Report No. 42

Chapter 5

Abetment, Conspiracy and Attempt

A. Abetment

5.1. Scheme of abetment under three heads.-

In devising a comparatively simple scheme of abetment, the first Law Commissioners made a radical departure from the complicated provisions of English Penal Law, which distinguished between principals in the first degree, principals in the second degree and accessories before the act, and then again between incitement to felonies and incitement to misdemeanours. Section 107 classifies abetment under three heads, namely, abetment by instigation, abetment by conspiracy and abetment by intentional aid. The concepts underlying the first and third forms of abetment as explained in sections 107 and 108, have not given rise to any difficulty in practice, and they seem to us to be clearly and adequately stated.

5.2. Abetment by conspiracy.-

The second paragraph of section 107 defines abetment by conspiracy by stating that "a person abets the doing of a thing who engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing". Under section 120A, when two persons agree to committing an offence or to cause an offence to be committed, they are guilty of a criminal conspiracy to commit that offence, whether or not any of the parties thereto does any act besides the agreement in pursuance thereof. Thus the persons who are initially guilty of conspiracy to commit an offence become guilty of abetting the offence as soon as an act or illegal omission takes place in pursuance of the conspiracy.

After the enactment (in 1913) of sections 120A and 120B making conspiracy itself an offence punishable in the same manner as abetment, abetment of an offence by conspiracy has lost its raison d'etre and could well have been taken out of Chapter 5 altogether. In fact, the co-existence of the two ideas in the Penal Code only leads to some confusion in applying them. Anglo-American legal systems which admit the idea of criminal conspiracy- as such and make it punishable, do not contemplate abetment of an offence by mere agreement to commit it. We propose that the second paragraph of section 107 and all subsequent references in Chapter 5 to abetment by conspiracy should be omitted.

5.3. Abetment by aiding.-

Under the third paragraph of section 107, a person abets the doing of a thing who intentionally aids the doing of that thing. The language appears to indicate that, to constitute abetment of a offence, there must be aid in the commission of that particular offence. Knowledge that some offence is going to be committed and aid given in that knowledge is not enough. At the same time it is not necessary that the person who gives the aid should know beforehand all details pertaining to the offence or the exact manner in which it is going to be committed.1 We do not think, however, that the wording of the clause requires any modification.

1. See article by R.J. Buxton Complicity in the Criminal Code in Law Quarterly Review, Vol. 85, pp. 258-262; R. v. Bainbridge, (1959) 3 All ER 200; and R. v. Bullock, (1955) 1 All ER 15.

5.4. Section 107 amended.-

We accordingly propose that the main part of section 107 may be simplified to rea.-

"A person abets the doing of a thing, who instigates any person to do that thing, or intentionally aids, by any act or illegal omission, the doing of that thing".

The two explanations and the illustration do not require any change.

5.5. Position of abettor withdrawing from complicity in the offence.-

We considered the question whether a countermanding of abetment in time should relieve the abettor of criminal liability. The case law in India on the subject appears to be inconclusive. According to an old Bombay case,1 if the abettor, before the accomplishment of his criminal purpose, abandons his object and withdraws from the further prosecution thereof, and the person abetted proceeds with the design on his own account, the abettor may not be held guilty under section 114. But in a Calcutta case,2 a person who, after consenting to form one of a party which committed theft, resiled from the agreement but was present at the theft, was regarded as guilty of abetment under section 107, clause thirdly, read with section 109, as having intentionally aided the commission of the theft.

It appears that, in England, in order that a person may be guilty as an accessory before the fact, the procurement must be continuing. If the procurer of a felony repents and, before the felony is committed, countermands his order, but despite that fact, the principal commits the felony, the original contriver will not be liable as an accessory.3 The Court of Criminal Appeal has held4 that, in order to escape from liability as an accessory, there must be an express and actual countermand or revocation of the order previously given.

We find that, in the Model Penal Code5 prepared by the American Law Institute, the following provision is suggested as being suitable.-

"Unless otherwise provided by the Code or by the law defining the offence a person is not an accomplice in an offence committed by another person if he terminates his complicity prior to the commission of the offence and

(i) wholly deprives it of effectiveness in the commission of the offence; or

(ii) gives timely warning to the Law enforcement authorities or otherwise makes "proper effort to prevent the commission of the offence."

We considered whether a provision on these lines should be made in the Code conferring complete immunity on an abettor, who, prior to the actual commission of the crime, sincerely repents, dissociates himself from the participants and gives reasonable help to the authorities with a view to preventing the commission of the crime. But there are two objections to such a principle being recognised. First, it may be pleaded in every case by an instigator who, at the last moment, pretends to withdraw his association with the crime for fear or detection. Secondly, under the scheme of the Code, the offence of abetment is complete with the instigation or other act of the abettor; and the question whether or not the principal offence has been committed is immaterial except as regards the quantum of punishment under section 109, 115 and 116. Countermanding or withdrawal is, therefore, out of the question, because what is complete cannot be withdrawn.

One of us was of the view that, though these difficulties show the need for some safeguards, they ought not to come in the way of accepting the basic principle, and if penitence was to be encouraged, there should be a provision giving legal recognition to it. Countermanding should be permitted only if the person countermanding makes his best efforts to prevent the crime from being committed. Such a provision would be beneficial, as it would offer an inducement to a prospective offender to desist from completing the offence, and may help in preventing the commission of the main offence.

The rest of us, however, were of the view that cases of sincere repentance were very rare, that it should be left to the discretion of the Court to deal leniently with such a repentant sinner, and that no special provision need be made in the Code.

1. Rex v. Amrita Govind, (1873) 10 Born HCR 497 (500) (West and Nanabhai Haridas

2. Queen v. Budhan, (1867) 8 Weekly Reports (Cri) 78 (79) (Grover J.).

3. Hale, 618, referred to in Archbold, (1966), para. 4144.

4. R. v. Croft, (1944) 2 All ER 483 (485): 170 LT 312 (CCA).

5. Section 2.06, sub-section (6), clause (c), Model Penal Code.

5.6. Section 108, main paragrap.-amendment proposed.-

In defining an abettor as a person who abets "the commission of an offence", section 108 employs language which is not strict in conformity with that of section 107 which defines abetment of "the doing of a thing" i.e., of an act. The main paragraph in section 108 may be reworded as follows.-

"A person abets an offence who abets the doing of an act which is that offence, or which would be that offence if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor."

5.7. Section 10.-latter half and negligence.-

The latter part of the above definition deals with a case where a person may be guilty of abetting an offence though the person abetted may be incapable of committing that offence for any reason whatsoever. It says that the abettor in such circumstances should be held to be guilty of abetment of an offence its if it had been committed by the person abetted, with the same intention or knowledge as that of the abettor. This does not deal with a case where the person abetted has committed an act which amounts to criminal rashness or negligence, but does not amount to criminal intention or knowledge.

Thus, if a driver of a motor car allows the car to be used by a lunatic or by a person who is made drunk against his will, and that person by his rashness and negligence causes the death of another person, can it be held that the abettor abetted the commission of an offence under section 304A, I.P.C.? The question seems to be largely academic, because instances where a person abets the commission of a rash and negligent act and the person who commits that act is incapable in law of committing any offence, will be very rare indeed. We do not think it necessary to make any amendment in section 108 to meet such cases.1

1. The case reporte in AIR 1947 Nag 113 and AIR 1951 Punj 418 deal with somewhtt different circumstances. See also Thorton v. Mitchell, 9 (1940) 1 All ER 339.

5.8. Section 108, Explanation 1.-

The idea underlying the first explanation will, we think, be brought out better by rewording it as follows.-

"To constitute abetment of an offence that consist of an illegal omission of an act, it is not necessary that the abettor should himself be bound to do that act."

5.9. Section 108, Explanations 2 and 3.-

It is curious that explanation 2 refers to "the offence of abetment", while explaining what constitutes abetment of an offence. This is neither apt nor necessary. Explanations 2 and 3 may be combined and revised as follows.-

"To constitute abetment of an offence, it is not necessar.-

(a) that the act abetted should be committed; or

(b) that the effect requisite to constitute the offence should be caused; or

(c) that the person abetted should be capable by law of committing an offence, or should have any guilty intention or knowledge, or should commit an offence."

5.10. Section 108, Explanation 4.-

Explanation 4 is somewhat ambiguously worded. It states, "The abetment of an offence being an offence, the abetment of such an offence is also an offence". Does the opening part refer to a legal proposition in the sense of "inasmuch as the abetment of an offence is an offence", or does it imply a condition precedent "if or when the abetment of an offence is an offence"? Further, the statement that the abetment of such an abetment is an offence- gives no guidance as to the punishment to which the second degree abettor is liable in different circumstances. If, for instance, A instigates B to instigate C to commit murder, and B accordingly instigates C, but the murder is not committed,1 then is the abetment by A punishable under section 109, or is it punishable under section 115?

The answer to this question depends on whether the word "offence" in section 109 means the main offence ultimately committed or else whether it will include the intermediate offence of abetment of the main offence. The discussion in Khuhro's case2 shows that A is liable to be regarded as abetting murder where B does not instigate C, and also where C does not commit the murder. The judgment emphasises that abetment of abetment of an offence is no more, and no less, than abetment of that offence. This appears to us to be right, and in order to bring out the idea clearly, the Explanation may be reworded as follows.-

"A person who abets the abetment of an offence abets that offence".