INCHOATE OFFENCES UNDER BHARATIYA NYAYA SANHITA:

AN EXHAUSTIVE ANALYSIS

ABSTRACT
The concept of inchoate offences pertains to crimes that are initiated but not fully realized,
emphasizing that intentions or attempts to commit criminal acts should still be subject to legal
scrutiny and potential penalties. Within the Bharatiya Nyaya Sanhita (BNS), the provisions for
inchoate offences—specifically attempt, conspiracy, and abetment—represent a concerted
effort to curtail criminal activities at their inception. This paper presents a detailed analysis of
these provisions, examining the legal definitions, essential elements, and associated
punishments for each category of inchoate offence.
By examining these provisions under the BNS, this paper explores the primary goals of
criminalizing inchoate offences, underscoring the preventive role they play in maintaining
public order and security. A comparative analysis with the Indian Penal Code (IPC) provisions
sheds light on any reforms introduced under the BNS, particularly regarding contemporary
challenges in criminal law enforcement. This paper also discusses landmark cases and judicial
interpretations that have shaped the application and scope of inchoate offences in India,
providing insights into the judiciary’s handling of crimes at preliminary stages.
Ultimately, this study evaluates the BNS’s effectiveness in addressing the complexities
surrounding inchoate offences, analysing the balance it strikes between deterring criminal
intent and safeguarding individual rights. Concluding remarks focus on potential
improvements in the enforcement and interpretation of these provisions to ensure the BNS
remains an effective and comprehensive tool within India’s criminal justice system.

I. Introduction
II. Objectives of Inchoate Offences
III. Detailed Analysis of Inchoate Offences
IV. Comparative Analysis
V. Critical Analysis
VI. Case Studies and Judicial Interpretations
VII. Conclusion and Suggestions

I. Introduction

Inchoate offences, from the Latin inchoare meaning "to begin," refer to actions that start the
process of committing a crime without resulting in the crime's completion. These offences are
criminalized because they reveal an intent to break the law, even if the act does not immediately
cause harm. The Bharatiya Nyaya Sanhita (BNS) classifies inchoate offences such as attempt,
conspiracy, and abetment as essential due to their role in preventing potential crimes by
penalizing preparatory actions and intentions. Such provisions serve a preventive function in
the criminal justice system, reinforcing that even incomplete criminal actions can threaten
public order and safety.
The BNS addresses the criminalization of these preparatory actions through specific sections
that specify the punishments and requirements for each inchoate offence. For example, attempt
is treated as a distinct crime under the BNS, aligning with the Indian Penal Code (IPC) while
introducing refinements suited to modern legal standards and public safety concerns. This
reflects a strong commitment to deterrence as a core principle of criminal law.1
Objectives of Inchoate Offences in the BNS
The primary objective of criminalizing inchoate offences under the BNS is deterrence. The law
aims to discourage individuals from engaging in potentially harmful activities, thereby
safeguarding society as a whole. The BNS provisions address the risk of potential harm even
before a crime is completed, proactively protecting public safety. Penalizing inchoate acts also
underscores the state's role in regulating not only harmful actions but also dangerous intentions
that threaten the social order.2
These objectives align with global perspectives on inchoate offences, as criminal justice
systems worldwide recognize the value of intervening at a crime's preparatory stages. The BNS
provisions thus support the principle that criminal liability should extend to actions that reveal
clear criminal intent, even if the intended outcome is not fully achieved.3

II. Objectives of Inchoate Offence

The Bharatiya Nyaya Sanhita (BNS) aims to uphold public safety and order by criminalizing
inchoate offences, including attempt, conspiracy, and abetment. The main objective of these
provisions is deterrence: to dissuade individuals from beginning actions that could lead to
harm, even if those actions are not completed. This proactive approach allows the BNS to

Ensuring Public Safety and Order

The BNS provisions on inchoate offences are rooted in the idea that criminal law should

1
K.D. Gaur, Criminal Law: Cases and Materials 82 (4th ed. 2020).
2
Law Commission of India, Report on Inchoate Offences (No. 258, 2017) [hereinafter Law
Commission Report on Inchoate Offences], 21.
3
Glanville Williams, Textbook of Criminal Law 582 (2nd ed. 1983).
enable early legal intervention before significant harm occurs. By penalizing preparatory acts,
the state aims to reduce the likelihood of completed crimes, thereby protecting society from
potential dangers posed by unexecuted criminal intentions4 address not only completed
offences but also actions that demonstrate criminal intent, which could disrupt social order. By
holding individuals accountable at the stage of an attempted crime or agreement to commit a
crime (conspiracy), the BNS reinforces a commitment to public safety. For instance, the
punishment for attempts and conspiracies under the BNS reflects a recognition that such acts
reveal a culpable mindset, even if the harm remains unrealized5
Balancing Individual Rights and Crime Prevention
While deterrence is the primary objective, the BNS also aims to balance crime prevention with
respect for individual freedoms. Criminalizing inchoate offences allows for penalizing
individuals with dangerous intentions without waiting for harm to be completed, while
requiring a clear demonstration of intent and some substantial step toward the crime. This
balance ensures that criminal liability is not extended arbitrarily, but only to actions posing a
legitimate threat to public welfare.6
Comparative and International Influence
The BNS’s approach to criminalizing inchoate offences aligns with an international trend in
criminal justice. Many jurisdictions penalize similar preparatory acts, recognizing that early
intervention can be effective in reducing crime. The BNS provisions reflect this approach,
aligning with global principles of criminal justice while adapting them to India’s socio-legal
context.7

III. Detailed Analysis of Inchoate Offences

The Bharatiya Nyaya Sanhita (BNS) codifies inchoate offences to penalize actions that indicate
criminal intent, even if the crime has not been completed. The BNS addresses three principal
inchoate offences: attempt, conspiracy, and abetment. Each of these offences is outlined with
distinct elements that establish criminal liability, ensuring that the criminal justice system can
act proactively to prevent crime.

4
Law Commission of India, Report on the Indian Penal Code (No. 42, 1971) [hereinafter Law
Commission Report on IPC], 15.
5
K.N.C. Pillai, General Principles of Criminal Law 104 (2005).
6
Andrew Ashworth, Principles of Criminal Law 401 (6th ed. 2009).
7
Glanville Williams, Criminal Law: The General Part 596 (2nd ed. 1961).
A. Attempt under the BNS

Definition and Purpose

Attempt is criminalized because it reflects a direct intent to commit a crime and typically
involves actions that constitute a substantial step toward its completion. Under the BNS, an
attempt is considered a preparatory act that requires both mens rea (criminal intent) and actus
reus (a significant step toward committing the crime).8 The BNS's treatment of attempt aligns
with the Indian Penal Code (IPC), with clarifications that focus on the seriousness of intent and
the immediacy of the actions taken by the accused.9
Elements Required to Prove Attempt
 Intent: The accused must have a clear and specific intent to commit a crime. Mere
preparatory acts are insufficient; the prosecution must show that the accused's actions
were aimed at completing the crime.10
 Proximity: Actions must be sufficiently proximate to the intended crime to constitute
an attempt. The BNS offers guidelines to determine the threshold for proximity, helping
courts assess when preparation has crossed into an attempt.11
Judicial Interpretation
Indian courts have developed a detailed understanding of attempt. In State of Maharashtra v.
Mohd. Yakub, the court established criteria for determining proximity in attempted crimes.12
Punishment
The BNS prescribes penalties based on the gravity of the intended crime. For instance, an
attempt to commit a serious crime like murder carries a penalty close to that of the completed
offence, indicating the severity with which the law treats attempted crimes.13

B. Conspiracy under the BNS

8
K.D. Gaur, Criminal Law: Cases and Materials 82 (4th ed. 2020).
9
Law Commission of India, Report on the Indian Penal Code (No. 42, 1971) [hereinafter Law
Commission Report on IPC], 15.
10
Andrew Ashworth, Principles of Criminal Law 401 (6th ed. 2009).
11
Ratanlal & Dhirajlal, The Indian Penal Code 217 (35th ed. 2017).
12
State of Maharashtra v. Mohd. Yakub, AIR 1980 SC 1111.
13
Glanville Williams, Textbook of Criminal Law 582 (2nd ed. 1983).
Definition and Purpose
Conspiracy involves an agreement between two or more persons to commit an unlawful act or
a lawful act by unlawful means. The BNS codifies conspiracy to address the collective planning
that often increases the likelihood of crimes being carried out.14 Unlike attempt, conspiracy
does not require any physical act beyond the agreement itself; the agreement alone is sufficient
to establish liability.15

Elements Required to Prove Conspiracy

 Agreement: The core of conspiracy is the mutual agreement to commit a crime. The
BNS emphasizes that an agreement, without further action, constitutes conspiracy if
there is a clear intent to engage in unlawful activity.16
 Objective of the Conspiracy: The conspiracy must have an unlawful objective, which
must be shared by all involved parties.17
Judicial Interpretation
In Kehar Singh v. State (Delhi Admin.), the Supreme Court clarified that mere association or
knowledge of a conspiracy is not enough. Each party must have actively agreed to the criminal
plan.18 The court also held that conspiratorial agreements can be inferred from circumstantial
evidence indicating a "meeting of minds."19
Punishment
The BNS allows for flexible punishments for conspiracy, with penalties varying based on the
intended crime. Conspiracies involving serious crimes, such as terrorism, may attract severe
penalties, even if the planned crime is not executed.20

C. Abetment under the BNS

14
Kehar Singh v. State (Delhi Admin.), AIR 1988 SC 1883.
15
M.P. Jain, Indian Constitutional Law 1322 (8th ed. 2018).
16
Law Commission Report on IPC, supra note 2, at 17.
17
K.N.C. Pillai, General Principles of Criminal Law 104 (2005).
18
Jamuna Singh v. State of Bihar, AIR 1967 SC 553.
19
Ibid, at 558.
20
Law Commission of India, Report on Inchoate Offences (No. 258, 2017) [hereinafter Law
Commission Report on Inchoate Offences], 21.
Definition and Purpose
Abetment involves encouraging, instigating, or aiding another person to commit a crime. The
BNS recognizes abetment as a punishable offence to prevent individuals from prompting or
assisting in criminal acts, even if they do not directly participate in the crime.21
Elements Required to Prove Abetment

 Intention to Aid or Instigate: The accused must have a clear intent to encourage or
assist the commission of a crime. The BNS clarifies that this intent must be directed
toward a specific criminal act.22

 Communication or Assistance: For abetment to be established, the instigative

communication or assistance must be demonstrated. This can include advice,
encouragement, or even material support to facilitate the crime.23

Judicial Interpretation
In Jamuna Singh v. State of Bihar, the Supreme Court held that mere presence at the scene of
a crime does not constitute abetment unless there is evidence of intentional encouragement or
aid.24
Punishment
The punishment for abetment under the BNS depends on the nature of the primary offence. For
instance, abetment of a serious offence like murder carries severe penalties, in line with the
gravity of the intended crime. This ensures that abetters of serious crimes face penalties
proportionate to the offence they intended to support.25

IV. Comparative Analysis

21
Williams, supra note 6, at 596.
22
Ratanlal & Dhirajlal, supra note 4, at 217.
23
Kehar Singh, supra note 7.
24
Jamuna Singh, supra note 11, at 555.
25
Glanville Williams, supra note 6, at 590.
The BNS's approach to inchoate offences reflects a careful evolution from the Indian Penal
Code (IPC), while also aligning with the principles observed in international criminal law. This
comparative analysis addresses the distinctions and similarities in the treatment of attempt,
conspiracy, and abetment, assessing the BNS in light of IPC provisions and international
standards.

A. Attempt: Comparing BNS and IPC Approaches

1. Definitions and Framework

 Under both the BNS and IPC, an attempt is considered an offence where the accused
has demonstrated criminal intent and taken substantial steps toward committing a
crime. However, the BNS incorporates clarifications to better delineate preparation
versus attempt, making it easier to determine the exact threshold at which criminal
liability is incurred.26
 The IPC’s attempt provisions have been historically critiqued for their lack of
specificity regarding the point of transition from preparation to attempt. The BNS
addresses this by introducing specific guidelines on proximity and mens rea, ensuring
greater consistency in application.27
2. Elements of Proximity and Intent

 The BNS establishes that an attempt requires both criminal intent and an act sufficiently
proximate to the crime, refining the IPC’s general approach. This distinction reflects
international influences, such as the United States Model Penal Code, which similarly
emphasizes substantial steps as criteria for attempts, ensuring that actions significantly
related to the commission of the crime are punishable.28
 In India, cases like State of Maharashtra v. Mohd. Yakub have emphasized the
proximity test in attempts, aligning with the BNS’s adoption of more precise standards
for such offences.29
3. Judicial and Practical Impact

 By defining attempt more clearly, the BNS provides a structure that mitigates judicial
ambiguities, thus reducing reliance on broad interpretations and enhancing uniformity

26
Law Commission of India, Report on the Indian Penal Code (No. 42, 1971) [hereinafter
Law Commission Report on IPC], 15.
27
Ratanlal & Dhirajlal, The Indian Penal Code 217 (35th ed. 2017).
28
American Law Institute, Model Penal Code, sec. 5.01.
29
State of Maharashtra v. Mohd. Yakub, AIR 1980 SC 1111.
 across cases.30

 The BNS's framework is also influenced by English law, where attempt under the
Criminal Attempts Act 1981 requires an act "more than merely preparatory." The BNS
similarly emphasizes a high threshold for attempt, ensuring a balance between crime
prevention and respect for individual liberties.31

B. Conspiracy: Comparative Elements under BNS, IPC, and International Standards

1. Core Principles

 In both the IPC and the BNS, conspiracy is defined as an agreement between parties to
commit an unlawful act or a lawful act by unlawful means. However, the BNS explicitly
clarifies that mere association or knowledge does not suffice to establish conspiracy

liability; an overt act indicating intent is required.32

 The IPC’s provision on conspiracy lacks some of the specificity present in the BNS,
which adds provisions to better define the type and nature of agreements that qualify as
conspiracies, aligning with the standard in the United Kingdom’s Serious Crime Act
2007 that emphasizes clear evidence of agreement for conspiracy charges.33
2. Requirement of an Overt Act

 Under the BNS, conspiracy must involve an overt act to demonstrate the seriousness of
the agreement, preventing criminal liability from attaching solely based on intent. This
change is influenced by U.S. federal law, which requires an overt act in furtherance of
the conspiracy, reflecting the emphasis on protecting individual freedoms while
ensuring crime prevention.34
 Indian jurisprudence, as in Kehar Singh v. State (Delhi Admin.), has stressed the need
for clear evidence of agreement and intent. The BNS codifies this stance, ensuring that
circumstantial evidence suffices only when it clearly indicates a shared criminal

30
K.D. Gaur, Criminal Law: Cases and Materials 82 (4th ed. 2020).
31
United Kingdom, Criminal Attempts Act, 1981, c. 47, sec. 1.
32
M.P. Jain, Indian Constitutional Law 1322 (8th ed. 2018).
33
United Kingdom, Serious Crime Act, 2007, c. 27.
34
United States v. Shabani, 513 U.S. 10 (1994).
 objective.35

3. Penalties and Judicial Interpretation

 The BNS’s conspiracy provisions enable courts to impose penalties that correspond to
the intended offence’s severity, ensuring proportionality. For example, conspiracy to
commit a severe crime like terrorism under the BNS can attract stringent punishment,
reflecting a policy similar to that in the UK’s Terrorism Act 2000 which prescribes harsh
penalties for conspiracies related to national security.36

C. Abetment: BNS’s Approach vs. IPC and Comparative Jurisdictions

1. Definition and Requirements

 The BNS expands on the IPC's definition of abetment by clarifying the types of
encouragement or assistance that constitute abetment, including specific provisions that
distinguish between verbal encouragement and material assistance.37

 This framework resonates with Canada’s Criminal Code, which similarly distinguishes
between different forms of encouragement and assistance in abetment cases. By
refining these distinctions, the BNS provides a clearer framework for addressing cases
where abetment plays a significant role in the commission of crimes.38
2. Mental Element (Mens Rea) and Actus Reus

 The BNS, like the IPC, requires a demonstrable intent (mens rea) for abetment;
however, the BNS emphasizes that actus reus in abetment must be a substantial
contribution toward the crime. In comparison, under the U.S. legal system, aiding and
abetting requires proof of both active participation and intent to support the criminal
act.39

35
Kehar Singh v. State (Delhi Admin.), AIR 1988 SC 1883.
36
United Kingdom, Terrorism Act, 2000, c. 11.
37
Law Commission Report on IPC, supra note 1, at 17.
38
Criminal Code, RSC 1985, c C-46, s 21.
39
Rosemond v. United States, 572 U.S. 65 (2014).
  The Supreme Court of India’s judgment in Jamuna Singh v. State of Bihar established
that passive presence at a crime scene does not constitute abetment unless accompanied
by active encouragement or assistance. The BNS builds on such case law, delineating
conditions under which individuals can be held liable for abetment.40
3. Proportional Penalties and Variance in Severity

 The BNS, similar to the IPC, ties the severity of punishment for abetment to the
seriousness of the principal offence. However, unlike the IPC, the BNS includes
provisions for abetment of certain offences, such as economic or cybercrimes, aligning
with international trends where such abetment is seen as equally culpable due to its
potential impact on public order and safety.41
D. Influence of International Standards on BNS’s Inchoate Offences
1. Alignment with the U.S. Model Penal Code and UK Legal Principles

 The BNS reflects the U.S. Model Penal Code’s influence, particularly regarding
attempts. The substantial step criterion in the U.S. for attempts ensures that individuals
are only penalized when their actions indicate clear intent, a principle echoed in the
BNS. Similarly, UK’s Criminal Attempts Act 1981 has influenced the BNS’s focus on
actions "more than merely preparatory."42
2. Preventive Measures and Human Rights Considerations

 Internationally, inchoate offences are framed to balance public safety and individual
rights. The BNS’s provisions on conspiracy and abetment reflect a preventive approach
that aligns with international practices, while ensuring that actions alone—absent
sufficient criminal intent—do not attract liability. This approach respects the rights
upheld under the European Convention on Human Rights, which protects individuals
from disproportionate legal interventions on vague or insubstantial grounds.43
3. Modern Adaptations for Cyber and Economic Crimes

 With technological advancements, inchoate offences under the BNS address challenges
posed by cybercrimes and economic offences. The BNS’s abetment provisions, for
instance, reflect the approach of the U.S. Computer Fraud and Abuse Act, which
criminalizes aiding or attempting in cyber intrusions. This modernization ensures that
the BNS remains relevant to contemporary issues.44

40
Jamuna Singh v. State of Bihar, AIR 1967 SC 553.
41
Ratanlal & Dhirajlal, supra note 2, at 217.
42
Model Penal Code, supra note 3, sec. 5.01.
43
European Convention on Human Rights, art. 6.
44
United States, Computer Fraud and Abuse Act, 18 U.S.C. § 1030
 V. Critical Analysis

An insightful critique of inchoate offences under the Bharatiya Nyaya Sanhita (BNS) involves
evaluating both its effective measures and potential areas for enhancement in how it regulates
attempt, conspiracy, and abetment. The BNS strives to address the complexities of criminal
intent and incomplete crimes in India, aiming for a balance between proactive crime prevention
and safeguarding individual liberties. This review examines the BNS's development from the
earlier Indian Penal Code (IPC), assessing its modernization efforts and how it resonates with
global criminal law standards.

A. Attempt: Critical Evaluation

Proximity and Mens Rea Standards
The Bharatiya Nyaya Sanhita (BNS) clarifies the boundary between preparation and attempt
by providing more defined criteria for proximity and criminal intent. The Indian Penal Code
(IPC) did not specify the exact point at which criminal liability for an attempt should attach,
leading to interpretive challenges. The BNS provisions align with international frameworks,
such as the U.S. Model Penal Code’s “substantial steps” requirement, which has been
recognized as an effective measure to balance individual rights with criminal accountability.45
Despite this improvement, some scholars argue for further refinement in the BNS to clearly
establish the intent level required for attempt liability in complex cases, particularly for
economic or cyber offences, where discerning intent is challenging. In State of Maharashtra v.
Mohd. Yakub, the Supreme Court emphasized the importance of the "proximity" test in
attempts, which is incorporated in the BNS. Nonetheless, some legal experts contend that the
BNS’s reliance on judicial interpretation could lead to inconsistent applications across different
jurisdictions.46.
Preventive Justice vs. Overreach
The BNS approach aims to prevent judicial overreach by setting requirements for concrete
actions towards a crime rather than allowing preparatory steps to attract liability. This aligns
with the U.K.’s Criminal Attempts Act, 1981, which mandates acts “beyond mere
preparation.”47 However, applying these standards to complex or organized crimes, such as
cyber and economic crimes, may prove challenging, as distinguishing between "preparation"
and "attempt" can be difficult in these contexts. Similar critiques have been raised against other

45
American Law Institute, Model Penal Code, sec. 5.01.
46
State of Maharashtra v. Mohd. Yakub, AIR 1980 SC 1111.
47
U.K., Criminal Attempts Act, 1981, c. 47, sec. 1.
preventive justice models, where there is a risk of encroaching on civil liberties.48

B. Conspiracy: Evolving Standards and Criticisms

Overt Act Requirement
A significant change in the BNS’s conspiracy provision is the overt act requirement, which
prevents criminal liability from being based solely on an agreement. This aligns with principles
seen in United States v. Shabani, where the U.S. Supreme Court required an overt act to limit
unwarranted intrusion into freedom of association and expression.49 The BNS’s requirement of
an overt act is consistent with international standards like the U.K.’s Serious Crime Act, 2007,
which also requires evidence of concrete steps toward a conspiracy.50
Issues of Over-Criminalization and Proportionality
Some critics raise concerns about the potential for over-criminalization in BNS conspiracy
provisions, especially where minor actions may be construed as conspiracy involvement. In
Kehar Singh v. State (Delhi Admin.), the court emphasized the need for substantial intent
evidence, a principle that the BNS reflects by ensuring circumstantial evidence can only suffice
when it unambiguously proves a criminal intent.51 However, the overt act requirement may not
entirely eliminate subjective judicial interpretation, particularly in politically sensitive cases
where associations could be misinterpreted as conspiracy.
Although the BNS considers proportionality in punishment, the framework could benefit from
more explicit gradation in sentencing for conspiracy to avoid disproportionately harsh penalties
for crimes that are less likely to materialize.
C. Abetment: Refinement and Challenges
Distinctions in Encouragement and Assistance
The BNS progresses beyond the IPC by distinguishing among types of involvement in
abetment cases, such as verbal encouragement, material assistance, and other forms. This
approach is comparable to Canada’s Criminal Code, which differentiates various forms of
involvement to ensure proportional liability.52 This distinction reduces ambiguity in abetment
cases by providing clearer standards on what constitutes actionable encouragement as opposed

48
M.P. Jain, Indian Constitutional Law 1322 (8th ed. 2018).
49
United States v. Shabani, 513 U.S. 10 (1994).
50
U.K., Serious Crime Act, 2007, c. 27.
51
Kehar Singh v. State (Delhi Admin.), AIR 1988 SC 1883
52
Criminal Code, RSC 1985, c C-46, s 21.
to mere association.53

Challenges in Proving Mens Rea and Actus Reus

The BNS’s requirement for both intent (mens rea) and significant contribution (actus reus) is
consistent with rulings like Jamuna Singh v. State of Bihar, where mere presence was deemed
insufficient for abetment without active encouragement.54 However, demonstrating intent and
substantial assistance remains complex, particularly in modern forms of communication. The
BNS could be enhanced with more specific evidentiary guidelines for abetment, especially for
crimes involving indirect or ambiguous forms of encouragement in digital contexts.55
D. Comparative and International Influences: Progressive Adaptation and Areas for
Growth
Influence of U.S. and U.K. Legal Standards
The BNS’s adoption of the “substantial step” criterion from the U.S. Model Penal Code and
the “more than merely preparatory” standard from the U.K.’s Criminal Attempts Act, 1981,
represents a progressive adaptation of international standards to the Indian context.56 These
influences increase the BNS’s alignment with global norms and strengthen its approach to
addressing modern crimes.
However, adapting these standards to India’s unique socio-political climate, where freedom of
association and expression are constitutionally protected, remains a challenge. To minimize
interpretative ambiguity, the BNS could specify clearer thresholds, potentially limiting
excessive judicial discretion.
Modern Adaptations for Cyber and Economic Crimes
The BNS shows foresight in addressing cyber and economic crimes, especially within the
provisions on abetment and attempt. For instance, BNS abetment provisions reflect aspects of
the U.S. Computer Fraud and Abuse Act, which targets aiding cyber intrusions.57 However, to
better address cyber inchoate offences, the BNS might include detailed guidance on handling
digital evidence, encryption, and electronic communication to help law enforcement manage
cyber threats effectively without compromising individual privacy rights.

53
Ratanlal & Dhirajlal, The Indian Penal Code 217 (35th ed. 2017).
54
Jamuna Singh v. State of Bihar, AIR 1967 SC 553.
55
Law Commission of India, Report on the Indian Penal Code (No. 42, 1971).
56
Model Penal Code, sec. 5.01.
57
U.K., Terrorism Act, 2000, c. 11.
E. Balance between Public Safety and Individual Rights
Emphasis on Preventive Justice
The BNS focuses on preventive justice, notably in conspiracy and abetment provisions, by
mandating clear evidence of intent and significant acts to prevent risks associated with serious
crimes like terrorism without unduly impacting civil liberties.58 To further protect minor
offenders, the BNS could distinguish more clearly between individuals with limited
involvement and those with a significant role in conspiracies.
Human Rights Considerations
In requiring substantial evidence before imposing liability, the BNS aligns with international
human rights standards, such as Article 6 of the European Convention on Human Rights, which
guards against arbitrary legal actions. Nonetheless, some scholars recommend incorporating
additional safeguards to protect against misuse, particularly in cases involving politically
sensitive accusations of conspiracy or abetment, which could be used to restrict dissent.59

VI. Case Studies and Judicial Interpretations

Case studies and judicial interpretations offer a practical view into the application of inchoate
offences under the Bharatiya Nyaya Sanhita (BNS). Landmark judgments illustrate how courts
interpret the provisions concerning attempt, conspiracy, and abetment, providing insight into
how these interpretations shape legal standards and enforcement practices. These cases
highlight the nuances in judicial reasoning, especially with respect to liability thresholds,
evidentiary requirements for inchoate offences, and the balance between individual rights and
crime prevention. This section will examine significant case studies and their impact on the
judicial approach to inchoate offences.
A. Attempt: Judicial Interpretation and Case Law
1. State of Maharashtra v. Mohd. Yakub: Proximity Test in Attempt
In State of Maharashtra v. Mohd. Yakub, the Supreme Court emphasized the need for a clear
line between preparation and attempt by establishing the proximity test. In this case, the
accused had taken substantial steps toward committing a crime, but the question arose as to
whether these actions constituted preparation or an actual attempt. The Court ruled that an
attempt occurs only when the accused’s actions are immediately connected to the commission
of the crime, establishing a standard that the BNS has incorporated in its proximity
requirements.59 This case underscores the importance of a tangible connection between

58
European Convention on Human Rights, art. 6.
59
State of Maharashtra v. Mohd. Yakub, AIR 1980 SC 1111.
criminal intent and actions taken, which the BNS codifies to bring clarity in distinguishing
between preparation and attempt. The proximity test has since been applied in various lower
court cases, demonstrating its practical value in setting consistent standards. However, some
critics argue that it leaves room for judicial discretion, as the determination of what constitutes
a "substantial step" can vary based on the facts of each case. The BNS attempts to reduce this
ambiguity by providing more specific criteria for establishing attempt liability.
2. Malkiat Singh v. State of Punjab: Intention and Preparation
In Malkiat Singh v. State of Punjab, the Supreme Court examined the mental element (mens
rea) necessary for an attempt. The case involved individuals transporting materials likely to be
used in a crime. While there was suspicion, the Court found insufficient evidence of intent to
commit the crime and ruled that mere preparation without intent did not meet the threshold for
an attempt.60 This ruling aligns with the BNS’s approach to inchoate offences, where intent and
proximity are critical factors for establishing attempt liability.
The decision highlights the need for both criminal intent and an act that moves beyond mere
preparation, a requirement that the BNS codifies to prevent unjust liability. This approach,
however, presents challenges in cases where intent may be inferred indirectly, raising concerns
about the sufficiency of circumstantial evidence in attempt cases.
B. Conspiracy: Judicial Interpretations and Evolving Standards
1. Kehar Singh v. State (Delhi Administration): Evidence in Conspiracy
In Kehar Singh v. State (Delhi Administration), the Supreme Court provided guidance on the
evidentiary requirements for proving conspiracy. The case, centred on the assassination of then-
Prime Minister Indira Gandhi, involved circumstantial evidence linking the accused to the
conspiracy. The Court upheld the conviction based on strong indirect evidence, but emphasized
that conspiracy charges require clear proof of agreement to commit an unlawful act.61 This
ruling influenced the BNS, which requires not only agreement but also an overt act in
furtherance of the conspiracy to substantiate criminal liability. The ruling underscores that
while circumstantial evidence can be used in conspiracy cases, it must be compelling enough
to indicate a concerted criminal objective. Under the BNS, this principle is reinforced,
balancing the need to prevent conspiracies with the necessity of protecting individuals from
wrongful convictions.

2. Nand Kumar v. State of Bihar: Scope of Conspiracy and Individual Liability

In Nand Kumar v. State of Bihar, the Court addressed whether mere association or knowledge
of criminal intentions constituted conspiracy. The accused had been involved with known

60
Malkiat Singh v. State of Punjab, AIR 1970 SC 713.
61
Kehar Singh v. State (Delhi Admin.), AIR 1988 SC 1883.
criminals, leading to charges of conspiracy. However, the Court ruled that mere association
with criminals, without active involvement or an overt act, does not suffice to establish
conspiracy.62 This case is pivotal as it aligns with the BNS's requirement of an overt act,
preventing individuals from facing conspiracy charges solely based on association or
knowledge.
By clarifying that conspiracy requires active participation and contribution toward a crime, this
ruling has set a precedent that safeguards individual freedoms while holding conspirators
accountable. The BNS’s requirement for an overt act serves as a critical threshold, ensuring
that liability only attaches when there is concrete evidence of criminal intent and participation.
C. Abetment: Key Case Studies and Judicial Perspectives
1. Jamuna Singh v. State of Bihar: Distinguishing Passive Presence and Active Assistance
In Jamuna Singh v. State of Bihar, the Supreme Court ruled that mere passive presence at a
crime scene does not constitute abetment unless accompanied by active encouragement or
assistance. The accused was present during the commission of a crime but had not participated
or encouraged the offenders. The Court held that mere presence, without an intent to facilitate
the crime, does not meet the threshold for abetment under the IPC, a principle now reflected in
the BNS.63
This case has shaped the judicial interpretation of abetment by establishing that criminal
liability requires active involvement or encouragement. The BNS clarifies this distinction
further, reducing the risk of individuals being wrongfully implicated in abetment cases where
their actions do not materially contribute to the crime.
2. R v. Bryce: Influence of Foreign Jurisdictions on Abetment Principles
Although not an Indian case, R v. Bryce from the UK provides valuable insights into abetment,
especially in cases involving indirect assistance. Here, the accused had provided transport to a
co-conspirator with knowledge of potential criminal activity. The UK court found him liable
as his assistance was "reasonably foreseeable" to aid in the crime. This principle, reflected in
the BNS, allows Indian courts to consider foreseeability in abetment cases, provided it aligns
with active participation or encouragement.64
While foreseeability adds a layer of accountability, it also presents challenges. The BNS’s strict
requirements for active participation seek to prevent overextension of liability in abetment
cases, particularly where an individual’s involvement is passive or indirect.

62
Nand Kumar v. State of Bihar, AIR 1984 SC 1157.
63
Jamuna Singh v. State of Bihar, AIR 1967 SC 553.
64
R v. Bryce, [2004] EWCA Crim 1231 (UK).
D. Influence of International Standards and Comparative Jurisdictions
1. United States v. Shabani: Overt Act in Conspiracy
The U.S. Supreme Court’s ruling in United States v. Shabani, which upheld the necessity of an
overt act to establish conspiracy, has significantly influenced the BNS's provisions on
conspiracy. This case highlighted the importance of requiring tangible steps toward committing
a crime to substantiate conspiracy charges, a principle that the BNS incorporates.65
By adopting the overt act requirement, the BNS aligns with international norms, ensuring that
individuals are not penalized for passive associations. This approach mitigates potential abuses
of conspiracy laws, especially in cases where the evidence may only suggest knowledge rather
than active involvement.
By adopting the overt act requirement, the BNS aligns with international norms, ensuring that
individuals are not penalized for passive associations. This approach mitigates potential abuses
of conspiracy laws, especially in cases where the evidence may only suggest knowledge rather
than active involvement.
2. Rosemond v. United States: Active Participation in Abetment
In Rosemond v. United States, the U.S. Supreme Court ruled that aiding and abetting requires
proof of both active participation and intent to facilitate a crime. This decision has influenced
the BNS, which requires that abetment involve a substantial contribution to the crime and intent
to assist the principal offender.66 By setting a high standard for intent and participation, the
BNS aligns with international standards and reduces the likelihood of unjust convictions in
abetment cases.
The decision in Rosemond also underscores the importance of distinguishing between
incidental involvement and deliberate participation. The BNS’s requirement of substantial
contribution reflects this, ensuring that individuals are only held liable when their involvement
meaningfully advances the commission of the crime.
E. Balancing Public Safety and Individual Rights: Judicial Perspectives
1. European Convention on Human Rights and Inchoate Offences
Although not a case, the European Convention on Human Rights (ECHR) influences judicial
interpretations of inchoate offences in India. The ECHR emphasizes protections against
arbitrary legal interventions, particularly in cases where evidence is indirect. Indian courts,
referencing the ECHR, have shown restraint in interpreting conspiracy and abetment
provisions, ensuring that such offences are applied in a manner that respects fundamental

65
United States v. Shabani, 513 U.S. 10 (1994).
66
Rosemond v. United States, 572 U.S. 65 (2014).
rights.67
The BNS adopts this balanced approach by requiring substantial evidence before imposing
liability for inchoate offences. By codifying higher evidentiary standards, the BNS aligns with
the ECHR’s emphasis on individual rights, ensuring that criminal liability is not imposed on
ambiguous or insufficient grounds.

VII. Conclusion
The Bharatiya Nyaya Sanhita (BNS) marks a significant shift in the Indian criminal law
framework, particularly in its treatment of inchoate offences. By codifying principles
surrounding attempt, conspiracy, and abetment, the BNS seeks to provide clarity, consistency,
and a modernized approach to dealing with crimes that are incomplete but still carry a
substantial risk to society. This final section critically evaluates the BNS’s approach to inchoate
offences, summarizing its key contributions, challenges, and potential areas for improvement.
1. The BNS’s Approach to Inchoate Offences: Key Strengths
The BNS has brought about notable improvements in the legal handling of inchoate offences,
addressing many gaps that existed under the Indian Penal Code (IPC). The key strengths of the
BNS in this regard can be summarized as follows:
A. Clarity and Precision in Definitions
One of the BNS's most significant contributions is its clear and precise definition of inchoate
offences. While the IPC’s provisions on attempt, conspiracy, and abetment were often vague
and subject to judicial discretion, the BNS incorporates specific criteria to determine when an
offence has crossed the threshold from preparation to attempt, when an agreement qualifies as
a conspiracy, and when an individual’s conduct can be classified as abetment. This is
particularly important in providing uniformity in judicial interpretations.
For example, the BNS's distinction between preparation and attempt aligns with international
practices, such as those in the United States and the United Kingdom. The provision that an
attempt requires substantial steps toward committing a crime, rather than just an intention or
plan, ensures that individuals are only punished when their actions are demonstrably linked to
the crime they intend to commit.68 This clarity in definition helps to minimize the ambiguity
that often leads to inconsistent and unfair rulings.
B. Introduction of Proximity Test and Overt Act Requirement
The BNS introduces the proximity test in attempt cases and the requirement of an overt act in

67
European Convention on Human Rights, art. 6.
68
Law Commission of India, Report on the Indian Penal Code (No. 42, 1971), 15.
conspiracy cases, both of which significantly improve the legal framework for inchoate
offences. The proximity test, which determines that an attempt occurs when the actions taken
are immediately connected to the commission of the crime, mitigates the risk of
overcriminalization. Similarly, requiring an overt act to establish conspiracy prevents
individuals from being penalized based on mere knowledge or association. These provisions
bring Indian law closer in line with modern international legal standards, such as those found
in the U.S. Model Penal Code and the United Kingdom’s Criminal Attempts Act 1981.
C. Protection of Individual Liberties
The BNS is keenly aware of the need to balance public safety with individual rights. Its
provisions reflect an understanding that criminal liability should not be imposed on individuals
who merely plan or conspire without taking significant steps toward committing the crime.
This cautious approach ensures that individuals are not unduly punished for thoughts or
intentions alone, a critical safeguard against potential misuse of the legal system. For instance,
by requiring substantial evidence for attempt and conspiracy charges, the BNS aligns with
constitutional safeguards and human rights standards, such as those enshrined in the European
Convention on Human Rights.69
D. Adaptation to Modern Challenges
In response to the evolving nature of crime, particularly in the realms of cybercrime and
economic offences, the BNS has adapted the provisions on abetment to cover new types of
criminal activity. These adaptations ensure that the law remains relevant in the face of emerging
criminal trends, a necessary step in a rapidly changing world. By extending liability for
abetment to include new types of offences, the BNS reflects a progressive legal outlook that
accounts for the complexities of modern-day crimes, including those facilitated by technology.
2. Challenges and Areas for Improvement
Despite its strengths, the BNS’s approach to inchoate offences is not without challenges. There
are areas where the framework could be further refined or where the law may face difficulties
in practical application.
A. Ambiguities in the Threshold for Attempt
While the BNS introduces a proximity test to delineate preparation from attempt, the
application of this test can still be subject to judicial interpretation. The determination of
whether actions taken by the accused are sufficiently proximate to the commission of the crime
is often a fact-intensive inquiry, leaving room for subjectivity. Although the proximity test
provides a clearer boundary than the IPC’s general provision, its application in complex cases
could still lead to inconsistent rulings. For example, determining whether a preparatory act has
sufficiently moved towards the commission of the crime might be open to debate in cases where
the accused has not yet taken an overtly harmful step.

69
European Convention on Human Rights, art. 6.
Furthermore, the BNS's provision for attempt requires "substantial steps" toward the
commission of a crime, but what constitutes a "substantial step" can be difficult to define
clearly in every scenario. As seen in cases like State of Maharashtra v. Mohd. Yakub70, courts
have often struggled with the application of this standard, leading to potential variations in
interpretations. While the BNS improves on the IPC by adding more precision, it may still
require judicial guidance to avoid inconsistent applications across jurisdictions.
B. Complexity of Proving Conspiracy
The requirement for an overt act to establish conspiracy under the BNS, while a positive step,
introduces complexities in practical enforcement. Proving that an agreement to commit a crime
has been made and that an overt act has been undertaken requires solid evidence of the parties’
intent and their coordinated actions. In many cases, the evidence may only be circumstantial,
leading to potential difficulties in meeting the evidentiary burden. Additionally, conspiracy
charges could lead to multiple individuals being charged, some of whom may have only had
peripheral involvement in the crime.
The challenge is not only in proving the existence of the agreement but also in showing the
overt act that advances the conspiracy. In cases where the act is not a direct one but a
preparatory action (e.g., funding or facilitating a crime), courts may face difficulties in applying
the law. The reliance on circumstantial evidence to prove conspiracy can sometimes undermine
the rights of the accused, especially when the act or agreement is not as direct as the law
requires. This raises concerns about potential overreach in prosecuting individuals who may
not have been significantly involved in the crime.
C. The Balance Between Punishment and Preventive Justice
The BNS’s approach to inchoate offences attempts to strike a balance between the need for
preventive justice and the protection of individual rights. While the law is designed to prevent
crimes before they are fully committed, there is always the risk of overcriminalization. The
extension of liability for conspiracy and abetment to new areas such as cybercrimes or
economic offences, while necessary, can potentially lead to the criminalization of conduct that
is not inherently harmful or that could otherwise be addressed through civil or administrative
mechanisms.
Moreover, the imposition of severe penalties for inchoate offences, especially conspiracy,
raises concerns about the fairness of the legal process. In some cases, individuals might face
lengthy sentences for being involved in crimes that were never completed or even attempted.
This tension between crime prevention and proportionality of punishment remains an ongoing
issue. As the BNS is implemented, it will be important for courts to ensure that penalties for
inchoate offences do not unduly infringe upon the principles of justice and fairness.
D. Evolving Jurisprudence and Judicial Discretion

70
State of Maharashtra v. Mohd. Yakub, AIR 1980 SC 1111.
The application of the BNS's provisions on inchoate offences will require ongoing judicial
scrutiny to ensure that it is consistent with the broader principles of justice and human rights.
As the BNS is still relatively new, its full impact will only be realized as more case law
develops. While the law provides clear guidelines, the courts will need to develop jurisprudence
to interpret and apply these provisions in diverse and evolving contexts. The evolution of case
law will determine how well the BNS accommodates emerging forms of crime and whether it
can adapt to new societal challenges while preserving fundamental rights.
3. Conclusion: Looking Ahead
The BNS represents a significant step forward in the legal treatment of inchoate offences in
India, offering a clearer and more structured framework than the IPC. The clarity in the
definitions of attempt, conspiracy, and abetment, as well as the introduction of the proximity
test and the overt act requirement, improves the consistency and fairness of legal outcomes.
These provisions help bridge the gap between public safety concerns and individual rights.
However, as with any legal reform, the practical application of the BNS will need continuous
evaluation to ensure that it strikes the right balance. The ambiguities in the threshold for
attempt, the complexities of proving conspiracy, and the challenges of balancing preventive
justice with individual freedoms highlight the need for a nuanced and evolving judicial
approach.
Looking ahead, it will be crucial for the judiciary to continue refining the interpretation of
inchoate offences under the BNS, ensuring that the law remains responsive to contemporary
legal issues while safeguarding the constitutional rights of individuals. The BNS's approach to
inchoate offences promises to evolve with the changing landscape of crime and justice, offering
a framework that both prevents criminal activity and respects the principles of fairness and
justice in the criminal process.