Armed Preparations: A Critical Analysis of Section 398 of the Indian Penal Code

Introduction

Section 398 of the Indian Penal Code, 1860 (“IPC”) prescribes a minimum sentence of seven years’ rigorous imprisonment for an offender who, “at the time of attempting to commit robbery or dacoity, is armed with any deadly weapon.” While seemingly succinct, the provision raises complex questions concerning the threshold of “attempt,” the definition of “deadly weapon,” the interaction with Section 397 IPC, and sentencing discretion. This article undertakes a doctrinal and jurisprudential examination of Section 398, drawing upon leading Supreme Court and High Court decisions, statutory context, and scholarly commentary.

Statutory Framework

• Robbery and Dacoity – Sections 390–391 IPC define robbery and elevate it to dacoity when committed by five or more persons.
• Attempt – Section 511 IPC criminalises attempts to commit offences punishable with imprisonment for life or other imprisonment.
• Section 397 IPC – Enhances punishment when, during the commission of robbery or dacoity, the offender “uses any deadly weapon”.
• Section 398 IPC – Applies at the attempt stage and requires only that the offender be “armed with” a deadly weapon, dispensing with proof of actual use.

Constituent Elements of Section 398

1. An attempt to commit robbery or dacoity^[1].
2. Possession of a deadly weapon at the material time.
3. Mens rea consonant with robbery/dacoity, i.e., intention to commit theft coupled with imminent threat of violence.

“Attempt” Versus “Preparation”

Courts have consistently demanded overt acts that transcend mere preparation. In Kiran Kumar v. State of Karnataka (2020)^[2], the Karnataka High Court overturned convictions where the prosecution failed to prove conduct “proximate to the commission” of robbery, notwithstanding seizure of iron rods and knives. Conversely, Mohd. Rashid v. State of Delhi (2009)^[3] sustained conviction where the accused had already confronted the victim with a dagger, satisfying the “attempt” threshold.

“Armed With Any Deadly Weapon”

Unlike Section 397’s requirement of “use,” Section 398 demands only possession while attempting the offence. The Supreme Court’s interpretation of “use” in Shri Phool Kumar v. Delhi Administration (1975)^[4]—that brandishing suffices—has influenced High Courts to treat mere possession under Section 398 as a fortiori culpable. Delhi High Court decisions (Avinash v. State, 2016; Ravinder v. State, 2016)^[5] recognise air-guns and air-pistols as deadly weapons, emphasising potential to inflict serious harm rather than actual injury.

Comparative Analysis with Section 397 IPC

The apparent anomaly—identical minima despite a completed versus attempted offence—was highlighted by the Supreme Court in Shri Phool Kumar. To harmonise, the Court broadened “use” to include display, ensuring parity between Sections 397 and 398.^[4]

Sentencing Jurisprudence

Section 398 prescribes a mandatory minimum. High Courts have exhibited constrained discretion. In Guchchi v. Santosh Kumar Kaurav (2005)^[6], a five-year sentence was held impermissibly low; the Bench underscored that trial courts “cannot go below the statutory floor.” Similarly, Mohd. Rashid^[3] rejected pleas for reduction, distinguishing Supreme Court precedents wherein Article 142 powers were invoked.

Evidentiary and Procedural Issues

Recovery and Identification of Weapons

While recovery bolsters prosecution, its absence is not fatal if other evidence proves possession. The Delhi High Court in Ikram Ansari v. State (2014)^[7] upheld conviction despite non-recovery, relying on consistent ocular testimony that the accused held knives capable of producing death.

Misdirection in Framing Charges

Erroneous citation of Section 397 instead of 398 need not vitiate trial where factual allegations clearly disclose attempt. The principle of “substance over form” guided the Delhi High Court in Mohd. Rashid^[3], which modified conviction to Section 398 without remand, noting absence of prejudice.

Appellate Scrutiny

The Supreme Court’s censure of perfunctory appellate review in Ram Ratan v. State of Rajasthan (2010)^[8]—albeit under Section 397—applies with equal vigour to Section 398 convictions. High Courts, being the “last courts on facts,” must record detailed findings on each element, especially the leap from preparation to attempt.

Policy Considerations and Reform Proposals

• Clarity on “Deadly Weapon” – Codification mirroring the Arms Act or adopting the Black’s definition (as utilised by Delhi High Court)^[5] would enhance certainty.
• Graduated Sentencing – A discretion-based sentencing grid could mitigate the rigidity of mandatory minima, aligning punishment with culpability.
• Distinct Treatment of Group Liability – Unlike Section 396 IPC, Sections 397–398 impose liability individually, eschewing Section 34 IPC (see Ashfaq v. State, 2003)^[9]. Legislative clarification could avert inconsistent application.

Conclusion

Section 398 IPC occupies a critical interstice between preparation and consummation of violent property offences. Jurisprudence demonstrates a stringent stance—mere armed presence during an attempt suffices for severe punishment. While judicial interpretation has largely resolved tensions with Section 397, outstanding issues concerning the definition of deadly weapons, evidentiary thresholds, and mandatory sentencing warrant legislative and scholarly attention. Ensuring doctrinal coherence and proportionality will reinforce both deterrence and fairness in the criminal justice system.

Footnotes

1. For the classical distinction between preparation and attempt, see State of Maharashtra v. Vinayak Tukaram Utekar (1997) (Bombay HC).
2. Kiran Kumar & Ors. v. State of Karnataka, 2020 SCC OnLine KAR 3342.
3. Mohd. Rashid v. State of Delhi, 2009 CRIMES 3 297 (Delhi HC).
4. Shri Phool Kumar v. Delhi Administration, (1975) 1 SCC 797.
5. Avinash v. State (NCT of Delhi), 2016 SCC OnLine Del –––; Ravinder v. State (NCT of Delhi), 2016 SCC OnLine Del –––.
6. Guchchi v. Santosh Kumar Kaurav, 2006 MPHT 1 296 (MP HC).
7. Ikram Ansari v. State (NCT of Delhi), 2014 SCC OnLine Del 819.
8. Ram Ratan v. State of Rajasthan, (2010) 13 SCC 509.
9. Ashfaq v. State (Govt. of NCT of Delhi), (2004) 3 SCC 116.