http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

PETITIONER: ABHAYANAND MISHRA

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT: 24/04/1961

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR SUBBARAO, K.

CITATION:  1961 AIR 1698            1962 SCR  (2) 241  CITATOR INFO :  R          1961 SC1782  (9)  R          1973 SC2655  (4)  F          1977 SC1174  (5,7)  E          1980 SC1111  (13,29)

ACT: Criminal  Law-Attempt to cheat-Getting admission  card  from University  on  false representation-Preparation  to  commit offence   and  attempt  to  commit  offence,   differences-- Admission  card,  if Property-Indian Penal Code (Act  45  of 1860), ss. 420, 511.

HEADNOTE: The appellant applied to the Patna University for permission to  appear  at the 1954 M. A. Examination in  English  as  a private candidate representing that he was a graduate having obtained  his  B.  A. Degree in 1951 and that  he  had  been teaching in a certain school.  Believing his statements  the University  authorities gave him the  necessary  permission, and  on his remitting the requisite fees and sending  copies of his photograph, as required, a proper admission card  for him  was dispatched to the Headmaster of the School.   As  a result of certain information received by the University, an investigation  was made and it was found that the  appellant was  neither a graduate nor a teacher as represented by  him and  that  in  fact he had been de-barred  from  taking  any University  examination  for a certain number  of  years  on account  of  his  having committed  corrupt  practice  at  a University  examination.   He was prosecuted  and  convicted under  s. 420 read with s. 511 of the Indian Penal Code,  of the  offence of attempting to cheat the University by  false representations by inducing it to issue the admission  card, which if the fraud had not been detected would 31 242 have  been  ultimately  delivered  to  him.   The  appellant contended  that  on  the  facts  found  the  conviction  was unsustainable on the grounds (1) that the admission card had no  pecuniary value and was therefore not property under  S. 415,  and (2) that, in any case, the steps taken by him  did not go beyond the stage of preparation for the commission of the  offence of cheating and did not therefore make out  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

offence of attempting to cheat. Held,  that under s. 511 of the Indian Penal Code  a  person commits  the  offence of attempting to commit  a  particular offence,  when he intends to commit that particular  offence and,  having  made preparations and with  the  intention  to commit  that  offence, does an act towards  its  commission; such  an  act need not be the penultimate  act  towards  the commission  of  that offence but must be an act  during  the course of committing such offence.  It is not necessary  for the offence under s. 511 that the transaction commenced must end in the crime or offence, if not interrupted. The  observations to the contrary in The Queen  v.  Ramsarun Chowbey, (1872) 4 N. W. P. 46, In the matter of the Petition of  Raisat  Ali, (1881) I.L.R. 7 Cal. 352 and In  re  Amrita Bazar  Patrika  Press Ltd., (1920) I.L.R. 47 Cal.  190,  not approved. In  the matter of the Petition of R. MacCrea, (1893)  I.L.R. 15 All. 173, approved. In  re  T. Munirathnan Reddi, A.I.R. 1955 And.   Prad.  118, explained. Held,  further that an admission card issued by the  Univer- sity for appearing at the Examination held by it, though  it has  no pecuniary value, has immense value to the  candidate and  is property within the meaning Of S. 415 Of the  Indian Penal Code. Queen  Empress  v. Appasami, (1899) I.L.R. 12 Mad.  151  and Queen  Empress v. Soski Bhusan, (1893) I.L.R. 15  All.  210, relied On. In  the present case, the preparation was complete when  the appellant  had prepared the application for the  purpose  of submission  to the University, and the moment he  despatched it, he entered the realm of attempting to commit the offence of   cheating.   Accordingly,  the  appellant  was   rightly convicted  of the offence under s. 420 read with S.  511  of the Indian Penal Code.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 226  of 1959. Appeal  by special leave from the judgment and  order  dated September  23,  1958, of the Patna High  Court  in  Criminal Appeal No. 87 of 1957. H.   J.  Umrigar,  P.  Rana and M.  K.  Ramamurai,  for  the appellant.                             243 H. R. Khanna and T. M. Sen, for the respondent. 1961.  April 24.  The Judgment of the Court was delivered by 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 s. 420, read with s. 511, ’of the Indian Penal Code. The appellant applied to the Patna University for permission to  appear  at the 1954 M. A. Examination in  English  as  a private  candidate,  representing  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 application, he attached certain certificates purporting  to be  from the Headmaster of the School, and the Inspector  of Schools.    The   University   authorities   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 despatched  to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

Headmaster of the School. Information  reached  the University about  the  appellant’s being  not  a graduate and being not a  teacher.   Inquiries were made and it was found that the certificates attached to the  application 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  examination  for  a certain  number of years on account of his having  committed corrupt   practice   at  a   University   examination.    In consequence, the matter was reported to the police which, on investigation, prosecuted the appellant. The  appellant was acquitted of the charge of forging  those certificates, but was convicted of the offence of attempting to cheat inasmuch as he, by false representations,  deceived the  University  and induced the authorities  to  issue  the admission  card, which, if the fraud had not been  detected, would have been ultimately delivered to the appellant. Learned  counsel for the appellant raised  two  contentions. The first is that the facts found did not amount 244 to  the  appellant’s  committing an  attempt  to  cheat  the University  but amounted just to his making preparations  to cheat  the  University.   The second is  that  even  if  the appellant  had obtained the admission card and  appeared  at the M. A. Examination, no offence of cheating under s.  420, Indian  Penal  Code,  would  have  been  committed  as   the University,  would  not  have  suffered  any  harm  to   its reputation.   The  idea  of  the  University  suffering   in reputation is too remote. The offence of cheating is defined in s. 415, Indian Penal Code, 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 intentionally  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  omis-               sion  causes or is likely to cause  damage  or               harm to that person in body, mind,  reputation               or property, is said to ’cheat’. Explanation.-A dishonest concealment of facts is a deception within  the  meaning of this section." 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 intentionally induced the University to permit him to sit at the M.A. Examination 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 reputation.  There is no doubt  that  the appellant,  by  making false statements about  his  being  a graduate and a teacher, in the applications he had submitted to  the University, did deceive the University and that  his intention was to make the University give him permission and deliver  to him the admission card which would have  enabled him  to  sit  for  the  M.A.  Examination.   This  card   is ’Property’.   The appellant would therefore  have  committed the offence of ’cheating’ if the admission card had not been withdrawn   due   to  certain   information   reaching   the University. 245 We  do not accept the contention for the appellant that  the admission  card has no pecuniary value and is therefore  not ’property’.   The  admission card as such has  no  pecuniary

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

value,  but  it has immense value to the candidate  for  the examination.   Without it he cannot secure admission to  the examination  hall  and  consequently cannot  appear  at  the Examination. In Queen Empress v. Appasami (1) it was held that the ticket entitling  the accused to enter the examination room and  be there examined for the Matriculation test of the  University was ’property’. In  Queen Empress v. Soshi Bhushan (2) it was held that  the term  ’property’ in s. 463, Indian Penal Code, included  the written  certificate  to  the effect that  the  accused  had attended, during a certain period, a course of law  lectures and had paid up his fees. We   need  not  therefore  consider  the  alternative   case regarding the possible commission of the offence of cheating by  the appellant, by his inducing the University to  permit him to sit for the examination, which it would not have done if  it  had known the true facts and the  appellant  causing damage  to its reputation due to its permitting him  to  sit for  the examination.  We need not also  therefore  consider the  further  question  urged for  the  appellant  that  the question  of the University suffering in its  reputation  is not  immediately  connected with the  accused’s  conduct  in obtaining the necessary permission. Another  contention  for  the appellant is  that  the  facts proved  do  not go beyond the stage of  reparation  for  the commission of the offence of ‘cheating’ and do not make  out the  offence of attempting to cheat.  There is a  thin  line between  the  preparation for and an attempt  to  commit  an offence.  Undoubtedly, a culprit first intends to commit the offence,  then  makes  preparation  for  committing  it  and thereafter  attempts to commit the offence.  If the  attempt succeeds,  he has committed the offence; if it fails due  to reasons beyond his control, he is said to have attempted  to commit   the  offence.   Attempt  to  commit   an   offence, therefore, can be said to begin when the preparations (1) (1889) I.L.R. 12 Mad. 151. (2) (1893) I.L.R. 15 All. 210, 246 are  complete and the culpit commences to do something  with the intention of committing the offence and which is a  step towards  the  commission  of the  offence.   The  moment  he commences  to  do an act with the  necessary  intention,  he commences his attempt to commit the offence.  This is  clear from  the general expression ’attempt to commit an  offence’ and  is exactly what the provisions of s. 511, Indian  Penal Code, require.  The relevant portion of s. 511 is:               "Whoever attempts to commit an offence punish-               able by this Code......... or to cause such an               offence  to be committed and in  such  attempt               does  any  act towards the commission  of  the               offence, shall, where no express provision  is               made  by this Code for the punishment of  such               attempt, be punished........." These provisions require that it is only when one,  firstly, attempts  to  commit  an  offence  and,  secondly,  in  such attempt, does any act towards the commission of the offence, that  he  is  punishable  for that  attempt  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  combination  with other  acts,  leads to the commission of the  offence.   The first  step  in the commission of the offence  of  cheating, therefore, must be an act which would lead to the  deception of  the  person sought to be cheated.  The moment  a  person

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

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 attempt to commit the offence, as contemplated by s. 511.   He  does  the act with the intention  to  commit  the offence and the act is a step towards the commission of  the offence. It  is  to  be borne in mind that  the  question  whether  a certain  act  amounts to an attempt to commit  a  particular offence is a question of fact dependent on the nature of the offence  and the steps necessary to take in order to  commit it.   No exhaustive precise definition of what would  amount to  an attempt to commit an offence is possible.  The  cases referred to make this clear.                             247 We may refer to some decided cases on the construction of s. 511, Indian Penal Code. In The Queen v. Ramsarun Chowbey (1) it was said at p. 47:               "To  constitute  then the offence  of  attempt               under this section (s. 511), there must be  an               act  done with the intention of committing  an               offence,  and  for the purpose  of  committing               that   offence,  and  it  must  be   done   in               attempting the commission of the offence. Two  illustrations of the offence of attempt as  defined  in this  section are given in the Code; both are  illustrations of  cases in which the offence has been committed.  In  each we find an act done with the intent of committing an offence and  immediately  enabling the commission  of  the  offence, although  it was not an act which constituted a part of  the offence,,  and in each we find the intention of  the  person making   the   attempt  was  frustrated   by   circumstances independent of his own volition.               From the illustrations 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 attempted............               The learned Judge said, further, at p. 49:               "I regard that term (attempt) as here employed               as indicating the actual taking of those steps               which  lead immediately to the  commission  of               the  offence,  although nothing  be  done,  or               omitted,  which  of  itself  is  a   necessary               constituent of the offence attempted". 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 illustration is  not to indicate such a construction of the section,  but to point out that the culprit has done all that be 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 illustrations               to               (1)   (1872) 4 N.W.P. 46.               248               s.    51 1, Indian Penal Code, would not  have               constituted  attempts under the  English  law,               and   I  cannot  but  think  that  they   were               introduced   in   order  to  show   that   the               provisions of Section 51 1, 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". In  In the matter of the petition of R. MacCrea (1)  it  was held  that whether any given act or series of acts  amounted

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

to  an attempt which the law would take notice of or  merely to preparation, was a question of fact in each case and that s.  511  was  not meant to cover only  the  penultimate  act towards the completion of an offence and not acts precedent, if  those  acts  are done in the course of  the  attempt  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 preparations made, a  long               interval  will still elapse between  the  hour               when   the  attempt  to  commit  the   offence               commences  and the hour when it is  completed.               The offence of cheating and inducing  delivery               is  an  offence in point.  The time  that  may               elapse    between   the   moment   when    the               preparations made for committing the fraud are               brought to bear upon the mind of the person to               be  deceived and the moment when he yields  to               the deception practiced upon him may be a very               considerable  interval of time.  There may  be               the interposition of inquiries and other  acts               upon  his part.   The  acts  whereby   those               preparations  may be brought to bear upon  her               mind  may be several in point of  number,  and               yet the first act after preparations completed               will,  if  criminal in itself, be  beyond  all               doubt, equally an attempt with the ninety  and               ninth act in the series.               Again,  the attempt once begun and a  criminal               act  done  in  pursuance  of  it  towards  the               commission  of  the act  attempted,  does  not               cease to be a criminal attempt, in my opinion,               because the person               (1)   I.L.R. 15 All. 173.                                    249               committing  the  offence does  or  may  repent               before the attempt is completed".               Blair, J., said at p. 181:               "It seems to me that section (s. 511) uses the               word ’attempt’ in a very large sense; it seems               to  imply that such an attempt 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 attempt.  It does  not  say               that  the last act which would form the  final               part of an attempt in the larger sense is  the               only  act  punishable under the  section.   It               says expressly that whosoever in such attempt,               obviously using the word in the larger  sense,               does any act, etc., 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.               Learned  counsel for the appellant  relied  on               certain  cases in support of  his  contention.               They  are not much to the point and do not  in               fact  express any different opinion about  the               construction to be placed on the provisions of               s. 511, Indian Penal Code.  Any different view

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

             expressed  has  been  due to  an  omission  to               notice the fact that the provisions of s. 511,               differ  from the English Law with  respect  to               ’attempt to commit an offence’. In  Queen  v.  Paterson  (1) the  publication  of  banns  of marriage was not held to amount to an attempt to commit  the offence  of bigamy under s. 494, Indian Penal Code.  It  was observed at p. 317:               "The publication of banns may, or may not  be,               in  cases  in which a special license  is  not               obtained.   a  condition  essential   to   the               validity  of  a  marriage,  but  common  sense               forbids us to regard either the publication of               the banns or the procuring of the license as a               part of the marriage ceremony."               (1)   I.L.R. 1 All. 316.               32 250 The distinction between preparation to commit a crime and an attempt  to commit it was indicated by quoting from  Mayne’s Commentaries on the Indian Penal Code to the effect:               "Preparation consists in devising or arranging               the  means  or  measures  necessary  for   the               commission of the offence; the attempt is  the               direct  movement towards the commission  after               the preparations have been made." In  Regina  v. Padala Venkatasami (1) the preparation  of  a copy  of  an  intended false  document,  together  with  the purchase  of stamped paper for the purpose of  writing  that false  document  and the securing of information  about  the facts  to  be  inserted in the document, were  held  not  to amount to an attempt 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. In  In  the  matter of the petition of Riasat  Ali  (2)  the accused’s ordering the printing of one hundred receipt forms similar to those used by a company and his correcting proofs of those forms were not held to amount to his attempting  to commit  forgery  as the printed form would not  be  a  false document  without  the  addition  of  a  seal  or  signature purporting 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 attempt to commit forgery  until               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 writing the name               of  the Company upon the printed form and  had               only completed a single letter 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 transaction  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 (3): (1)  (1881) I.L.R. 3 Mad. 4. (2) (1881) I.L.R. 7 Cal. 352. (3) Lee & Cave’s Rep. 145. 251               "There  is no doubt a difference  between  the               preparation  antecedent to an offence and  the               actual attempt; but if the actual  transaction               has  commenced, which would have ended in  the               crime if not interrupted, there is clearly  an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

             attempt to commit the crime.",               He  also quoted what Cockburn, C. J., said  in               M’Pher son’s Case (1):               "The  word ’attempt’ clearly conveys  with  it               the  idea, that if the attempt had  succeeded,               the offence charged would have been committed.               An  attempt  must  be to  do  that  which,  if               successful,   would  amount  to   the   felony               charged." It  is  not necessary for the offence under s.  511,  Indian Penal  Code, that the transaction commenced must end in  the crime or offence, if not interrupted. In  In re: Amrita Bazar Patrika Press Ltd.   Mukherjee,  J., said at p. 234:               "In   the  language  of  Stephen  (Digest   of               Criminal Law, Art. 50), an attempt to commit a               crime is an act done with an intent to  commit               that  crime  and forming part of a  series  of               acts   which  would  constitute   its   actual               commission if it were not interrupted.  To put               the matter differently, attempt is an act done               in  part  execution  of  a  criminal   design,               amounting  to more than mere preparation,  but               falling  short  of actual  consummation,  and,               possessing, except for failure to  consummate,               all the elements of the substantive crime;  in               other words, an attempt 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               defined  as that which if not prevented  would               have resulted in the full consummation of  the               act attempted: Reg. v. Collins This  again is not consistent with what is laid down  in  s. 511 and not also with what the law in England is. In  Stephen’s Digest of Criminal Law, 9th Edition,  attempt’ is defined thus: (1) Dears & B. 202.         (2) (1920) I.L.R. 47 Cal. 100. (3)  (1864) 9 Cox. 497. 252               "An  attempt to commit a crime is an act  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. An act done with intent to commit a crime, the commission of which in the manner proposed was, in fact, impossible, is an attempt to commit that crime. The offence of attempting to commit a crime may be committed in cases in which the offender voluntarily desists from  the actual commission of the crime itself." In In re: T. Munirathnam Reddi (1) it was said at p. 122:               "The   distinction  between  preparation   and               attempt  may be clear in some cases,  but,  in               most  of the cases, the dividing line is  very               thin.  Nonetheless, it is a real distinction.               The  crucial test is whether the last act,  if               uninterrupted and successful, would constitute               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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

             attempt to commit the offence of murder.   The               illustrations  in the section (s.  511)  bring               out  such  an  idea  clearly.   In  both   the               illustrations, the accused did all he could do               but was frustrated from committing the offence               of theft because the article 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 shooting  at  the victim 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. (1)  A.I.R. 1955 And.  Prad. 118. 253 We may summarise our views about the construction of s. 511, Indian  Penal Code, thus: A personal 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; such 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. 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  application  for permission  to sit at the University examination,  but  also followed  it  up, on getting the  necessary  permission,  by remitting  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 attempting to commit the offence and had  not gone  beyond the stage of preparation.  The preparation  was complete  when  he  had prepared  the  application  for  the purpose  of  submission to the University.   The  moment  he dispatched 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  examination  because something  beyond  his control took place  inasmuch  as  the University  was informed about his being neither a  graduate nor a teacher. We  therefore  hold  that the  appellant  has  been  rightly convicted of the offence under s. 420, read with     s.  511, Indian Penal Code, and accordingly dismiss the    appeal. Appeal dismissed. 33 254