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Report No. 156

Clauses 38 to 44

12.26. Under the Indian Penal Code 'abetment' is a separate and distinct offence provided a thing abetted is an offence. As a general rule, a charge of abetment fails if the substantive offence is not established against the principle assailant. The Supreme Court in Jamuna Singh' s case, AIR 1967 SC 553, has held that it cannot be held in law that a person cannot ever be convicted of abetting a certain offence when the person alleged to have committed that offence in consequence of abetment, has been acquitted and that the question of abettor's guilt depends upon the nature of abetment and the manner that the abetment was made.

Sections 107 to 120 in Chapter V relate to the abetment. Section 107 classifies abetment under three heads, i.e., by instigating or by conspiracy or by intentional aids. These are explained in both sections 107 and 108.

The Law Commission in its 42nd Report examined section 120A which lays down that when two persons agree to commit an offence or to cause an offence to be committed, they are guilty of criminal conspiracy to commit that offence whether or not any of the parties thereto does any act besides the agreement in pursuance thereof and noted that 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 and that after an enactment in 1913 of sections 120A and 120B making conspiracy itself punishable in the same manner as abetment. Abetment of an offence by conspiracy has lost its relevance and, therefore, all references in Chapter V including section 107 'abetment by conspiracy' should be omitted.

The Law Commission also examined sections 108 and 108A and after referring to some of the .decided cases recommended that Explanations 2 and 3 may be combined and revised and that Explanation 4 may be reworded and that Explanation 5 which mentions about the abetment by conspiracy to be omitted. On these lines, the Law Commission recommended that section 108 and 108A may be combined and revised.

Clause 38 of the (Amendment) Bill, 1978 has incorporated these recommendations but with some changes. By and large, section 108 as mentioned in clause 38 is in conformity with the recommendations made by the Law Commission. Therefore, we do not recommend any further change.

Sections 115 and 116 deal with the punishments for successful abetment of offence. Section 115 specifically deals with the punishment for unsuccessful abetment of offence punishable 'with death or imprisonment for life'. The Law Commission in its 42nd Report noted that the words 'death or imprisonment for life' are ambiguous and they may cover sedition. Therefore, they recommended to limit it to capital offences for which death is the only punishment or one of the punishments provided by law and accordingly recommended revision of this section.

Existing section 116 prescribes punishments of offences punishable with imprisonment when the offence is not committed. The Law Commission recommended that in order to avoid any overlapping between sections 115 and 116, it is desirable to exclude capital offences by inserting the words in section 116 'not being a capital offence'. The Law Commission also noted that the maximum punishment for abetment if that offence be not committed is only lAth of the longest term and this was too low and should be increased to 1/2 of the maximum term provided for the offence.

The Law Commission also examined second paragraph of section 116 and recommended that where the abettor is a private person who abetted a public servant should not be dealt with more severely than in a case where the person abetted is a private individual. Section 117 applies to abetment of the commission of an offence by the public generally or a number of class of person a exceeding ten.

The Law Commission having noted judgments of some High Courts recommended a new section 117A to be inserted which is to the effect that whoever commits the commission of an offence punishable with imprisonment by a child under 15 years of age whether or not the offence is committed shall be punished with imprisonment of any description provided for that offence which may be extend twice the longest term of imprisonment provided for that offence.

Likewise, the Law Commission also examined sections 118 and 119 and suggested some minor changes like the words a capital offence' be substituted. A perusal of the new provision sought to be included would show that they are in conformity with the recommendations of the Law Commission and we are also of the view that the changes are warranted.

The changes suggested in clause 39 of the Bill are of minor nature.

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