A person abets the doing of a thing who instigates any person to do that thing. When is a person said to instigate the doing of a thing? A person instigates the doing of a thing who, by—
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(i) Willful misrepresentation, or
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(ii) Willful concealment of a material fact (which he is bound to disclose), voluntarily (i) causes or procures, or (ii) attempts to cause or procure the doing of a thing.
The illustration to Explanation (I) elucidates the meaning. The Explanation (I) does not define instigation. It only explains that wilful misrepresentation or wilful concealment may in certain circumstances amount to instigation but it neither defines nor limits the forms which instigation may take.
The word “instigate” means to goad or urge forward or to provoke, incite, urge or encourage to do an act, person is said to instigate another, to an act when he actively suggests or estimates him to the act by any means or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragements.
Thus, where a person gives to an unlawful assembly a general order to beat, it is a case of a direct instigation. The instigation would be indirect when instead of such an order a person raises a slogan “Allah O Akbar” or “Jai Bajrang Bali” or says, “Cowards die many times before their death, the valiant die but once” will intend to provoke.
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A instigates B to commit a crime not by saying so but by harping upon the wrongs he has suffered; it is indirect instigation.
Instigation implies knowledge of the criminality of an act. Illustration to Explanation is an example of instigation by wilful misrepresentation. Instigation by wilful concealment takes place where there is some duty cast obliging a person to disclose fact.
The mere omission to bring to the notice of the higher authorities, offences committed by other persons does not amount to abetment of those offences. It may form the foundation for disciplinary action against him in a departmental way.
Mere failure to prevent the commission of an offence is not by itself an abetment. The law does not require that instigation should be in a particular form or that it should be only in words and may be by conduct; for instance a mere gesture indicating ‘beat’ or a mere offering of money by an arrested person to the constable who arrests him may be regarded as instigation, in one case to beat and in the other to take a bribe.
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An advice can become an instigation only if it is found that it was an advice which was meant actively to suggest or stimulate commission of an offence. To ask a person as a mere threat to really fire a gun without intending that he should really fire it, is not to instigate him to fire the gun.
The threat would become instigation only if it is found that in the event of the threat having no effect the gun should in fact be fired. Mere presence is not instigation. Silent approval, if it has the effect of inciting or encouraging the offence would amount to abetment of the offence. For example, where a woman prepared herself for suttee.
X and Y followed her to the funeral pyre and stood by her repeating Ram, Ram and thereby actually connived and countenanced the act. They were held guilty of abetment.Instigation by letter is complete when its contents become known to the addressee. There is no instigation if letter containing the incitement never reaches to addressee, but in such case attempt to abet would be completed.
In a case of abetment by instigation it is immaterial whether the person instigated commits the offence or not. Considering the definition of abetment, as given in Section 109 of the Code, the instigation must have reference to the thing that was done and to the thing that was likely to have been done by the person who is instigated. It is only if this condition is fulfilled that a person can be guilty of abetment by instigation.