The Common Law in India - College of Social Sciences and ...

158 The Common Law in Indiaan attempt implies intention in action. " An attemptis an overt act. It differs from the attempted crimein this, that the act has failed to bring the desiredresult." 8 To constitute an attempt at common lawthere has to be an overt act as well as mens rea.Any overt act of preparation committed after theintention to commit the crime has been formed andtended towards the commission of it is an attemptto commit it. In any case, when the connectionbetween the overt act of preparation and the commissionof the crime is clear, the fact that the attempthas been frustrated does not prevent it from creatinga criminal liability. It has been sometimes urged thaton principle an attempt which could not possiblysucceed should not be regarded as a criminal attemptand should not be punishable. It would, however,now appear well established that the impossibility ofperformance does not per se render the attemptharmless. In England it appears that many attemptsto commit crimes are themselves treated as crimes,special punishments being provided for them. When,however, this is not so, an attempt to commit a crimeis treated as a misdemeanour at common law.The Indian Code contains a chapter dealing with" attempts " to commit offences. Under the IndianCode attempts to commit offences are sometimes madecrimes by the provision dealing with the commissionof the offence itself. One may illustrate this by areference to the offence of waging war against theGovernment of India. It is provided that " whoever8 Holmes, Common Law, p. 65.