(a) Has 'Attempt' been defined anywhere in the IPC, 1860 ? What are the various tests for determining, whether an act amounts to…

(a) Is "attempt" defined?

• No. The IPC does not define "attempt".
• Where attempts are punished:
• BNS s.62 (s.511 IPC) punishes attempts to commit offences punishable with imprisonment for life or other imprisonment, where no express provision is made, with up to one-half of the longest term provided for the offence;
• some attempts are substantive offences: attempt to murder (BNS s.109; s.307 IPC), attempt to commit culpable homicide (BNS s.110; s.308 IPC), attempt to commit robbery (s.393 IPC), and attempts included in the definition of an offence, such as waging war (BNS s.147; s.121 IPC);
• Illustration (a) to s.511 IPC (BNS s.62) shows that impossibility is no defence: putting a hand into an empty pocket intending to steal is an attempt. Contrast the older rule in Queen-Empress v Asgarali Pradhania (1933, Calcutta HC).
• The stages of a crime:
• intention;
• preparation, which is generally not punishable, except for offences such as ss.122, 126, 235 and 399 (preparation to commit dacoity);
• attempt;
• commission.

Tests for distinguishing preparation from attempt

• 1. Proximity test:
• the act must be proximate to the intended offence, not remote from it (R v Eagleton (1855));
• English law now asks whether the act is "more than merely preparatory" (Criminal Attempts Act, 1981; R v Gullefer (1990); R v Jones (1990)). In R v Campbell (1991), a man with an imitation gun arrested outside a post office he meant to rob had not yet attempted robbery.
• 2. Locus poenitentiae:
• acts remain preparation so long as the accused can still withdraw voluntarily before the fatal step;
• ***Malkiat Singh v State of Punjab* (1970): a truck carrying paddy was stopped before** it crossed the Punjab border. This was preparation, not an attempt to export, since the accused could still change his mind;
• contrast ***State of MP v Narayan Singh* (1989)**, where a truck carrying fertiliser was stopped at a check-post while crossing the border. This was an attempt.
• 3. Equivocality test: an act is an attempt if it unequivocally shows, on its face, the intention to commit the offence (Salmond; Davey v Lee (1968)). Acts that are consistent with an innocent purpose are only preparation.
• 4. Social danger test: this test considers the seriousness of the harm and how close the danger is. It is used mainly by writers, and courts treat it as a supporting factor.
• Indian approach: the act must be done "towards the commission" of the offence:
• ***Abhayanand Mishra v State of Bihar* (1961): a person who applied to Patna University for permission to sit an M.A. exam, with false certificates, and received an admit card, had attempted to cheat. An attempt begins once the accused, having completed preparation, does an act towards commission. That act need not be the penultimate act**;
• ***Om Prakash v State of Punjab* (1961):** the deliberate starvation of a wife over a period was attempt to murder;
• ***State of Maharashtra v Mohd. Yakub* (1980): smugglers carrying silver to a creek at night, with the boat's engine heard starting, had attempted** to export. Sarkaria J described attempt as the "direct movement towards the commission after the preparations are made";
• ***Koppula Venkat Rao v State of AP* (2004) and *Aman Kumar v State of Haryana* (2004):** in attempted rape, the accused must have gone beyond preparation, showing a determination to gratify lust at all events.
• Conclusion: no single test is decisive. Courts apply these tests together to the facts, focusing on proximity to the offence and the accused's unequivocal intention.

(b) (i) Kidnapping and abduction

• Provisions:
• Kidnapping: BNS s.137 (ss.359–361 IPC) defines two kinds: from India (s.360 IPC) and from lawful guardianship (s.361 IPC).
• Abduction: BNS s.138 (s.362 IPC).
• Victim:
• Kidnapping from guardianship: a minor (under the IPC, a male under 16 or female under 18; under the BNS, any child under 18) or a person of unsound mind.
• Abduction: any person, of any age.
• Means:
• Kidnapping: taking or enticing. The means are immaterial.
• Abduction: force, or deceitful means.
• Consent:
• Kidnapping: the victim's consent is irrelevant; the guardian's consent matters.
• Abduction: free consent of the person abducted, if given, negatives the offence.
• Nature of the offence:
• Kidnapping: complete as soon as the minor is taken out of the guardian's keeping. It is not a continuing offence.
• Abduction: a continuing act, which continues so long as the person is moved from place to place.
• Is it an offence by itself?
• Kidnapping: yes, punishable under BNS s.137(2) (s.363 IPC).
• Abduction: not by itself. It is punishable only with a specified intent (BNS ss.140–143; ss.364–369 IPC).
• Case law: ***S. Varadarajan v State of Madras* (1965): a girl nearly 18 who voluntarily left** her guardian to join the accused was not "taken" by him.

(ii) Riot and affray

• Provisions:
• Riot: BNS s.191 (ss.146–147 IPC).
• Affray: BNS s.194 (ss.159–160 IPC).
• Number of persons:
• Riot: five or more.
• Affray: two or more.
• Requirement of an unlawful assembly:
• Riot: it must be an unlawful assembly with a common object, and force or violence must be used in prosecution of it.
• Affray: there is no unlawful assembly or common object. The persons simply fight.
• Place:
• Riot: any place, public or private.
• Affray: a public place is essential.
• Who is liable:
• Riot: every member of the assembly is guilty, even if he did not himself use force.
• Affray: only the persons actually fighting.
• Seriousness:
• Riot: graver (up to 2 years; 3 years if armed with a deadly weapon under s.148).
• Affray: minor (up to 1 month).
• Interest protected:
• Riot: public tranquillity and public order.
• Affray: the public peace, since the fighting disturbs the public.

(iii) Criminal breach of trust and dishonest misappropriation of property

• Provisions:
• Criminal breach of trust (CBT): BNS s.316 (ss.405–406 IPC).
• Dishonest misappropriation: BNS s.314 (s.403 IPC).
• How the property comes to the accused:
• CBT: by entrustment, or dominion over it, by the owner or someone on his behalf.
• Dishonest misappropriation: usually innocently, for example by finding it, and without any entrustment.
• The relationship:
• CBT: a fiduciary relationship exists.
• Dishonest misappropriation: no fiduciary relationship.
• Type of property:
• CBT: any property, movable or immovable.
• Dishonest misappropriation: movable property only.
• The act:
• CBT: dishonest misappropriation, conversion, use or disposal in violation of a direction of law or of a contract.
• Dishonest misappropriation: dishonest misappropriation or conversion to the accused's own use.
• Aggravated forms:
• CBT: ss.407–409, covering carriers, clerks, public servants, bankers and agents.
• Dishonest misappropriation: s.404, covering the property of a deceased person.
• Case law: the dividing line is entrustment (Velji Raghavji Patel v State of Maharashtra (1965)). Both offences require dishonest intention.

(c) Kinds of damages in tort

• Nominal damages:
• these vindicate a right where there is no actual loss, in torts actionable per se;
• Ashby v White (1703): a voter wrongly refused his vote;
• Constantine v Imperial Hotels (1944): a cricketer was refused a room and awarded 5 guineas.
• Contemptuous damages: a trivial sum, such as a halfpenny, where the claim is technically made out but the plaintiff's conduct deserves disapproval (Dering v Uris (1964)).
• Compensatory damages: these restore the plaintiff, so far as money can, to the pre-tort position (restitutio in integrum). They take two forms:
• General damages: presumed or non-pecuniary losses, such as pain and suffering, loss of amenities, and injury to reputation;
• Special damages: specific pecuniary losses that must be pleaded and proved, such as medical bills and lost earnings to date.
• Aggravated damages: additional compensation for injury to feelings, humiliation or distress caused by the manner of the wrong.
• Exemplary (punitive) damages:
• these punish and deter;
• they are awarded in the categories in Rookes v Barnard (1964): oppressive, arbitrary or unconstitutional action by government servants; conduct calculated to make a profit; and where statute authorises them. This was affirmed in Cassell & Co v Broome (1972);
• in India they have been awarded for State lawlessness and pollution (Lucknow Development Authority v M.K. Gupta (1994); M.C. Mehta v Kamal Nath (2000)).
• Constitutional compensation: a public-law remedy under Arts 32 and 226 for violation of Fundamental Rights (Rudul Sah; Nilabati Behera).

Prospective damages

• Meaning: damages for future loss that has not yet occurred but will, or is likely to, result from the tort.
• The "once and for all" rule: damages for a single cause of action are assessed once, covering past and future loss (Fitter v Veal (1701)). The court must therefore estimate future consequences at the trial.
• When they are awarded:
• personal injury and death:
• loss of future earnings and earning capacity;
• future medical and nursing costs;
• future pain and loss of amenities;
• loss of dependency, which Indian courts calculate by the multiplier method, including future prospects (Sarla Verma v DTC (2009); National Insurance v Pranay Sethi (2017); Raj Kumar v Ajay Kumar (2011));
• injury to property or business with a continuing impact on future income;
• permanent injuries or a permanent nuisance, where an injunction is refused and damages are given in lieu.
• Conditions:
• the future loss must be reasonably certain or probable, not speculative;
• it must flow from the defendant's wrong and not be too remote;
• it must be capable of reasonable estimation, with discounts for contingencies and for receiving a lump sum in advance.
• Exception: continuing torts. For continuing torts, such as continuing trespass or nuisance, or where each fresh damage gives a fresh cause of action (Darley Main Colliery v Mitchell (1886), on subsidence), the plaintiff sues as damage occurs rather than claiming prospective damages. Quia timet injunctions may prevent threatened harm.