1931 (12) TMI 16 - HC - Indian Laws

Accused acquitted of abetment charges under Sections 117, 147, 302 - mere presence without legal duty insufficient

The Calcutta HC acquitted the accused of abetment charges under Sections 117, 147, and 302 of the Penal Code. The accused presided over a meeting where ... - 1. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered by the Court were:Whether the accused could be held criminally liable for abetment under Sections 117, 147, and 302 of the Penal Code for presiding over a meeting where revolutionary songs were sung in sympathy with a convicted murderer.Whether the accused's conduct amounted to abetment by instigation, conspiracy, or intentional aiding by act or illegal omission.Whether mere presence and failure to prevent or forbid the singing of objectionable songs at the meeting constituted an illegal omission or a criminal act.Whether any legal duty was cast upon the accused, as the presiding officer of the meeting, to interrupt or forbid the continuance of the songs.2. ISSUE-WISE DETAILED ANALYSISIssue 1: Whether the accused abetted the offence by instigation or conspiracyThe Court examined the forms of abetment under the Penal Code, identifying three modes: instigation, conspiracy, and intentional aiding by act or illegal omission. The prosecution did not rely on instigation or conspiracy, and no evidence was presented that the accused positively encouraged or persuaded the singing of the revolutionary songs, nor that there was an agreement between the accused and others to that effect. The Court emphasized that abetment by conspiracy requires a prior agreement, which was not alleged or proven.Thus, the Court concluded that there was no basis for abetment by instigation or conspiracy.Issue 2: Whether the accused abetted by intentional aiding through act or illegal omissionThe Court considered whether the accused's conduct could amount to abetment by an act or illegal omission. It was noted that an omission is illegal only if there is a legal duty imposed on the person to act. The Court illustrated this principle by comparing the accused's situation with that of a police officer who has a legal duty to prevent illegal conduct, such as extortion of a confession. An ordinary citizen, however, has no such legal duty.Applying this reasoning, the Court found that the accused, as presiding officer of the meeting, had no legal duty to interrupt or forbid the singing of the songs. Mere presence and failure to act cannot be construed as an illegal omission absent such a duty.Further, the prosecution's suggestion that the accused intentionally abetted by 'permitting' the songs was scrutinized. The Court held that permission must be a positive act, such as expressly allowing the singing after being made aware of its objectionable nature. There was no evidence of such specific permission. Mere silence or inaction does not constitute a positive act or illegal omission.Issue 3: Whether the facts, even if assumed true, amounted to an offence under the lawThe Court explicitly assumed for the sake of argument that the accused was present and that the songs were sung as alleged. Despite this, the Court found no evidence that would amount to an offence under the relevant sections of the Penal Code. The Court acknowledged that the meeting and songs might be morally or socially undesirable but emphasized that the question before it was strictly legal: whether the accused's conduct constituted a criminal offence.The Court concluded that there was no legal basis to hold the accused guilty and accordingly directed an acquittal.3. SIGNIFICANT HOLDINGSThe Court held:'You can abet a person in three ways. You can abet him by instigation... by conspiracy... or by intentionally aiding by an act or illegal omission. The omission must be illegal, and before there can be an illegal omission, there must be a duty cast by the law upon the person said to be guilty of the omission to do something or other.''An ordinary person has only a moral duty and no legal duty in such circumstances, and if he does not perform it, although his action may be morally reprehensible, it is not an illegal omission.''Simply doing nothing is not an act, and unless there is a duty to do something, you cannot say that it is an illegal omission.''Even assuming everything the prosecution says is true, it appears to me that no offence has been made out under the law.'The Court established the core principle that criminal liability for abetment requires either positive instigation, conspiracy, or intentional aiding by act or illegal omission where a legal duty exists. Mere presence or moral disapproval without a legal duty to intervene does not constitute abetment.Accordingly, the final determination was that the accused was not guilty under Sections 117, 147, or 302 of the Penal Code, and the jury was directed to return a verdict of acquittal.