Report on the 66 186. After stating the difficulties, the Commissioners observe that there seem Indian Penal Code. to be three modes of obviating them; "by admitting the general charge to be sufficient, but requiring the prosecutor, on application by the accused and under "the direction of the Court, to supply the accused with the names of the "principals in the first degree, and such particulars as would be necessary with a "view to his defence; or, secondly, by allowing the charge to be stated in both "ways by means of different counts; thirdly, by allowing the charge to be made "in the alternative," when it is doubtful whether the proof will show the party to have been an accessory before the fact or a principal in the second degree. Appendix (A.) 8th Report. Page 212. Clause 86. Clause 87. 187. The authors of the Code, in framing the definitions of abetment, have made the distinction, the propriety of which is here in question, and the provision in Clause 61, it seems to us, will obviate the difficulties apprehended by the English Commissioners. This Clause directs that when a person is found guilty of an offence, but it is doubtful under which of certain penal provisions he is punishable, the offender shall be liable to whatever punishment is common to the penal provisions between which the doubt lies. The same result is aimed at by the suggestion which we find has been offered by Lord Denman, Lord Chief Justice of England, and other persons consulted by the Criminal Law Commissioners, namely, in the words of Lord Denman, that" when the train of circum"stances makes it perfectly clear that the accused is either principal or accessory, "but does not enable the jury to see clearly whether he is one or the other, the "finding of that alternative by the jury ought to expose him to punishment." 188. The above observations, we conceive, will be found to answer the question put by Sir H. Seton, upon Clause 85 in this chapter, "why omit abetment simply, "viz. being present at and aiding?" 189. Mr. Norton, after the remark quoted above, objectingly observes, that "those who aid and those who conspire, and who may also be present and sub"stantively co-operate in the act, ought, to all intents and purposes, to be con"sidered as principals and not abettors.' We have shown that with respect to those who are " present" and "substantively co-operate" this is just what is intended, and Mr. Norton himself remarks that "Clause 3, of the 1st chapter "enacts as much," "but that," says he, " is not so enacted by this chapter." We do not see why it should be again enacted in this chapter, the Clause referred to being intended, as is clearly expressed, to govern the whole Code. With regard to "those who aid" and those who "conspire," though they are distinguished from the principal offenders for the sake of accuracy of definition, they are liable to be dealt with in the same manner, as we have already intimated. 190. As a specimen of Mr. Norton's criticisms, we may notice his remarks upon abetment by concealment. "It may be asked," he says, "what is concealing?' "probably not disclosing' is meant,-a party not disclosing the design of his "friend or child to commit an offence is himself criminally guilty, though he may afterwards prevent or dissuade that very design from being effected." The inaptitude of this illustration will be obvious, when, on turning to the definition, it is observed that concealment amounts to "abetment" only where the party intends or knows it to be likely that he may thereby facilitate the doing of the thing designed. This is the definition of what constitutes abetment: whether the abetment is criminal, depends, of course, upon whether the thing is an offence or not. 191. " Luckily," Mr. Norton adds, "there is no punishment awarded in the "Code for concealing a design not carried into effect." Is it to be believed that Mr. Norton sincerely thought that this happened by chance? 192. Again, in the very next paragraph of his Report, Mr. Norton mentions "as an example of very loose style of legislation, even in an illustration," "that "a person is declared (Clause 87) to steal a horse who takes him fraudulently, "and if another aids him in that act (say by opening the stable-door and leading "the horse out) he abets that theft, but is not a principal thief." This is an unaccountable misrepresentation, as will appear at once from the following quotation of the illustration to which he refers. "A. aids B. to take a horse out of Z.'s possession; here if B. took the horse fraudulently, B. is guilty of theft; "but if A. aided B., believing that B. had a right to take the horse, A. is not "said to have abetted the theft committed by B., though he has abetted the taking "of Report on the " of the horse." The illustration, it will be perceived, is the very reverse of what Mr. Norton represents it to be. His remarks are surely an example of an un- Indian Penal Code. happily "loose style" of criticism. 193. Sir R. Comyn, adverting to the word "misconception" in Clause 87, refers to his remark on the same word in Clause 82, which we have already considered. Sir H. Seton, Mr. W. Hudleston and Mr. A. D. Campbell object to the passage in Clause 87 containing this word, as obscure. Sir H. Seton points to Clause 99 as liable to the same objection. The learned Judge doubts whether the misconception applies to the quality of the act in question as being an offence or not. In all the illustrations annexed to the clauses in which this word is used, for Clauses 82, 87, 99, the purpose of showing the sense in which it is to be taken, the misconception 100. concerns the matter of fact. We understand, as we have said before, that in using this word there is a reference to Clauses 62 and 63. The misconception, it would seem, respects the circumstances, taking them wrongly to be such as would warrant the act done according to law. We beg to refer to the observations we have offered above upon the two clauses here adverted to. 194. The Code distinguishes between cases in which the abetment is successful and those in which the effect intended is not accomplished. When the offence is Clauses 88, 95, and committed, if the abetment is by instigation, conspiracy or aid, the punishment is 97 the same as if the abettor had been a party in the commission of it. Otherwise, 90, 91, 93. 195. The distinction here noticed having been overlooked by some of the officers who have offered observations on this chapter, they have been led to impute inconsistencies which do not exist. Another, Mr. Giberne, adverting to the distinction, expresses his disapproval of it, thinking that "the person who "instigates another to commit an offence under any and every circumstance," has actually committed "his portion of the offence." He does not say, however, whether he would have the instigator always made punishable with the punishment of the offence which he abetted, or how he would determine the punishment. Mr. Cochrane (the Company's standing counsel) on this point says, that he is not prepared to think that, as a general principle, equal punishment should be awarded to the man who abets as to the party committing an offence. 196. The English law, as it is expressed in the Digest, makes every party to a Art. 14, Sec. 4, crime, as principal, in the first or in the second degree, or as accessory before the Chapter I. fact, "guilty of that crime," and so far the Indian Code agrees with it. Instigations, &c., without effect are provided for separately by the English law. In the Digest they are brought under the head of " Illegal solicitation." A specific Chapter XXII. penalty, viz., imprisonment not exceeding two years, or fine, or both, is prescribed, if the offence intended be a felony; if it be a misdemeanor the penalty is not to exceed one-half of that prescribed for the misdemeanor. Art. 1. 197. The punishment is cumulative by the Indian Code when the person who Clause 89. instigates an offence (actually committed in consequence) does so by committing another offence, as when A. by putting B. in fear of death induces B. to burn a stack of corn belonging to Z. Here A. is punishable for the instigation under Clause 88, and the putting in fear of death under Clause 482. It is the same Clause 91. where the instigation is attended with the threat of causing any injury. 198. Mr. W. Hudleston and Mr. A. D. Campbell concur in objecting to the accumulation of punishment in this manner, the former expressing an opinion that the rule of punishing for the greater of two or more offences is preferable. 199. The principle of rendering the punishment cumulative when two offences are committed in one transaction, is followed to a considerable extent in this Code, but 19. E 4 Report on the but with discrimination; it is ordered in Clause 58, that punishments shall not be Indian Penal Code. cumulative unless it be so expressly provided, and in Clause 59, that in no case shall be combined the punishments provided by more than two penal provisions of the Code. The question of the propriety of cumulative punishment will be more particularly considered in its proper place in reviewing the chapter of punishments. 200. We have said that we consider that all who, as being actually present and assisting in the commission of an offence, come directly within the definition of principals in the second degree in the English law, are regarded by the Code as Russell 1, page 21. accomplices in the fact, or more strictly "accessories at the fact," and guilty of the offence, without distinction. Clause 94. 201. But Clause 93, which applies to a person "present while any offence is "committed" and "instigating the offender to persist in the commission of that "offence," is thought to militate against this view, as the punishment is limited, in regard to imprisonment, to one-fourth part of the longest term provided for the offence. We apprehend that if the offence were persisted in or renewed, the person implicated as above would be deemed an accomplice in the fact or "an accessory "at the fact," liable to the punishment of the offence. We conceive that this clause is intended to meet a case in which the instigation has not had the effect intended. We infer this not only from its apparent tenor, but also from the position of the clause among other clauses providing for abetment by instigation when the offence appears not to have been committed. 202. The clause at first sight appears obscure from the reference to an offence committed as identical with that which is abetted in the manner stated. The meaning, as we understand it, may be best illustrated by an example, as follows: A. is casually present when a mob attacks a house with the intention of sacking it. A. takes no part at first, but seeing the attack suspended, he instigates the mob to persist; if the attack is renewed in consequence, he is liable to punishment equally with the rioters; if his instigation is without effect, he is answerable for the instigation under this clause. 203. This clause is limited to cases in which the offence instigated is punishable with rigorous imprisonment for a term of one year or upwards. We do not understand that it is meant to apply exclusively to cases in which rigorous imprisonment is prescribed positively, but to all cases in which it may be inflicted, excluding cases in which simple imprisonment is prescribed positively. This remark applies also to Clause 102. 204. Simple instigation to commit an offence, without the effect intended, is not punishable except under the clause last noticed, unless it be directed to the "public generally," or to "any number or class of persons exceeding ten;" it is then punishable by imprisonment, which may extend to three years, or fine, or both. Mr. Cochrane objects to the principle of this provision. Mr. J. F. Thomas thinks it will open the door to malicious prosecutions, unless the instigation be confined to some overt acts like the illustrations. Mr. Hudleston adopts this objection, and adds that he thinks the provision needless. Mr. Campbell disagrees with Mr. Thomas and Mr. Hudleston. 205. The suggestion of Mr. Thomas appears to us worthy of attention. Perhaps it may be most expedient to define the manner of instigation by the terms used in Clause 113, relating to attempts to excite feelings of disaffection to the Government, or such terms as may be settled when that clause comes under consideration. 206. The number ten is obviously fixed arbitrarily. By Clause 127, it requires twelve persons to constitute a riotous assembly. It would seem advisable to make the number the same in both clauses, if any number be specified. We are rather inclined to think it would be better not to specify a number. In that case the clause should be modified by substituting for the words "or any number or class. "of persons exceeding ten" the words "or any class of persons." 207. We do not find any observations upon the provisions regarding abetment Clauses 95 and 96. by conspiracy which appear to require notice, except the remark of Mr. Norton that "the conspiracy to commit an offence, say murder, is an offence, though "nothing is done," which we have to note as a mistake; and his objection to Clause Clause 96, on the ground that the same punishment applies to the most trivial acts, and to acts by which the object of the conspiracy may have been all but effected. The weight of the objection will be easily estimated when it is perceived that there is purposely no minimum limit to the punishment, to admit of the Judge exercising a discretion, and applying "to the most trivial" acts the most trivial punishment. The objection holds, for as much as it is worth, in every instance in which a discretion is left to the Judge. Report on the Indian Penal Code. 208. We have stated above that we understand Clause 97, regarding abetment Clause 97. by aid, to comprehend persons who by the English law are constructively considered to be principals in the second degree, though not present, and not having any hand in causing the effect which constitutes the offence. Mr. Norton "presumes that abetment by doing an act, or by illegal omission of an act, in "actual substantive aid of an offence, is really meant. We believe that he does not mean substantive aid by actual assistance in the perpetration of the offence, but some actual though not direct aid by which the perpetration of the offence has been facilitated, in contradistinction from what, he says, the literal construction of the clause imports, namely, that "a person omitting a part of his duty, as by "concealing any act with intention to aid it, although in fact he did not aid in the "design at all, may be punished as though he had aided in an offence (say a "murder) designed and committed." We apprehend that if the murder was committed, and the party omitted what it was his duty to do, with the intention of aiding the commission of the murder, he would be liable to punishment under this clause, whether by such omission he did or did not in fact aid the commission of the murder, and we have no doubt that he ought to be so punished as equally guilty whether his intended aid was effectual or not. 209. Mr. Norton complains of vagueness and uncertainty by the use of such words as "intention," &c. in this chapter, seeming to forget how language has been forced by the constructive interpretations given to the English law on this very head, whereby to satisfy the terms "present," and "aiding," it is held that a person need not be actually present, and need not actually assist. 210. Mr. Norton says he cannot, with every effort, understand the distinction. between the "illegal omission" of a police officer, which facilitates an offence under Clause 97, and the "concealment" of a police officer, which likewise facilitates an offence under Clause 101. The difference appears to us palpable. Under Clause 97, the omission respects what is either doing or is about to be done at the present time, and could not be done, in the case given as an illustration, but for the omission, which is all but a participation. In Clause 101, the Clause 101. concealment refers to a design to commit an offence at a future time, the commission of which the concealment may in a manner facilitate, by not exciting that attention which would probably prevent it; but this is a remote and precarious aid, which, though deserving of punishment, is surely very different from that which is supposed to be rendered in the former case, conducing by an immediate influence and a positive efficacy to the commission of the offence. 211. Upon Clause 97, Mr. J. F. Thomas observes, that as it is worded, it appears to include a case like that of the London police officer, who, by not interfering, suffered the perpetration of a murder, with the view to secure the reward called "blood money," by the after apprehension of the murderer. He remarks that "the officer, however indefensible his conduct, and although his omission probably led to the murder being aetually perpetrated, yet was not in league "with and had no intention of favouring the offenders, which is the essence of "the offence in this clause; but his act, nevertheless, falls apparently within the "definition of aiding' by an illegal omission." We think that such an act or omission does fall, and properly so, within the definition, equally when it is prompted by the mercenary motive by which the London police officer was actuated, as when it proceeds from the desire to favour the offender. The "intention" is the same in either case "to aid the commission of the offence," and that is what constitutes guilt under this clause, whatever may be the motive. It therefore appears that it would be unnecessary to modify the clause, as Mr. Thomas suggests, even if there were any such a system in operation here as that to which he alludes, which we need hardly say there is not. 212. Clause 98 makes the previous abettor of an offence liable to the punishment of a different offence, which may be committed in consequence of his abet 19. F ment Report on the ment of the intended offence, if he knew that such different offence was likely to Indian Penal Code. be committed in the attempt to commit the intended offence. This appears to us to agree substantially with Article 13, Section 4, Chapter I. of the Digest of the English Criminal Law. It differs in making the abettor liable to cumulative punishment, if the intended offence be also committed, according to the principle of this Code. Clause 99. Illustration (b.) (a.) Clause 100. Clauses 101 and 102. Subsequent abet ment. Clauses 103 to 108. Chapter IX. Clauses 177 and 178. 213. Many objections are made to this clause with reference to the condition that the abettor knew that the different offence was likely to be committed. Similar objections are made to other clauses, which we need not particularly notice. They are sufficiently answered, we conceive, by the observations we have already offered in commenting upon the Chapter of General Exceptions with respect to the definition contained in Clause 26. 214. Upon Clause 99, Mr. W. Hudleston remarks, that it "exhibits refinement "bordering upon unintelligibility, wholly out of place in a criminal code, and so worded, that the meaning would escape discovery without the illustrations." The clause appears to us also to be expressed somewhat obscurely, though certainly not to such a degree as to be unintelligible without the illustrations, as Mr. Hudleston avers. These are, however, an important help. 215. The meaning we gather to be, first, that when a person abets the doing of a thing which he knows to be a certain offence, and it is done according to his intention, if from some misconception on the part of the doer his act does not fall within the definition of that offence, the abettor, nevertheless, shall be liable to the same punishment as if the doer could be convicted of that offence; or if in consequence of the abetment, that is, in endeavouring to effect what the abettor intended, something is done which is an offence under one clause of the Code, but would be an offence under another clause, but for some misconception on the part of the doer which mitigates it, from which misconception the abettor is free, the abettor shall be liable to punishment under that other clause. Secondly, that if a person abets the doing of a thing which is an offence, for example, by supplying means for the purpose, and through and in consequence of such abetment, for example, by using the means supplied by him for committing the offence which he intended, a different and more heinous offence is committed intentionally, but without his knowledge, the abettor shall be liable only to the punishment to which he would have been liable, if the offence which he intended had been committed, or to the punishment to which the actual offender would have been liable, but for the intention entertained by him unknown to the abettor, by which his offence was aggravated, so as to subject him to a higher penalty. 216. The principle of the second provision seems to be recognized in Articles 16 and 17, Section 4, Chapter I. of the Digest. 217. If the scope of the clause be as we have understood it, the provisions contained in it would seem to be by no means an unnecessary refinement. 218. The provision contained in Clause 100 appears to us us clearly expedient. 219. Upon the clauses regarding abetment by concealment we see no occasion for remark in addition to what we have already submitted. 220. We come now to the clauses relating to "subsequent abetment," corresponding with what in the English law hitherto has constituted the offence of an "accessory after the fact," an offence which does not appear in the Digest of the Criminal Law Commissioners. "There seems to be no reason," they say in their 7th Report, "for continuing the provisions as to accessories after the fact, "the offences of parties falling within this description at present being for the "most part referable to the class of offences against public justice, we have "dealt with them as such." So, also, in this Code, acts by which, according to the English law, a man would be liable to the punishment of an accessory after the fact," as harbouring and concealing an offender with the intention of preventing him from being taken into custody, are provided for in the chapter "of contempts of the lawful authority of public servants." 66 221. Mr. Norton sweepingly objects to the provisions under this head, on the ground that "so far from being applicable as universal rules, it appears to "his mind impossible to read one of them which could not be in the most obvious. 61 manner |