Inchoate Crime and Preliminary Offences

Introduction

"Prevention is better than cure"

We all know this proverb very well. The concept of inchoate crime is based upon it. It is not necessary to only punish that person who committed the complete crime, but it is in the interest of justice and to prevent offences respectively to punish that person who has committed the incomplete crime.

Meaning of Inchoate Crime

There are different stages which lead to crime such as intention, Preparation, attempt and the final accomplishment to make a complete crime but what if these all the requisite stages don’t get complete and only some of them have been committed by the person. Can we still say that the crime has been committed? The answer is yes. Even incomplete offences are punishable by law such as ‘attempt to theft’, ‘abetment to murder’, or ‘Criminal Conspiracy’. These are known as Inchoate crimes.

Inchoate means not "yet completed" or "fully developed". The crime which has not been completed or reached its final stage of commission is known as Inchoate crimes.

Types of Inchoate crimes under Bhartiya Nyaya Sanhita

1. Abetment (Section 45 to 60)

The meaning of abetment is the act of helping or encouraging someone to do something wrong or illegal. When a person does not come at a crime himself but instigate or help any other person to commit a crime then such offences are known as abetment.

Essentials of Abetment:

• a person instigates another to do that thing
• a person engages in a conspiracy to do that thing
• a person intentionally aids the doing of that thing

Abetment by instigation: It means that the person actively suggests or stimulates to act by means of language which can be direct or indirect, gives hints, and encouragement.

Abetment by conspiracy: It means that there is an agreement of two or more persons to do an unlawful act or by unlawful means. There should be an act in furtherance of that conspiracy to be punished under abetment.

Abetment by aid: It means to help other person by doing an act or illegal omission to commit the offence.

Example: A instigates B to kill C. B does so. A is guilty of abetment to murder

Case Law: Sanju Vs State of MP (AIR 2002 SC)

Held: Mere words like "go and die" said in a quarrel or anger do not constitute instigation. Instigation implies active encouragement or incitement. There must be a clear intention to provoke or urge the victim to commit suicide.

Case Law: Asha Patil Vs State of Maharashtra (2019 SCC)

Held: Giving aid without knowing that the offence would have been committed or contemplate will not make the act of abetment of an offence. To make a person liable Mens rea must be there, since mens rea is an essential element of the offence of abetment.

2. Criminal Conspiracy (Section 61)

Criminal conspiracy means when two or more persons agree to commit an illegal act or commit a legal act by illegal means. The Agreement itself amount to criminal conspiracy even if some overt act has been done or not by the parties.

Essentials of criminal conspiracy:

• There must be an agreement between two or more persons
• Agreement should be doing of an illegal act or doing an act by illegal means
• An overt act must be done in furtherance of the agreement
• All the conspirators need to have knowledge of the objective
• Criminal conspiracy is a containing offence it is containing from the day one of planning to last execution
• Every member shall be held liable
• Mutual agency
• Jointly and mutually liable for acts of all or any conspirator
• In furtherance of act done towards common object

Example: A and B plan to counterfeit currency. even if no counterfeit note is printed, the agreement itself is punishable.

Case Law: Case: Kehar Singh v. State (Delhi Administrator) (1988)

Held: The Supreme court held that even if the intended offence is not committed, the mere agreement between conspirators constitutes a criminal conspiracy under section 120 B (now 61 BNS).

The court opined that the essence of the offence lies in the agreement itself, and the fact that the intended Act was not executed does not absolve the conspirators of their liability.

3. Attempt (62, 109, 64, 110, 226)

The attempt is the direct movement towards committing the crime. The attempt is an act done as per the planning which amounts to an offence.

A new section 62 has been added to the BNS which punishes whoever attempts to commit an offence punishable with life imprisonment or imprisonment and where no express provision is made be punished with one half of the imprisonment for life or longest term of imprisonment provided or fine or both.

Essentials of Attempt:

• a person has intention to commit a crime
• takes a direct action towards its commission
• crime is not completed due to circumstances beyond their control

Example: A fires at B intending to kill him but B escapes A is guilty of attempt to murder

Conclusion

Inchoate crimes should be punished by law to prevent crime at early stages and to discourage criminal intention. Many offences are punishable even if the actual crime does not take place. These include the attempt conspiracy and abetment.