' need not be the pennltimate act to­

wards the commission of the offence. It is sufficient if such act or

acts were

deliberately done, and manifest a clear intention to commit

the offence aimed, being reasonably proximate to the consummation

of the offence. As pointed out

in Abhayanand Mishra v.

State of

Bihar(') there is a distinction between 'preparation' and 'attempt'.

Attempt begins where preparation ends.

In sum, a person 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; snch 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.

Now, let us apply the above principles to the facts of the case in

hand. The intention of the accused to export the silver from India

by sea

was clear from the circnmstances enumerated above. They

were taking the silver ingots concealed in the two vehicles under

cover of darkness. They had reached close to the sea-shore and had

started unloading the silver there near a creek from which the sound

of the engine of a sea-craft

was also heard. Beyond the stage of

preparation, most of the steps necessary in the course of export by

(I) [1962) 2 S.C.R. 241.

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MAHARASHTRA v. MOHD. YAKUB (Sarkaria, !.) 1165

sea, had been taken. The only s!ep that remained to be taken to­

wards the export of the silver was to load it on a sea-craft for moving

out of the territorial waters of India. But for the intervention of the

officers of law, the unlawful export of silver would haVle been con­

summated. The calendestine disappearance of the sea-craft

when

the officers intercepted and rounded up the vehicles and the accused

at the creek, reinforces the inference that the accused had deliberately

attempted to export

silver by sea in contravention of law.

It is important to bear in mind that the penal provisions with

which we are concerned have been enacted to suppress the evil

of smuggling precious metal out of India. Smuggling is an

anti­

social activity which advers~ly affects the public revenues, the earn'

ing of foreign exchange, the financial stability and the economy of

the country. A narrow interpretation of the word "attempt" there­

fore, in these penal provisions which will impair their efficacy as

instruments for combating this baneful activity has to be eschewed.

These provisions should be construed in a mann~r which wonld

suppress the mischief, promote their object, prevent their subtle

evasion and

foil their artful circumvention. Thus, construed, the ex­

pression

"attempt" within the meaning of these penal provisions is

wide enough to take in its fold any one or series of acts committed,

beyond the stage of preparation in moving the contr1,1band goods deli­

berately

to the place of embarkation, such act or acts being reason­

ably proximate

to the completion of the unlawful export. The infer­

ence arising out

of the facts and

circumstances established by the

prosecution, unerringly pointed to the conclusion, that the accused

had committed the

offence of attempting to export silver out of India

by

sea, in contravention of law.

For reasons aforesaid, we are of opinion that the High Court was

in error in holding that the circumstances established by the prosecu­

tion

fell short of constituting the offence of an 'attempt' to export un­

lawfully, silver out of India. We, therefore, allow this appeal, set

aside the acquittal of the accused-respondents and convict them under

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Section 135(a) of the Costoms Act, 1962 read with Section 5 of the G

Imports and Exports Control Act, 1947 and the Order issued there­

under, and sentence them

as under :

Accused-respondent 1, Mohd. Yakub

is sentenced to suffer one

year's rigorous imprisonment with a fine of Rs.

2,000 and, in default,

to

suffer six months' further rigorous imprisonment. Accused respon-H

dents 2 and

3, namely,

Sheikh Jamadar Mithubhai and Issak Hasan-

ali Shaikh are each sentenced to six months' rigorous imprisonment

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1166 SUPREME COURT REPORTS [1980] 2 S.C.R.

A with a fine of Rs. 500 and, in default to suffer two months' further

rigorous imprisonment.

CHINNAPPA REDDY, J. I concur in the conclusion of my brother

Sarkaria, J. in whose Judgment the relevant facts have been set

out with clarity and particularity. I

wish to add a few paragraphs on

8

the nature

of the actus reus to be proved on a charge of an attempt

to commit an

offence.

The question is what is the difference between preparation

&nd

perpetration?

An attempt to define 'attempt' has to be a frustrating exercise.

C Nonetheless a search

to discover the characteristics of an attempt, if

not an apt definition of attempt, has to be made.

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In England

Parke B described the characteristics of an 'attempt'

in Reg. v. Eagleton,(') as follows :-

"the mere intention to commit a misdemeanour is not

criminal. Some act is required, and we do not think that all

acts towards committing a misdemeanour indictable. Acts

remotely leading towards the commission

of the offence are

not

to be considered as attempts to commit but acts imme­

diately

conuected with it arc .... "

The dictum of Parke B is considered as the locus classicus on the

subject and

the test of 'proximity' suggested by it has been accepted

and applied by English Courts, though with occasional bnt audible

murmur

ab,out the difficulty in determining whether an act is imme­

diate or remote. Vide Lord Goddard C.J.

in Gardner v. Akeroyed.(')

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" .... it is sometimes difficult to determine whether an act is "

immediately or remotely connected with the crime of which it is alleged -,,

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to be an attempt". Parke B. himself appeared to have thought that the

last possible act before the achievement

of the end constituted the

attempt. This

was indicated by him in the very case of Reg. v.

Eagleton (supra) where he further observed :

". . . . . . . . . . . . and if, in this case . . . . . . . . any fur­

ther step

on the part of the defendent had been necessary to

obtain payment .............. we should have thought that

the obtaining credit

................ would not have been

sufficiently proximate

to the obtaining the

money, But, on

the statement in this case, no other act on the part of the

(1) [18541 Dears C. C. 515.

(2) [1952] 2 All E. R. 306.

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MAHARASHTRA v. MOHD. YAKUB (Chinnappa Reddy,!.) 1167

defendant would have been required. It was the last act,

depending on himself towards the payment of the money,

and therefore it ought to be considered as an attempt".

As a general principle th!'; test of 'the last possible act before the

achievement

of the end' would be entirely unacceptable. If that

princi­

ple be correct, a person who has cocked his gun at another and is

about to pull the trigger but is prevented from doing so by the inter­

vention of someone or something cannot be convicted of attempt to

murder.

Another popular formulation of what constitutes 'attempt'

is that

of

Stephen in his Digest of the Criminal Law where he said :

"An attempt to commit a crime is an ac~ 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".

While the first sentence is an attempt at defiuing 'attempt', the second

sentence

is a confession of inability to define. The attempt at definition

fails precisely

at the point where it shonld be helpful.

See the obser­

vations of Parker C.J. in Davey v. Lee(') and of Prof. Glanville

Williams in his essay on 'Police Control of intending criminals' in 1955

Criminal

Lmv Review.

Another attempt at definition was made by PtQfessor Turner in

[1934]

5 Cambridge Law Journal'

230, and this was substnntially repro­

duced in 'Archbald's Crimlnal Pleading, Evidence and Practice (36th

&Jn.). Archbald's reproduction was quoted with approval in Davey

v. Lee(") and was as follows :

, ' .......... '. . the actus reus necessary to constitute

an attempt is complete if the prisoner does an act which is

a step towards the commission of a specific crime, which is

immediately and not merely remotely connected with the

commission of it, and the doing of which cannot reasonably

be regarded as having any other

purpose• than the commis­

sion of the specific crime".

We must at once say that it was not noticed in Archbald's (36th

Edn.) nor was it brought to the notice of the DivisiQrla] Court which

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· decided Davey v. Lee (supra) that Prof. Turner was himself not satis-H

fied with the definition propounded

by him and felt c;o'mpelled to

(l) [1968]! Q. B. 366. 2&--138 SCl/80

1168 SUPREME COURT REPORTS [1980] 2 s.c.R.

A modify it, as he thought that to require that the act could not reasonably

be regarded as having any other purpose then the commission of the

specific crime went too far and it sho~ld be sufficient "to show prima

facie' the offender's intention to commit the crime which he is charged

with attempting".

B Editing 12th edition of Russell on Crime and 18th edition of

Kenny's Outlines of Criminal Law, Professor Turner explained his

modified definition as follows:

"It is therefore suggested that a practical test for the

actus reus in attempt is that the prosecution must prove that

c the steps taken by the accused must have reached the point

when they themselves clearly indicate that was the end

towards which they were directed.

In other words the steps

taken must themselves

be sufficient to show, prima facie, the

offender's intention

t,o commit the crime which he is charged

with attempting. That there may

be abundant other evidence

D to establish his mens rea (such as a confession) is irrelevant

to the question of whether

he had done enough to constitute

the

actus

reus".(I)

We must say here that we are unable to see any justification for e!!:clu­

ding evidence aliunde on the question of mens rea in considering what

E constitutes the

actus reus. That would be placing the actus reus in

too narrow a pigeon-hole.

In Haughten v. Smith,(') Hai/sham L.

C. quoted Parke B from

the

Eagleton case (supra) and Lord Parker, C.J. from Davey v.

Lee (supra) and proceeded to mention three propositions as

emerg­

F ing from the two definitions :

G

H

"(1) There is a distinction between the intention to

commit a crime and an attempt to commit it.

.......... .

(2) In addition to the intention, or mens rea, there must be

an overt act of such a kind

tha~ it is intended, to form and

does form part of a series of acts which would constitute

the actual commission of the offence if it were not inter­

rupted. . . . . . . . . . ( 3) The act relied on as constituting the

attempt must not be

an act merely preparatory to commit

the completed offence,

but must bear a relationship to the

completion of the offence referred to in

Reg. v. Eagleton,

as being 'proximate'

tci the completion of the offence in

(l) Russell on Crimes (12th Elin.) edited by Prof. Tarner, P. 184.

(2) [1975] A. C. 476 at 492.

x

•

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MAHARASHTRA v. MOHD. YAKUB (Chinnappa Reddy, !.) 1169

Davey v. Lee [1968) 1 Q.B. 366, 370, as being 'imme- A

diately and not merely remotely connected' with the com-

pleted offence

...........

"

I

In Director of Public Prosecutions v. Stonehouse, (

1

)

Lord Dip-

lock

a'nd Viscount Dilhome, appeared to accept the 'proximity' test of

Parke B, while Lord Edmund-Davies accepted the statement of Lord

Hailsham as to what were the true ingredients of a criminal attempt.

Whatever test

was applied, it was held that the facts clearly

dis-·

closed an attempt in that case.

Ill India, while attempts to commit certain specified offences have

themselves been made specific olfonces (e.g. 307, 308 Indian Penal

Code etc.), an attempt to commit an offence punishable under the

Penal Code; generally, is dealt with under section 511 Indian Penal

Code. But the expression 'attempt' has not bee'n defined anywhere.

In Abhayanand Mishra v. The State of Bihar,(') Raghubar Dayal

and Subba Rao, JJ., disapproved of the test of 'last act which if un­

interrupted and successful would constitute a criminal offence' and

summarised their views as follows :

"A person commits the offence of 'attempt to commit a

particular offence' when (i) he intends to commit that parti­

cular offence; and

(ii) he, having made preparations and

with the intention to commit the offence, does an

act to­

wards its commission; such an act need not be the penulti­

mate act towards the commission of that offence but must

be

an act during the course of committing that offence".

In Malkiat Singh & Anr v. State of Punjab,(

3

) a truck which

was carrying paddy, was stopped at Samalkha 32 miles from Delhi and

about 15 miles from the Delhi-Punjab boundary. The question was

whether the accused were attemJ?ting to export paddy from Punjab

to Delhi. It was held that on the facts of the case, the offence of

attempt had not been committed. Ramaswamy. J., observed :

"The test for determining whether the act of the appel­

lants constituted an attempt or preparation is whether the

overt acts already done are such that if the offender changes

his mind and does not proceed further in its progress, the

acts already done would be completely harmless.

In the

present case it is

quit~ possible that the appellants may have

(1) (1977] 2 All E. R. 909.

(2) (1962] 2 S.C.R. 241at253,

(3)

(1969] 2 S.C.R. 663 at 667.

B

c

D

E

F

G

H

1170 SUPREME COURT REPORTS [1980] 2 S.C.R.

Ii been warned that they had no licence to carry the paddy

and they may have changed their mind at any place bet­

\'leen Samalkha barrier and the Delhi-Punjab boundary and

not have proceeded further in their journey".

B

c

D

E

F

G

·e

We think that the test propounded by the first, sentence should be

understood with reference to the facts of the case. The offence

alleged to be coutemplated was so far removed from completion in

that case that the offender had yet ample time and opportunity to

change

his mind and proceed no further, his earlier acts being

com·

pletely harmless. That was what the Court meant, and the reference

to 'the appellants' in the sentence where the test

is propounded makes

it clear that the test

is propounded with reference to the

partieular

facts of the case and not a~ a general rule. Otherwise, in every case

where an accused is interrupted at the last minute from completing

the

offence, he may always say that when he was interrupted he

was·

about to change his mind.

Let

me now state the result of the search and research : In

order to constitute 'an attempt', first, there must be an intention to

commit a particular

offence, second, some act must have been done

which would necessarily have

to be

done towards the commission of

the offence, and, third, such act must be 'proximate' to the intended

result. The measure

of proximity is

nOt in relation to time and·

action but in relation to intention. In other words, the act must

reveal, with reasonable certainty, in conjunction with other !acts and·

circumsta'nces and not necessarily in isolation, an intention, as distin­

guished from a mere desire or object, to commit the particular

off­

ence, th9ugh the act by itself may be merely suggestive or indicative

of such intention; but, that it must be, that is, it must

be indicative.

or suggestive of the intention. For instance, in the instant case, had

the truck been stopped

and searched at the very commencement of

the journey or even at

Shirsad Naka, the discovery of silver ingots m

the truck might at the worst lead

to the

inference that the accused·

had prepared or were preparing for the commission of the offence. It

could be said that the accused were transporting or attempting to

transport the silver somewhere hut it would not necessarily suggest

or indicate that the intention

was to export silver. The fact that the

truck

was driven upto a lonely creek from where the silver could be

transferred into a sea-faring

vessel was suggestive

or indicative

though not conclusive, that the accused wanted

to export the silver.

It might have been open to the accused to plead that

the silver was

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MAHARASHTRA v. MOHD. YAKUB (Chinnappa Reddy, J.) 1171

not to be exported but only !o be transported in the. course of inter-A

coastal

trade. But, the circumstance that all this was done in a clandestine fashiob, at dead of night, revealed, with reasonable cer­

tainty, the intention of the accused that the silver was to be exported.

In the result I agree with the order proposed by Sarkaria, J .

B

P.B.R.' Appeal allowed.