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Stages in Commission of an Offence

A Crime is any act of commission or omission, which is contrary to law and which necessarily violates rights of people. Under the legal system of India, the criminal liability for an omission or an act arises out of a statute proscribing an act or omission. Criminal law refers to the set of rules and statutes that defines actions prohibited by the state because it harms and threatens public welfare and public safety and therefore it leads to punishment to be imposed for the commission of such acts.

The Indian Penal Code is the basic governing statute for determining the criminal liability for offences stated in it, and also for declaring exceptions to the questions of criminal liability for the offences covered under the local or special laws. It contains within itself various provisions that embody the doctrine of common purpose found in the criminal law system.

The term criminal law refers to substantive criminal laws. Substantive criminal laws are the ones that define crimes and prescribe punishments respectively. There exist four prime elements that constitute a crime, that is, human being, guilty intention or mens rea, illegal act or actus reus and injury to another human being.

For crime to take place, there has to be wrong intention behind the commission of the act. The Maxim 'actus non facit reum, nisi mens sit rea' embodies this principle that the act alone does not amount to guilt unless the mind is also legally blameworthy. The fundamental principle of crime itself consists a wrongful act, actus reus that is amalgamated with a wrongful intend, mens rea which interpret criminal liability.

Actus Reus is the physical aspect of the crime while mens rea refers to the mental aspect of the crime. The mens rea must always be criminal and concurrent to actus reus. An act is intentional when it is the outcome of determining the person's will and is foreseen and desired by the person. Thus, mens rea requires both a will direct to a certain act and knowledge about a particular act's consequences.

The commission of a crime goes through three stages viz. first, conceiving an intention to commit a crime, secondly, preparation for its commission and lastly, the attempt made to commit it. Generally, the first two stages are not punishable but once the act enter into the third stage criminal liability arises. Thus, an attempt to commit a crime forms part of a series of acts.
  1. Intention
    Intention has not been sufficiently defined by statute and its meaning therefore has been distilled from the jurisprudence of the superior courts. It is the common-sense meaning of intention that coincides with what majority consider is an objective to do something, that is, the accused's 'aim or purpose'. The intention is the first stage in the commission of a crime and is generally known as the 'mental stage'.

    The intention is the conscious excise of the mental faculties of an individual to commit an act for the purpose of satisfying another purpose. Merely intending to commit a crime is not an offence as mere mental determination or desire to commit a crime does not amount to culpability. Law does not observe the intention.

    In Hari Mohan Mandal vs. State of Jharkhand, Hon'ble Supreme Court held that it is not essential that bodily injury capable of causing death should have been inflicted. Intention to kill or knowledge that death will be caused is a question of fact which will be subject matter of trial. Therefore, criminal intent is the conscious decision someone makes to deliberately engage in a negligent or an unlawful act or to harm someone else.

    Intention being the first stage in the commission of a crime deals with the mental status of a person (mens rea). It is the direction of conduct towards the object chosen upon considering the motives which suggests the choice. The Indian Penal Code does not contain a properly defined definition of the term 'intention'.

    The word 'voluntarily' as defined under section 39 of IPC is to be understood with the causation of effects and not to act from which those effects result. The stage of intention is not punishable because one can revert back from the idea of carrying out an offence. Criminal intention primarily is divided into 2 types, that is, Direct intention and Indirect/Oblique intention.

    The accused is said to have direct intention when he intended a particular consequence of the wrongful voluntary act. Several criminal offences specify intention as the mens rea which may be direct or alternatively indirect where the prohibited act has result that were not the accused's primary purpose. Therefore, indirect/oblique intention is bringing about another consequence, which although the accused foresaw as a probable consequence but did not mean to do the same.

    In general, the law draws a distinction between motive and intention. One may have a good motive or reason for committing an offence but moral justification can not excuse where the accused intends prohibited harm. Motive is relevant to evidence and punishment and therefore is no defence. The law is not interested in knowing 'why you act' but in 'whether you committed the actus reus of any crime with the necessary Mens Rea.

    Some of the exceptions that do exist are Section 121 and 123 of IPC (waging war against the government), Section 124-A (sedition), Section 120-A (criminal conspiracy) and so on. In Sherras's case the court held that mens rea is an essential ingredient of crime except in:

    1. Cases not criminal in real sense but which in the public interest are prohibited under a penalty,
    2. public nuisance, and
    3. cases criminal in form but which are really only a summary mode of enforcing a civil right.
    Thus, any crime requires wrong intention or mens rea as its element and no crime can be made without it.
  2. Preparation
    In criminal law, the first two stages of intention and preparation are generally not made punishable. As discussed in previous section, law does not as a rule punish individuals for evil intention. Further, it is always possible for a person to give up his evil intentions. It is possible that the person, who originally had the intention to commit a crime gives it up and do not go ahead with the preparation.

    It is when an act has gone beyond the stages of preparation towards achieving the intention that the law of attempt begins and criminal liability covers the act committed. 'Preparation' refers to the arranged means and measures necessary for the commission of an offence. Like intention, the stage of preparation too is not punishable because it is impossible to show that preparation was done to meet the wrongful end or was done with malicious mind.

    For example, if A acquires a gun from an ammunition depot with an intention to kill C, he loads his gun and keep it hidden inside his home. At this stage A made the preparation to kill C but he did not do so. In this case A cannot be held liable for the offence of murder because it is not possible to show that A had loaded the gun to kill C.

    While preparation to commit an offence is not generally defined to be an offence but special variety of acts are defined to be offences although they may constitute preparation to commit those offences. Under Section 122 the IPC collecting men, arms and ammunition to prepare to wage war against the government of India.

    If any group of people have assembled to conduct dacoity in that case their assembly is punishable under Section 402 of the Indian Penal Code. If a person commits or has an intention to wage a war against the government in that case mere intention to commit the same is punishable under the Section 123 of the Indian Penal Code. The dividing line between a mere preparation and an attempt is sometimes thin and there lies a greater degree of determination in attempt as compared with preparation.

    The distinction is listed below:
    Preparation Attempt
    Stage: It is an act of arranging all the necessary means or commodities to do an illegal act. Stage: Attempt is an act done as per the planning which amounts to offence in all cases.
    Knowledge: Only the person or group of people who intend to commit the crime knows the fact. Knowledge: Once the attempt is completed it manifests.
    Preparation is an executory act, it comes before the attempt. Attempt is an executed act. Attempt is directed movements towards the commission after the preparation is made.
    Illustration: X purchases a knife to kill Y. Mere purchase of knife is just the preparation. Illustration: X purchases poison and mixes in the meal of Y with an intention to kill her. It is an attempt.

  3. Attempt
    The third stage is that of 'Attempt'. First two stages generally are not punishable but once an act enters into the third stage criminal liability arises. Thus, an attempt to commit a crime forms part of a series of acts. The reason why the first two stages in the series, that of mental determination and that of preparation are not punished is that they are too remote from the completion of the crime whereas the stage of attempt takes the offender very close to successful completion of the crime.

    The complication for the law to decide is whether that stage when the accused ought to be punished has been reached. When a preparation ceases and attempt begins is a difficult problem to solve.

    Also known as Preliminary Crime, the term attempt means direct movement towards the commission of a crime after necessary preparations made to carry out an offence. The Indian Penal Code does not hold any specific definition of 'attempt' but Section 511 of IPC does provide punishment for stiving to commit a crime. Criminal law punishes the wrongdoer for this stage depending upon the nature and gravity of the attempted offence.

    Ingredients of attempt include guilty intention to commit an offence, some act done towards the commitment of the crime and the act must fall short of the completed offence. Therefore, the offender's moral guilt is the same as if he is not as severe as in the case of an actual crime.

    The absence of the definition of the attempt to commit offences made the courts in course of time to evolve certain tests to determine whether the act in question amounts to attempt:
    Proximity Test:
    The Proximity Rule states that the act or a series of act, in order to be designated as an attempt to commit an offence, must be sufficiently proximate to the accomplishment of the intended substantive offence. Proximity is a linkage between time and action or to the intention. It is applied in the cases third stage that is of attempt. It primarily focuses on whether a person is 'dangerously close' to complete the crime or 'so near' to the result that the danger of success is very high.

    The proximity calculator is not linked to time neither it is linked to action, but it is linked to the person's intention. An act towards the commission of a crime must not be penultimate, but such an act must be proximate to the intended result. Illustration: Y bought a matchbox and lit it near a haystack. He then extinguished it perceiving that someone was looking at him. If he had merely bought the matchbox and not lit the matchstick, he would be absolved of any responsibility. The lighting of the matchstick is the actus reus necessary for prosecuting him for an attempt to commit a crime.

    Locus Poenitentiae:
    This is a doctrine used to determine when an act is merely preparation rather than when can an act be an attempt. Hence, the doctrine of Locus Poenitentiae says that when an act is such that there is ample time with the accused to choose whether to commit such crime or not; and is within the control of that person. The intender may change his path or may fear the consequences, if the act is in control of the intender to not to commit the offence, then it is said to be mere preparation and not an attempt. Hence, it is not punishable under penal law.

    Equivocality Test:
    This test is a combination of the above two tests. This test requires the unequivocal intention through the act done which is considered to be fulfilled beyond a reasonable doubt that the end is towards the crime intended. Illustration: Z received an order on buying diesel of good quality and they asked the customer to come the next day. That night Z was seen mixing the diesel with kerosene and were charged with the offence by the next day. He claimed that what they did was mere preparation. On this the court observed that when Z knew that the customer was going to come the next day and in furtherance, the accused tried to add diesel and kerosene night itself so that they are not caught or seen by the customer. And he did so to act in a way to cheat that diesel was of good quality.

    Probable Desistance Test:
    The probable desistance test examines how far the defendant has progressed with commission of the crime, rather than analyzing how much the defendant has left to accomplish. In accordance with this test, a defendant commits attempt when he/she has crossed a line beyond which it is probable he/she will not desist unless there is an interruption from some outside source, law enforcement, or circumstances beyond his/her control.

    Impossibility Test: An act that is impossible to execute cannot be attempted and is thus cannot be made guilty of. In such cases, there is no possibility to understand the goal of the accused. Impossible acts are not punishable, but the impossibility must be absolute and not only relative. Exception to this would be the case of attempt to theft as though the act was impossible due to some unfavourable condition, therefore according to section 511, it constitutes an offence of attempt and thus, would be punishable.
  4. Commission
    The final stage of an offence is where the crime is completed, that is, commission or accomplishment. The crime, generally becomes punishable only after the crime has been committed. If the accused guilty of committing the crime succeeds in his attempt, he is said to be liable of the complete offence. But if his attempt is unsuccessful, he will only be guilty of the attempt he made. Commission is always considered when it has met the desired intend and therefore caused injury to another person and therefore which the accused will be held liable.

    For instance, if A fires at Z with the intention to kill him, and if Z dies, A will be guilty for committing the offence of murder but if Z is only injured, the wrongdoer will be liable for a case of attempt to murder. Another illustration of accomplishment of crime would be, if X who acquires a gun or a revolver from certified ammunition store with a license, but has an evil intention of killing his bitter enemy Y. He keeps the weapon in his pocket duty loaded but does nothing more than that.

    Here all the essential elements are present, which leads to commission of any offence (mens rea + actus reus + act towards commission). X has the intention of committing the offence and he did make preparations for the same but he has not yet committed the offence. X locates Y in the nearby garden and fires aiming at him. If the bullet hits Y causing fatal injury leading to his death, then the attempt of X is successful and the intention of X is accomplished. X will be liable for the offence of 'murder' under Section 302 of IPC. If Y got injured then X would be liable for the offence of 'attempt to murder' under Section 307 of the IPC.

    Criminal Law is concerned with results emanating from human conduct and with the cases which the criminal policy of a given community has singled out as sufficiently harmful to it to prohibit them, with sanctions for disobedience to the prohibition. The ancient maxim 'actus non facit reum, nisi mens sit rea' has remained unchallenged as a declaration of principle at common throughout the centuries up to the present day which envisages that no man should be convicted of a crime unless the two requirements of mens rea and actus reus are satisfied in every crime.

Extra-Territorial Jurisdiction
The word Jurisdiction emerges from combination of two Latin terms, that is, Juris, meaning law, and Dicere, meaning to speak. Jurisdiction primarily refers to the extent of the authority bestow upon a legal body to administer justice within that defined dominion. It is the area wherein the law or the decisions of a legal body (the courts, political or government office or any law enforcement agency) remain applicable. The territorial coverage of the Indian Penal Code extends to the whole of India.

The general principle of criminal jurisdiction is that it is determined by the locality of the offence or wrong committed, which is irrespective of the nationality or other similar attributes of the offender.[1]

Territorial Jurisdiction as laid under Section 2 of the Indian Penal Code, declares that every person shall be legally responsible for punishment under the code and not otherwise for every omission or act contrary to the provisions of the code of which he shall be guilty within India. Extra-Territorial Jurisdiction is referred to as the situation when a state extends its legal powers beyond its territorial boundaries. For instance, when a criminal offence can be prosecuted in a country regardless of where the crime was committed, or when a country maintains jurisdiction over its citizens while they are overseas.

Section 3 and Section 4 of the Indian Penal Code, 1860 relate to extra-territorial jurisdiction as well as extra-territorial operations. Section 3 punishes any person who commits any offence and for which he can be made liable under Indian law. The offence must be committed outside the territory of India and its repercussions must affect India.

Thus, the section implies that if any person who is an Indian citizen, does any act outside the territory of India, will be liable and can be tried in India even if the act committed was not an offence in that country[2]. It was also observed that section 3 helped authorities in India to proceed by treating the offence as one committed within India. For practical purposes, assumptions were necessary to be made.[3] Whereas, section 4 expands the scope of extra-territorial jurisdiction of the Indian Penal Code.

The section shows the extent to which the Code can apply. It inflicts liability over a person who has committed the offence outside the territory of India but is found at the present time, in the territory of India. In exercise of the extra-territorial jurisdiction, the Courts of India are empowered to try offences which are committed outside India:
  1. On Land
  2. On Aircraft; and
  3. On the High Seas
The concept of section 3 and section 4 of the Indian Penal Code, 1860 can be understood with the help of Remia v. Sun-Inspector of Police, Tanur & Others case. The facts of the case are that a complaint was filed by the mother, brother and widow before the Sub-Inspector of Police. The complaint was regarding the death of Sulaiman and that in the complaint it was specifically mentioned that they suspect one who has murdered Sulaiman at Sharjah in UAE.

The Sub-Inspector of Police refused to register the case of murder on the grounds that the alleged crime was committed outside his territorial limits (outside India). The petitioner, therefore, filed the original petition directing the Sub-Inspector of Police to prepare on FIR and register the case on basis of Ext. P3 complaint and to start with the investigation. The learned Government pleader challenged that the Sub-Inspector of Police has his reasons that are justified because no police in the State can look into the offence committed beyond the territorial limits of India.

But, when the Kerala High Court examined section 3, section 4 of the IPC and Section 188 of Cr PC, it was found and thereafter held that refusal by the Sub-Inspector of Police, Tanur was illegal[4]. Even when during the investigation stage, if the person is unavailable in India, extradition [Section 4(1)] proceedings needs to be restored. The final conclusion is that the Sub-Inspector of Police can conduct the investigation because irrespective of where the crime took place, the person on whom the focus of suspicion turns was laid to be a citizen of India.

Therefore, Jurisdiction is a term referred to as the limits within which Courts of a State can exercise their powers over cases. With respect to the Indian Criminal Courts, there are two types of territorial jurisdiction, that is, intra-territorial jurisdiction and extra-territorial jurisdiction. The extra-territorial jurisdiction deals with offenses and crimes committed beyond the territory of India. The Criminal Courts have the authority to exercise their powers within these jurisdictions and are to stick to the provision of the Indian Penal Code.

  1. Mobarik Ali Ahmed v. State of Bombay, A.I.R. 1957 S.C. 857 : 1957 Cr LJ 1346 (SC) : 1958 SCR 328
  2. Pheroze v. State of Maharashtra, 1964 (2) Cr LJ 533 (Bom).
  3. Remia v. Sub-Inspector of Police, Tanur & Others, 1993 Cr LJ 1098 (Ker.)
  4. See also, Muhammad v. State of Kerala, 1994(1) KLT 464 (DB); Samaruddin v. Assistant Director of Enforcement, Trivandrum, 1995 Cri LJ 2825 (Ker); Muhammed Sajeed v. State of Kerala, 1995 Cri LJ 3313 (Ker).

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