The court affirmed the distinction between preparation and attempt under Section 511 of the Indian Penal Code, ruling that acts sufficiently near to the intended crime constitute an attempt. It also held that special leave to appeal in criminal cases is granted only in exceptional circumstances.

Judgement

This was a petition for special leave to appeal from a conviction by the High Court, dated the 13th of June, 1892, under sects. 511 and 420 of the Penal Code.

It stated that the Petitioner had been convicted of (1.) an attempt to cheat and thereby fraudulently to induce the Comp troller-General to deliver to him or to Asad Ali a Government promissory note, No. 9764, for Bs.500, and pay the accrued interest thereon ; (2.) conspiracy with Asad Alt with that object; (3.) abetment of an attempt by Asad Ali; and had been sentenced to two years rigorous imprisonment.

An application had been made on the 1st of December, 1892, under sect. 32 of the High Court Charter of 1866, that the Petitioners case might be declared a fit and proper one for appeal to Her Majesty on the ground that the jury had been misdirected to the effect that the acts covered by the evidence amounted to an attempt at cheating within the meaning of the Penal Code, and had been refused.

The charge related to a lost Government promissory note for Rs.500, No. 9764, with arrears of interest thereon from 1865, which belonged to the representatives of one Mirza Husain Ali, and was to the effect that the Petitioner had attempted to cheat by applying in writing to the Comptroller-General on the 17th of June, 1891, and doing other acts between the 17th of June and the 20th of October, 1891, at Lucknow, to deceive him into the belief that the same belonged to Husain Ali deceased (brother of Asad Ali), and thereby dishonestly inducing the Comptroller-General to pay him or Asad Ali the accrued interest, and deliver to one or other a duplicate of the said note.

The petition stated that no evidence was laid before the jury that an application had ever been made by or on behalf of the Petitioner either orally or in writing to the Comptroller-General that the arrears of

Law. Rep. 20 Ind. App. 90 ( 1892- 1893)

Ex Parte Macrea. V. -22

interest should be paid, or the duplicate note delivered, or that any initial steps should be taken in the Public Debt Office towards such payment or issue ; that on the contrary a witness who had been at the time superintendent of that office deposed that no communication had been received from the Petitioner on which such payment or issue could have been made. It also stated that the evidence adduced was directed to prove the said false representation to the Comptroller-General, and that inquiries had been made by the Petitioner at the Public Debt Office whether the said note was outstanding or not, and that the Petitioner had caused letters of administration to Husain Ali deceased to be issued reciting that note No. 9764 belonged to his estate, that he requested the police authorities to investigate the alleged loss, and produced to them a copy of the lost note, and also sent such copy, together with a copy of the letters of administration, to the Exchange Gazette for publication.

Knox J., who presided at the trial, directed the jury that, besides being satisfied of the Petitioners intention to cheat, they must be satisfied that he had done acts towards such cheating sufficiently important for the law to take notice of, and sufficiently near to the act of cheating intended and contemplated, and that upon the question of proximity they must consider whether those acts were sufficient to excite reasonable apprehension that the act attempted would be carried out and accomplished with the intention to cheat.

In refusing the Petitioners application for leave to appeal, Knox J., stated that " there appears to be a wide difference between the meaning of the word * attempt as understood by English lawyers in the phrase attempt to commit a felony and the word attempt as actually defined in the Indian Penal Code." Blair, J., agreed that sect. 511 uses the word "attempt" in a very large sense, and held that the Petitioners acts bore and were intended to bear upon the mind of another person, that that mind was left to operate, that consequently acts w