EMPEROR Vs. AHMED HASHAM

JUDGEMENT

(1.) The appellant has been convicted, firstly, under Section 158, and secondly, under Sections 427 and 114 of the Indian Penal Code, and has been sentenced to three months rigorous imprisonment and to pay a fine of Rs. 1000 for the first offence, and to one day's simple imprisonment and to pay a fine of Rs. 1000 or in default three months further rigorous imprisonment for the second offence.

(2.) The facts the prosecution set out to prove are, firstly, that he provoked a riot, and secondly, that he abetted the commission of mischief by a riotous crowd, by inciting it to commit this offence. It is obvious that Section 114 is a mistake, and that it should be Section 109. Section 114 applies where a criminal first abets an offence to be committed by another person, and is subsequently present at its commission. Active abetment at the time of committing the offence is covered by Section 109, and Section 114 is clearly intended for an abetment previous to the actual commission of the crime, any time, that is, before the first steps have been taken to commit it. It is also doubtful in this case, we think, if Section 153 applies. Section 153 is as follows:- Whoever malignantly, or wantonly, by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed, shall, if the offence of rioting be committed in consequence of such provocation, bo punished, &c. Although on direct inspection this section applies to the act of provoking a riot, that is giving occasion by an act or deed, which is illegal, for its occurrence, what the prosecution have relied on is an act of a different character.

(3.) It was sought to prove that the appellant urged the crowd, which on arrival he found already in a riotous temper, to wreck certain Moghul restaurants, that is. be instigated it to riot, and it seems clearly a case to which Section 153, which implies instigation in the sense of causing a riot by an illegal act which originates the feelings of anger of a so far peaceful assembly, does not prima facie apply. Though the distinction may sometimes be hard to draw the offence under Section 153 involves some act of origination of a riot, by doing an illegal act infuriating to the feelings of those who ultimately come to riot, at least some such idea is connoted by the expression "gives provocation" rather than the converse one of abetment. The offence, if any here, was, we think, one under Secs.147 and 109, and not the one found by the learned Presidency Magistrate.