EMPEROR Vs. LAVJI MANDAN

JUDGEMENT

(1.) THE offence said to have been committed by the accused consists in his publication of the cover page of his periodical called Garjana, containing an exhortation to the "hindu society" that a "human beast" like the complainant "ought to be done to death like a dog". THE question is whether this instigation of the Hindu public to murder the complainant falls under Section 115 of the Indian Penal Code. Admittedly, it falls under Section 117, which prescribes punishment for abetting the commission of an offence by the public generally, or by any number or class of persons exceeding ten. Section 115 runs as follows : Whoever abets the commission of an offence punishable with death or transportation for life, shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

(2.) IT is contended that this section applies only if no express provision is made by the Code for the punishment of abetment, and since the abetment of the commission of an offence by a class of persons exceeding ten is punishable under Section 117, Section 115 cannot apply. This contention finds support in the ruling of the Lahore High Court in Santa Singh v. Emperor [1933] A. I. R. Lah. 660. In that case Bhide J. , (sitting alone), held that if Section 117 applied, the offence would not fall under Section 115 ; but he observed (p. 660): In the present instance, the speech was addressed to a large audience and in this aspect of the question it might be said that Section 117, Indian Penal Code, is more appropriate, No direct authority is cited and the point is perhaps not free from doubt.

(3.) IT may also be pointed out that if a person abets the commission of murder by the public, and murder is committed in consequence of the abetment, it cannot be said that the offence does not fall under Section 117 of the Indian Penal Code. But the appropriate section for such an offence would be Section 109, though it contains a similar proviso that the section would be applicable if no express provision is made by the Code for the punishment of such abetment. Similarly if, in consequence of such abetment, murder is attempted but only hurt is caused, the appropriate section would be the second paragraph of Section 115.