A person may do an illegal act alone or in conjunction with other persons. When several persons take part in doing an act, each one of such persons may act in a manner and degree, different from others. The act may be done by one person and another may stand merely encouraging it and ready to give any help or one person may design the act and while remaining away from the scene of action have it executed by another.
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Then again such other person executing the act may be a willing agent or he may be a person under legal disability, such as, an infant or an insane person and the principles of liability will accordingly vary with differences of situation between collaborations. Crime in concert may take any of the following shapes: —
ADVERTISEMENTS:
(1) One person may persuade another to do an illegal act, give him incitement, advice or aid and the latter may act in pursuance of such advice and be sustained in his design by such aid.
(2) Two or more persons may agree to do an illegal act or acts.
(3) Two or more persons may directly participate in the commission of an act.
The first form of criminal collaboration is known as abetment, the second as conspiracy and the third has no specific name; we may call it the joint commission of an offence. We have studied the principles of joint and several liability in Sections 33 to 38 in Chapter II which apply to principal offenders.
ADVERTISEMENTS:
According to English law, criminals are divided into four classes —
(1) Principal in the first degree.—One who actually commits the crime.
(2) Principal in the second degree.—One who aids and abets the persons who commit the crime at the very time of its commission.
(3) Accessory before the fact. — One who being absent at the time of commission of the offence procures, counsels, commands or abets another to commit it.
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(4) Accessory after the fact.—One who knows that an offence has been committed and receives, relieves comforts or assists the offender.
Under the Indian law, accessories after the fact are known as “harbourers” of offender, and punished as such. The term “harbour” is defined under Section 52-A, as:
Section 52-A. “Except in Section 157 and in Section 130, in the case in which the harbour is given by the wife or husband of the person harboured, the word ‘harbour’ includes supplying a person with shelter, food, drinks, money, clothes, arms, ammunition or means of conveyance, or the assisting of a person by any means, whether of the same kind as those enumerated in the section or not, to evade apprehension”.
The law relating to accessories after the fact is scattered in different sections of the Code. They are for instances, Section 201 (screening the offender from legal punishment); Section 212 (harbouring an offender with the intention of screening him from legal punishment); Section 216 (harbouring an offender who has escaped from custody or whose apprehension has been ordered); Section 216-A (harbouring robbers or dacoits); Section 130 (harbouring of a State prisoner); Section 136 (harbouring a deserter from the Army, Navy or Air Force); and Section 157 (harbouring persons hired for an unlawful assembly). Similarly, a receiver or retainer of property, the possession of which has been obtained by theft or by any other offence of similar kind has been made punishable under Sections 411 and 412 of the Indian Penal Code.
This Chapter lays the law for accessories before the fact. Section 114 of this Chapter lays the law for principal in the second degree. It treats them on the same footing as principals of the first degree, so that abetment strictly speaking under the Indian law is confined to accessories before the fact, though a principal in the second degree may be guilty of abetment as defined in the Code he is classed with the principal of the first degree for purposes of liability.
English and Indian Law:
Under English law criminals are divided in four classes, as, criminal of first degree and second degree, accessories before or after the act. Such classification is not in Indian system. In Indian law abetment is constituted in following way as by instigating a person or by conspiracy or by intentionally aiding a person to commit an offence. Abetment is an offence only if the act abetted is an offence.
This Chapter penalizes abetment as the latter leads to crime and the commission of many offences would be impossible but for the support and encouragement received from others who though do not actively participate but prepare the ground of crime and facilitate the work of criminal.
This Chapter aims at punishing those who have lent their assistance to the commission of a crime. Bentham remarked: The more these preparatory acts are distinguished for the purpose of prohibiting them, the greater the chance of preventing the execution of the principal crime itself.
If the criminal be not stopped at the first step of his career, he may be at the second or the third. It is thus that a prudent legislator, like a skilful general, reconnoitres all the external posts of the enemy, with the intention of stopping his enterprises.
He places, in all the defiles, in all the windings of his route, a chain of works, diversified according to circumstances but connected among themselves, in such manner that the enemy finds in each, new dangers and new obstacles.