The IPC and Attempts

Try and try, till you succeed. Everyone has heard that one before, in multiple contexts. The thing is, in the criminal law we may need to alter that old cliche: try and try, but it doesn't always matter if you succeed. Consider any set of actions by persons as an attempt to do/not do something. When these attempts fit the criteria of an offence as prescribed by law, it becomes punishable as the offence. So, my successful attempt to kill someone is punished as murder, for Section 300 of the Indian Penal Code 1860 [IPC] squarely covers such acts. But, an unsuccessful attempt also renders one liable under offences that specifically punish an "attempt to commit the offence". From hereon, attempt will refer to this unsuccessful commission of the offence alone. Unlike most other posts, here I won't engage with case law but only interpret the text of the IPC, to hopefully learn more about the nature of attempt liability under the Code. 

Many Possible Classifications 

The IPC doesn't separately define attempts like it does similar offences of abetment and conspiracy. Perhaps taking this, cue most commentaries don't explain attempts as a concept either. Rather, they discuss it in a piecemeal fashion wherever the word occurs in the Code. A unified understanding is helpful and raises important questions, and I'll try one here. At the broadest level, we find that in the IPC attempts may be punished either as severely as commission of the offence itself, or with a lighter sentence. Where Section 121 punishes attempts to wage war as severely as waging war itself, Section 307 imposes a lighter sentence for attempting to commit murder as against committing murder. Flowing from this, is a twofold classification where lighter sentences are imposed: there is the general punishment formula prescribed in Section 511, together with specific offences which prescribe the punishment for attempting to commit particular offences as under Section 307.

Here, one may ask why such a distinction is made in the imposition of sentence. Why should the outcome of my criminal enterprise matter in the determination of my punishment only for some cases but not others? At first, you may assume the class of offences is key. It isn't, because this equal punishment can be found in offences against the state, against justice, and against the body. Further, of the several offences against the body, only three pertaining to extortion carry equal punishments for attempts. This, and the absence of any clear theory underlining punishment standards under the IPC, make intelligent guesses difficult on the point.

Scope of Attempts and the Basic Text

Section 511 punishes attempts generally, but neither does it only punish attempts nor does it punish attempts to commit all offences. It also punishes causing the commission of an offence. Further, only attempts to commit offences punishable with imprisonment are covered; those only attracting fines are excluded. In Section 511, attempts themselves are not defined but only the punishment for such conduct is detailed. This scheme is followed in the other, more specific, offences of attempt. On a closer look though, there is some amount of understanding we can derive. The Section reads: "whoever attempts to commit an offence ... and in committing such an attempt does any act towards the commission of the offence". This means that only attempts to commit offences together with an act towards such commission make one's conduct punishable. Section 307 is similar: it specifies that any act done with the specified mental element would qualify for liability.

The specific usage of "any" act means the possible scope behind punishing attempts is rather broad. This also carries the possibility of rendering attempt liability quite vague and framing charges rather discretionary. How so? Well, its notorious how difficult providing proof of intention/knowledge can be in crime. The best evidence is usually conduct, and here we find the possible scope of conduct to consider being stretched to the widest possible spectrum. This creates situations where a conviction depends solely on the judge and little else, making the law highly arbitrary. One judge may view my going around the same house at night looking at a window as an attempt to commit house trespass; another may think of me as just another curious bystander, while yet another may look at the hoodie I was wearing and find enough reason to convict on attempted robbery. Such arbitrariness is clearly unwelcome in an area where certainty is of utmost importance.

Doing away with the Preparation Riddle?
Upon a simple reading of the text of Section 511, it is clear that there is a separation between the attempt and the act. It seems to imply that an attempt is complete in itself without an overt act being involved, since the latter is separately mentioned to make the attempt punishable. Why is this interesting? Because traditionally, we always understand attempts as including at least some act. Otherwise, where do we draw the line between attempts and mere preparation? Maybe, one might argue, the IPC sought to do away with the entire attempt-preparation separation and instead provided a simpler rule - anything done might possibly attract liability, depending on how the magistrate views things. Given the immense discretion vested in magistrates throughout the Code, such a reading is not implausible.

Conclusions
A bare reading of the IPC brings forth quite a few interesting issues on perhaps the trickiest area in criminal law. To prevent the death by boredom induced by a painfully long post, I limited myself to only a few of these. Two other issues that I think connect well with what is discussed here are that of an accused having a locus poenitentiae, and the possibility of committing impossible attempts. In another post, hopefully, one of these will be discussed at greater length.

Guest Post: Understanding the CBI

I am pleased to present a guest post by Ms. Deekshitha Ganesan, a Fourth Year student in the B.A. LL.B. (Hons.) Programme at NLSIU, Bangalore 

The Central Bureau of Investigation is commonly seen as India's premier investigation agency, tasked with solving the most challenging cases. This, naturally, has lead to an intense level of scrutiny of its every move - best seen through the constant media updates surrounding the allegations against the former Director. However, the actual workings of the Bureau: its statutory basis, funding, operational methods etc. are relatively unknown to most of us. Through this post, I wish to explain these rather lesser known aspects of the CBI, and highlight some major issues plaguing the functioning of the Bureau. 

History

In 1943, the Special Police Establishment ["SPE"] was established by Ordinance (No. XXII of 1943) to deal with those individuals taking wrongful advantage of the emergency conditions during WWII and enriching themselves at the cost of the Central Government. Soon there was a challenge to its validity, which led to passing of the Delhi Special Police Establishment Act, 1946 [“DSPE Act”]. The Act was in exercise of powers conferred upon the Central Legislature through Entry 39 of List I of the Seventh Schedule to the Government of India Act 1935. Subsequent to the statute, the SPE was transferred under the Ministry of Home Affairs and its functions were expanded to cover all Central Government departments. Investigations into matters of the state government needed their consent. In 1963, the Ministry of Home Affairs passed Resolution No. 4/31/61-T creating a Central Bureau of Investigation, and the functions of the SPE were transferred to the newly created Bureau. Today, the CBI falls under the purview of the Department of Personnel and Training [“DoPT”] of the Government of India. It has six branches/wings, one of which absorbed the erstwhile SPE.

Resources

With the CBI under the DoPT, until 2013 its budgetary allocations were subsumed under the allocation for the DoPT. In 2013, in response to an affidavit of the Central Government rejecting the CBI’s demand for greater autonomy, the Bureau pointed out the many layers of scrutiny within the DoPT to requisition money spent on basic facilities such as laptops for investigators on the field. Since then, the interim budget of 2014 and the 2015 budget have both included separate, specific budget allocations for the CBI. However, there is no clarity as to whether this was a result of a Supreme Court order.

Despite the limited financial autonomy, the CBI deals with a huge variety and volume of cases. This necessitated establishment of a Central Forensics Science Laboratory [“CFSL”] in New Delhi with 11 divisions, under administrative control of the CBI. The CFSL also has a Digital Imaging Centre to assist in the analysis of electronic evidence. In a controversial move, the Government Examiner for Questioned Documents [“GEQD”] was merged with the CBI to assist in the investigation of white collar crimes. GEQDs across the country argued they were pioneering organisations in the field of forensic sciences and that their documentation divisions and those of the CFSL function differently, which will make coordination difficult. Nevertheless, the Government went through with the decision in 2012. More recently, in May 2015, a new CBI Academy was inaugurated at Ghaziabad to decode information contained in Apple and Linux devices to aid in the investigation of bank frauds, cyber crimes, complex financial crimes, among other conventional crimes.

Expertise and Commencing Investigations

The history of the organisation makes it evident that its expertise lay in economic crimes, and this forms the bulk of cases handled by the Bureau today as well. However, being the sole investigative agency beyond the powers of the State Government contributed to a perception of the CBI as an "independent" organisation. Consequently, several sensitive cases regardless of their nature continue to be transferred to the Bureau owing to allegations of bias in investigations by the local State Police. How does the CBI operate? The division of labour between Union and State Legislatures means there is a need for specific consent from the concerned state before the CBI begins investigating in its territory [Section 6]. Even otherwise, the Union must specify by notification the offences/classes of offences which are to be investigated by the CBI [Section 3]. Therefore, the preliminary challenge to any investigation is the issue of consent. Recently, a Constitution Bench clarified that the requirement of consent does not affect the powers of the Constitutional Courts to order the Bureau to conduct an investigation in spite of any consent from the concerned government [See, State of West Bengal v. Committee for Protection of Democratic Rights, AIR 2010 SC 1476].

Another preliminary issue is that of obtaining sanction. Prosecuting public servants in India involves taking a prior sanction. In the case of the CBI, Section 6A of the DSPE Act was inserted in 2003 making it necessary to obtain a sanction even before beginning an investigation on allegations against certain officers. Apart from it being an unreasonable fetter on the CBI's investigative power, it was also argued that placing certain officers behind such a protection was unconstitutional under Article 14. The issue was referred to a Constitution Bench of the Supreme Court, and in Dr. Subramanian Swamy v. Director, CBI [(2014) 8 SCC 682] Section 6-A was struck down as unconstitutional. 

Conducting an Investigation

Investigation is required to be conducted as per the provisions of the Code of Criminal Procedure, 1973 and the Crime Manuals merely act as guidelines However, the CBI does not investigate all offences falling under a notification under Section 3. As per Chapter 1 of the CBI Crime Manual, there exists an arrangement between the State Police Force and the CBI on division of cases to ensure coordination and avoid duplication. This is to be seen in light of the fact that ‘Police’ is a State subject and Section 6 of the DSPE Act which requires permission to be taken for exercise of powers by the CBI in a State.

The CBI is empowered to conduct investigations based on complaints received from any person, including members of the general public. Upon receipt, the complaint is forwarded to the appropriate branch of the CBI. However, the most common way by which the CBI begins investigation in a case is upon complaints from the Central Government Departments, State Governments, Ministries and Public Sector Undertakings etc. In these cases, the procedure for registration and verification of the complaint is required to be followed. However, where the complaint itself mentions specific allegations and reveals a criminal offence that is fit to be registered as a Regular Case, the permission of the Competent Authority is required to be taken. 

Conclusion

The most important issue surrounding the CBI today is the debate surrounding whether a separate statute should be enacted to recognise its independence. At the moment, right from its constitution to the list of offences which it can investigate, everything is determined by the Central Government. Until very recently, the CBI needed the sanction of the Central Government to prosecute certain classes of bureaucrats. Many officers of the CBI have suggested that the Bureau's powers and autonomy should be along the lines of those granted to the Election Commission. Without a statute clearly defining the extent of the Bureau's powers, without removing the curbs on its powers laid down in DSPE and without amending the extent of the Central Government’s superintendence over the CBI, decisions like that of the Gauhati High Court in Navendra Kumar v. Union of India & Anr. [Writ Appeal No.199/2008, decided on 06.11.2013], will continue to be a reality.

Section 82 CrPC and Proclaimed Offenders

This post highlights what seems to be an anomaly in the procedure under Section 82 of the Criminal Procedure Code 1973 [Cr.P.C.] for compelling the appearance of persons before court. But before coming to the issue itself, its necessary to explain the general scheme of securing the attendance of persons under the Code.

Summons, Warrants and their Compliance

How does the court secure the presence of persons before it? Chapter VI of the Cr.P.C. explains this procedure in detail, telling us that there are either (a) summons or (b) warrants of arrest, that may be issued by a Court to ensure a person is present before it. Although the Code does not provide for a distinction, in practice two kinds of warrants may be issued, (i) bailable warrants and (ii) non-bailable warrants. The Supreme Court in Inder Mohan Goswami v. State of Uttaranchal [(2007) 12 SCC 1] provided some guidelines on how this discretion vested with a court may be exercised.

If summons were sent to X and she failed to comply without tendering any explanation, a warrant may be issued for her arrest [See, Section 87 Cr.P.C., which enables a warrant to be issued even where summons have not been sent]. But what happens when despite a warrant being issued, a person fails to appear before the Court? If the court has reason to believe that the person is deliberately avoiding the warrant, Section 82(1) empowers the court to publish written proclamations [in accordance with Section 82(2)] requiring her to appear before court on a specified place and time. But what if, despite the proclamation, the person fails to appear?

Of Proclaimed Persons and Proclaimed Offenders

Section 82(4) was inserted in 2006 to state that failure to appear after a proclamation entitles a court to pronounce the person a "Proclaimed Offender" and make a declaration to that effect. Importantly though, 82(4) is limited to proclamations in respect of persons accused of offences punishable under Sections 302, 304, 364, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code. The consequences of a proclamation are twofold. One, a proclamation triggers Section 83 Cr.P.C., enabling a court to attach any property belonging to the proclaimed person which may be sold upon continued absence. Two, Section 174-A of the IPC (also inserted in 2006 by the same amending statute) makes it an offence to not appear following proclamations under Section 82 Cr.P.C. In 174-A IPC a distinction was made: disobeying a Section 82(1) proclamation was punishable with imprisonment upto 3 years or fine or both, but where a declaration under Section 82(4) was made a person could be punished with imprisonment upto 7 years with a mandatory fine. 

The History behind the Text

The notion of a Proclaimed Offender as it exists today did not always find a place in the Code. in the 1872 Code, there was no mention of a Proclaimed Offender. It was in Section 45 of the 1882 Code that the words were first found, only in respect of the duties of village officers to make a report. In 1894 an explanation clause was added to Section 45 thereby expanding the definition of Proclaimed Offender. This was the first instance when the list of sections currently found in Section 82(4) found a place in the Code. The 1898 Code retained the provisions of Section 45 with respect to Proclaimed Offenders in its amended form, which today is provisions of Section 40 of the Cr.P.C. 1973.

Why was the definition of Proclaimed Offender expanded in 1894? The clause expanding the definition was in fact one in a set of identical clauses inserted that to iron out jurisdictional issues which were faced by the Crown in prosecutions of certain offences. This is clear by reading the full clause:

"the expression proclaimed offender includes any person proclaimed as an offender by any court or authority in any territory in India to which this Code does not extend, in respect of any act which if committed in the territories to which this Code extends, would be an offence punishable with under any of the following sections of the Indian Penal Code, namely, 302, 304, 364, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 (both inclusive)"

Through history, we understand why it was necessary to amend the law in 1894 to insert the clause with this specific list of sections. Since the Cr.P.C. does not extend to all parts of India, it made sense to retain it post independence. But why was this list of sections specifically inserted in Section 82? For that, I found no answer. Although the proposal was seemingly made in the Criminal Procedure Code (Amendment) Bill of 1994 and included in a questionnaire prepared by the Law Commission, there is no discussion in the Report. These offences cannot be considered exhaustive of the set of grave offences under the IPC to argue that they merit a separate class. All facts seem to suggest that this list of offences is rather arbitrarily placed under Section 82(4) Cr.P.C.

Dealing with the Current Position
For reasons we cannot gather, Section 82 today creates two separate classes of proclamations: those for persons accused of offences specified under Section 82(4), and all other proclamations. This is supplemented by Section 174-A IPC, which reiterates that a higher punishment may be inflicted upon those declared Proclaimed Offenders under 82(4). There is no such declaration for disobeying the other proclamations issued under Section 82(1), which brings us to the issue at hand. Can persons other than those accused of offences listed under Section 82(4) be declared Proclaimed Offenders? The absence of any declarations outside of Section 82(4) was considered a problem by the Punjab & Haryana High Court, and in a lengthy decision [Deeksha Puri v. State of Haryana, Crl.M.C. 359/2012 decided on 16.10.2012] it concluded that the apparent labeling lacuna must be resolved by calling any persons disobeying a proclamation a Proclaimed Offender.

I disagree with the High Court on two points. First, the absence of a declaration for 82(1) Cr.P.C. does not create any real problem as is evident from the declaration mechanism being entirely absent from the Code until 2006. Second, even if there is a problem of labeling, the High Court arrived at solution by effectively rewriting the plain text of the statute which is contrary to settled principles of interpretation. Rather than proactively amend the law, its better to stick to the plain text and follow the procedure which follows, i.e. restrict declarations of Proclaimed Offender to only those cases outlined under Section 82(4). As I often conclude though, an amendment would indeed be ideal.

My thanks to Mr. Ankit Agarwal, Advocate and Ms. Shweta V., undergraduate student at NUALS, Kochi for their inputs and assistance