Report No. 42
5.21. Section 116 revised.-
Section 116 prescribes the punishment of offences punishable with imprisonment when the offence is not committed. In order to avoid any overlap between this section and section 115, it is desirable expressly to exclude capital offences. This may be done by inserting the words, "not being a capital offence", after the words, "an offence punishable with imprisonment".
It will be noticed that the abetment of an offence punishable only with fine is not punishable under section 116 or any other section in this Chapter. We consider that it is unnecessary to punish such abetment and the present position does not require any change in this respect.
Under the first paragraph of section 116, the maximum punishment for abetment, if the offence be not committed in consequence, is only one-fourth of the longest term of imprisonment provided for the offence. We consider that this is too low and propose that it should be increased to one-half of the maximum term provided for the offence.
The second paragraph of section 116 deals with two classes of cases, (i) where the abettor is a public servant whose duty it is to prevent the commission of an offence and the person abetted is a private individual, and (ii) where the abettor is a private individual and the person abetted is a public servant whose duty it is to prevent the commission of an offence. In both cases, the abettor is liable to heavier punishment than is provided in the first paragraph of section 166.
We consider that in the first category of cases, viz., where the abettor is a public servant, he should be liable to be punished with the full period of imprisonment provided for the offence instead of only one-half of the term. Thus, where a police constable, instead of preventing a dacoity of which he has information, aids and abets a gang of dacoits, but somehow the dacoity is not committed, he should be liable to be punished as if the dacoity had been committed. The act of the public servant being reprehensible in the extreme, there is no hardship if the law is fully applied for checking it.
In the other category of cases, viz., where the abettor is a private person, the mere fact that he abetted a public servant whose duty it is to prevent the commission of an offence, the abettor need not, in our opinion, be dealt with more severely than in a case where the person abetted is also a private individual.
We accordingly propose that section 116 may be revised as follows.-
"116. Abetment of offence punishable with imprisonmen.-if offence be not committe.-if abettor be a public servant whose duty it is to prevent the offence.- Whoever abets an offence punishable with imprisonment, not being a capital offence, shall, if that offence be not committed in consequence of the abetment, and no express provision is made, for the punishment of such abetment, be punished with imprisonment of any description provided for that offence for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for that offence, or with both; and if the abettor is a public servant whose duty it is to prevent the commission of such offence, the abettor shall be punished with the punishment provided for the offence."
Of the four illustrations which are appended to the section, the first is obsolete inasmuch as abetment of bribery is now a substantive offence under section 165A. The last illustration also has to be omitted in view of the amendment in the second paragraph of the section. Accordingly, the illustrations to the revised section may be as follows.-
(a) A instigates B to give false evidence. Here, if B does not give false evidence, A has nevertheless committed the offence defined in this section, and is punishable accordingly.
(b) A, a police officer, whose duty it is to prevent robbery, abets the commission of robbery. Here, though the robbery be not committed, A is liable to the punishment provided for robbery."
5.22. Section 117.-
Section 117 applies to abetment of the commission of an offence by the public generally or by any number or class of persons exceeding ten. The section is not intended to bar the application of other provisions relating to punishment for abetment. In a Lahore case,1 a doubt was expressed whether, where section 117 applies, the offence could fall under section 115, in that case, the accused had made a violent speech at a religious assembly of Sikhs, in which he incited the audience to murder Englishmen and Government servants. The Magistrate convicted him under section 302 read with section 115 as well as section 117, and sentenced him to rigorous imprisonment for five years.2 The High Court had doubts as to whether section 115 applied, the doubt being based on the fact that section 115 applies only when the abetment is not punishable under any other provision of the Code, and, if section 117 applies, then the offence would not fall under section 115.
In a Calcutta case,3 however, it was pointed out, that the words "express provision" in section 115 do not refer to provisions like section 117, but to sections 121, 131 and the like which deal with abetment of offences punishable with death or imprisonment for life, i.e. the particular offences to which section 115 applies.
The question was considered at length in a Bombay case,4 where the High Court agreed with the Calcutta view, and dissented from the doubt expressed in the Lahore case.
We agree with the Calcutta and Bombay view, and, after the elaborate discussion found in the Bombay judgment, we do not think that the doubt expressed in the Lahore case would survive. Hence no clarification is necessary in this section.
1. Santa Singh v. Emp., AIR 1933 Lah 660 (Bhide J.).
2. Apparently, powers under section 30, Cr PC were exercised by the Magistrate.
3. Emp. v. Dwarka Nath, AIR 1933 Cal 47 (48).
4. Emp. v. Lavji Mandan, AIR 1939 Born 452 (453).
5.23. Abetting commission of offences by children.-
In the course of our preliminary consideration of the Code, a suggestion was made that there should be a higher punishment for abetting the commission of offences by minors. It is a notorious fact that in every large urban centre, a number of persons can be found who train juveniles and children in criminal activities like pick-pocketing, pilfering and burglary and even live upon their earnings, keeping themselves in the background and escaping detection. We included in our questionnaire the question, "Where a person abets an offence by instigating a minor to commit it, should the abettor be punishable with a punishment higher than that prescribed for abetment in general?"
A majority of the opinions received by us, particularly from State Government officers and members of the Bar, was in favour of the proposal. The opinions given by the Judges seemed to be evenly balanced. After a careful consideration in the light of these opinions, we are of the view that abetting the commission of any offence by a minor should be regarded as an aggravated form of the offence of abetment and punished more severely. As observed by the Judges of a City Civil Court in a collective opinion sent to the Commission.-
"By instigating a minor, the abettor contaminates the mind of the child, and takes advantage of his immature understanding and diverts him to a wrong path, thus marring his future. The society has, in such cases, to shoulder the additional burden of reforming the minor. It is, therefore, necessary to provide higher punishment for such an offence, to deter anti-social elements from making use of such innocent children for their unlawful objects."
5.24. New section 117.-recommended.- We recommend the following new section for the purpose.-
"117A. Abetting commission of offences by a child.- Whoever abets the commission of an offence punishable with imprisonment by a child under fifteen years of age, whether or not the offence is committed in consequence of the abetment, shall be punished with imprisonment of any description provided for that offence for a term which may extend to twice the longest term of imprisonment provided for that offence, and shall also be liable to fine.
5.25. Section 11.-formally amended.-
Voluntary concealment of a design to commit an offence punishable with death or imprisonment for life is punishable under section 118, if the concealment is done by an act or illegal omission with the intention of facilitating the commission of the offence or with the knowledge that such commission is likely to be facilitated by such concealment. It is not necessary that the concealment must actually facilitate the commission of the offence. No change of substance is required in this section, but the reference to 'an offence punishable with death or imprisonment for life' may be replaced by 'a capital offence', for the reasons mentioned above1 under section 115.
1. Para. 5.20, above.
5.26. Section 11.-amended.-
In the fourth paragraph of section 119 also, the words "punishable with death or imprisonment for life" should be replaced by the words "a capital offence". It is, however, not clear whether this paragraph applies only when the offence sought to be concealed is committed or also when it is not committed. The last paragraph would seem to cover all cases where the offence is not committed, including a capital offence, but before 1955, it could not be applicable to the offence of murder then punishable with death or transportation for life. The legislative intention was perhaps to make the fourth paragraph applicable in relation to a capital offence, whether or not that, offence was committed.
After 1955, however, it is possible to do without the fourth paragraph: if a capital offence be committed, the public servant concealing the existence of a design to commit the offence will be punishable under the third paragraph with rigorous imprisonment for a term which may extend to ten years (one-half of the 'longest term'), and if the capital offence concealed be not committed, he will be punishable under the last paragraph with rigorous imprisonment upto five years (one-fourth of the 'longest term'). It does not seem necessary that in the latter case also the public servant should be punished with rigorous imprisonment for ten years. We accordingly recommend that section 119 be simplified and made clearer by omitting the fourth paragraph. (Incidentally we notice that prosecutions under sections 118, 119 and 120 are very rare).
5.27. Section 12.-formally amended.-
No change of substance is required in section 120. But it is desirable expressly to exclude cases covered by section 118, and for this purpose after the words 'offence punishable with imprisonment', the words 'not being a capital offence' should be inserted.
B. Criminal conspiracy
5.28. Overlap between abetment by conspiracy and criminal conspiracy.-
For more than half a century, the Penal Code only recognised abetment by conspiracy as defined in clause secondly of section 107, and not the offence of criminal conspiracy as such. The latter notion was introduced in the Penal Code by the Criminal Law (Amendment) Act of 1913, which inserted a separate Chapter 5A consisting of two sections 120A and 120B. Despite the obvious and considerable overlap between the provisions of these two sections and the provisions governing abetment of an offence by conspiracy contained in Chapter 5. the legislature did not think it necessary to amend the earlier Chapter in any way.
Thus, if a person is engaged with another or others in a conspiracy to commit an offence and if some act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of the criminal act, he is liable to be punished as an abettor directly under the relevant section in Chapter 5. But whether or not such act or illegal omission takes place, he is guilty of a criminal conspiracy as soon as he becomes a party to the agreement to commit the offence and is punishable under sub-section (1) or sub-section (2) of section 120B, as the case may be.
So far as conspiracies to commit serious offences are concerned, section 120B(1) puts a party to the conspiracy in exactly the same position as an abettor of the offence for the purpose of punishment. Although it is theoretically possible to charge a person with conspiring to commit an offence even where no overt act in pursuance of the conspiracy has been done, it seldom, if ever, happens that two or more persons are prosecuted for a criminal conspiracy merely on the strength of evidence proving the agreement and nothing more.
5.29. Abetment by conspiracy omitted from Chapter 5 of the Code.-
However that may be, there is no doubt that, after the enactment of Chapter VA, abetment by conspiracy is of little practical use, and is redundant as a criminal law concept. It may be noted, that in England there is no separate mention of conspiracy as a species of abetment. In English law, if a conspirator is to be regarded as an accessory before the fact, he should be one who counsels, procures, or commands the commission of the offence. If he is to be regarded as a principal in the same degree because of "aiding and abetting", the emphasis is on his presence, assistance or encouragement at the commission of the crime. We have accordingly at the beginning of this chapter recommended the omission of the second paragraph of section 107 and all subsequent references in Chapter V of the Code to abetment by conspiracy.
5.30. Wide sweep of "criminal conspiracy".-
One is struck by the wide sweep of the definition of criminal conspiracy in section 120A. It covers not only (i) an agreement to commit an offence but also (ii) an agreement to commit an illegal but not criminal act, and (iii) an agreement to commit a legal act by illegal means. This distinction between (ii) and (iii) is obscure and may be without any real difference: achievement of any object by illegal means must involve the doing of something illegal, i.e. the committing of an illegal act. The act which is an offence punishable under sub-section (1) or sub section (2) of section 120B is being a party to a criminal conspiracy as defined in section 120A. In other words, criminal conspiracy is not an offence ancillary to another offence, but an independent and substantive offence by itself.