Introduction
Voluntas reputabitur pro facto, i.e., the will is taken to be the deed, is a maxim that underpins the culpability of attempt by stressing on the gravity of ‘objective.’ With no definition provided in the Bhartiya Nyaya Sanhita, reliance is exclusively placed on judicial precedents for identifying an action as an attempt. It assumes a more nuanced outlook when we try and distinguish it with preparation. The test of proximity is apparently the most used in India, the U.K. and the U.S.A. out of the numerous tests constructed to demarcate between attempt and preparation. Recently, the Rajasthan High Court held that the disrobing of clothes did not amount to attempt to rape but outraging of modesty. This has sparked a discussion on the criteria being used for cases of attempted rape including the proximity test. The paper initially discusses the proximity test and how its application may not be as simple as its underlying premise. Secondly, the feasibility of alternatives that may substitute or supplement the proximity test is explored.
The Fallouts and Convolutions of The Proximity Test
While the Proximity test offers a fair and just parameter along with logical coherence, it is not devoid of faults and mazing intricacies, giving rise to legal uncertainties. This part explores how the workings of the test unravel hindrances that may befall in its practical application.
A.Lack of a Blanket Formula Owing to Uncertainty
The Sudhir Kumar Mukherjee Judgment held that an attempt need not be ‘penultimate’ but ‘must be an act during the course of committing the offence’. Here, the proximity test assumes a rather uncertain nature where the exact positioning of the stage has not been defined, which makes it difficult to classify which act can be said to transcend beyond the stage of preparation. Intention cannot be analysed in simple terms. The concept of knowledge is equally complicated as it may accrue at any stage which may affect the culpability of the accused. In such cases where the course of the commission of a crime is filled with variants that may include or exclude one or more steps, it becomes difficult to apply the proximity test in its strictest sense. Therefore, the proximity test may work in a lot of cases but is not a one-stop solution for all.
B.Differing Interpretations
The apex court has laid down two different criteria under the proximity rule for differentiating preparation from attempt in the case of State of Maharashtra v Mohammad Yakub. In the present case, the offenders were at the stage of the penultimate act and failed to complete the last step owing to the lawful intervention. The first one is an intention-based approach, while the second one pertains more to the actual physical proximity The first approach measures the proximity of the act to intention and not to time and action. The second approach considers the act to be an attempt in relation to proximity with the completion of the unlawful act, in this case, the export of goods. The intention-based approach advocates that the act must necessarily be indicative or suggestive of the intention. The certainty of the intention was determined by the circumstantial evidence in this particular case. The doctrine of proximity test rests on the premise of ‘close connection’. The term is a subjective one and is subjected to the specific facts and circumstances of the case. The bifurcation of the ‘proximity’ interpretation probably best exemplifies the nuanced nature of classifying an attempt. Several scholars and jurists have presented interpretations of proximity they found best suited to institute precision on the question. For instance, in a New Zealand case, ‘objective observation of physical acts’ was held to be the sole determinant of proximity. These instances indicate the multi-dimensionality of the terminology of proximity with a lesser possibility of a blanket interpretation agreeable to all.
Alternatives and their workability
A mid-way here can be adopted, which will also aid in retaining the significance of the proximity test. This brings us to two approaches. The first one concerns the substitution by other tests or an addition of parameters for a narrowed-down scope and the second one deals with the inclusion of a statutory definition accompanied by limited discretion to the court.
A. Substitution or Supplementation by Other Parameters
There can be two approaches when it comes to resolving the complexities mentioned above. First, reliance can be placed on other tests for substituting or supplementing the proximity test. Usage of other tests remains one of the options which have been used in the past to demarcate between preparation and attempt and may still be used as a residual option in case the proximity test assumes a rather uncertain nature. Different cases may warrant different tests. This can be explained by the word of caution regarding the usage of locus poenitentiae test which decides the culpability on whether there was still room left for the accused to withdraw from committing the crime. The apex court held that the locus poenitentiae test cannot be said to have an overall and indiscriminate application, being suited to the facts and circumstances of that particular case. The reasoning given by the court behind expressing concern over this test was potential misuse by the accused to escape culpability. Therefore, the tests differ in their application owing to the diverse circumstances in cases, and reliance on the proximity test must not be more than necessary.
Secondly, two different tests may be applied to confirm the outcome. The benefit of using two tests will function as a verification that the decision taken is correct by lessening reliance on one test. The downside is that in certain cases, it may lead to discrepancies, and this approach may only be viable for a certain category of cases characterised by less complicated factors. An example of this approach can be when equivocality theory was applied to determine the proximity of an act by Sir John Salmond. However, it is also pertinent to note that the application of this approach was not entirely successful as it led to differing results with the equivocality theory assuming the status of a separate and distinct test of equivocality. Therefore, this alternative, if explored, needs to be approached with high caution as the conjunction of tests depends on the similitude and conduciveness they share and may lead to unfavourable consequences and inconvenience.
B. Inclusion of a Statutory Provision
A second approach involves the inclusion of a statutory provision defining an attempt in the Bhartiya Nyaya Sanhita, 2023. Having devised a complete statute for attempts, the Parliament of the United Kingdom, through the Criminal Attempts Act, 1981 has provided a concrete direction to the courts to proceed in cases of attempt extenuating uncertainty. That being said, considerable leeway will have to be provided to the courts since there cannot be a solution that fits in all the cases as the same depends on various factors namely, severity, consequentiality, reasons for commission and subsequent failure, impact etc. No elaboration has been made on what constitutes an attempt in the BNS even for the offences where it has been made specifically punishable. In view of unclear terminology of attempt, the Law Commission in its forty-second report on the Indian Penal Code proposed new sections which define and punish attempt. The definition had three features briefly, acting on intention, proximity with commission and failure due to circumstances beyond its control. However, the Fourteenth Law Commission in its one hundred fifty-sixth report declined these changes by stating two reasons. First, no satisfactory or definitive definition of attempt can be laid down. Second, it does not help in demarcating between preparation and attempt. However, it must be noted that the definition could have indeed proven to be useful for many situations, if not all, since it embodied the doctrine of proximity with other two features refining the scope of its applicability. With the inclusion of both actus reus and mens rea, the definition also nullified the defence of impossibility.[1] However, it is recommended that if such a definition is to be inserted, it should not be made exhaustive and the judiciary should be given a certain degree of discretion. Such discretion must only be exercised in exceptional circumstances wherein the crime committed is so grave or the case exhibits a unique or unprecedented situation where departure from the statutory provision is necessary in the interests of justice.
The Way Forward
It is hard to find precision in criminal law but one can nevertheless try by drawing up assessments. The Supreme Court of Canada in Deutsch v. Queen denied the possibility of devising a satisfactory general criterion for differentiating between preparation and attempt and the application of such a distinction must be led by ‘common sense judgment’. This statement best exemplifies that in such situations where facts and circumstances hold primacy, it is the judicial discretion which must have the most weightage. The Proximity test offers a feasible measure by employing simple reasoning. However, the iffy-margined facet of the proximity test functions as a double-edged sword. The insertion of a provision defining attempt might help in removing doubts, but it must also give way to judicial discretion to ensure the best remedy. The presence of other tests offers a viable recourse if binding to statutory limits is not considered favourable. A double verification or narrowed-down scope of the proximity test seems to be a rather lucrative solution as the same would ensure objectivity. However, this approach requires a rather cautionary stance so as not to result in a more complicated scenario as justice remains the most significant consideration. All the same, the advantages of this flexibility are certainly significant and judicial precedents emerge as a guiding light in cases of puzzlement.
This blog is written by Diya Gaur, 4th Year B.A.LL.B. (Hons.) Student at Rajiv Gandhi National University of Law, Punjab.
[1] P.S.A Pillai, Criminal Law (14th edn, Lexis Nexis 2019) 218.