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perceived, only to cases in which the contract with the bearers is lawful. The traveller therefore who resorts to the highly culpable, though, we fear, too common practice of unlawfully compelling persons against their will to carry his palanquin or his baggage will not be protected by it. If they quit him, it is what they have a legal right to do, nor will they be punishable, whatever may be the consequence of their desertion.
• Another species of contract which ought, we conceive, to be guarded by a penal sanction is that by which seamen are bound to their employers. The insubordination of seamen during a voyage often produces fatal consequences. Their desertion in port may cause evils, such as very large damages only could repair. But they are utterly unable to pay any damages for which it would be worth while to sue. If a ship in the Hooghly, at a critical time of the year, is compelled by the desertion of soine of the crew to put off its voyage for a fortnight, it would be mere mockery to tell the owners that they may sue the runaways for damages in the supreme court.
• We also think that persons who contract to take care of infants, of the sick, and of the helpless, lay themselves under an obligation of a very peculiar kind, and may with propriety be punished if they omit to discharge their duty. The misery and distress which their neglect may cause is such as the largest pecuniary payment would not repair. They generally come from the lower ranks of life, and would be unable to pay anything. We therefore propose to add to this class of contracts the sanction of the penal law.
• Here we are inclined to stop. We have indeed been urged to go further, and to punish as a criminal every menial servant who, before the expiration of the term for which he is hired, quits his employer. But it does not appear to us that, in the existing state of the market for that description of labour in India, good masters are in much danger of being voluntarily deserted by their menial servants, or that the loss or inconvenience occasioned by the sudden departure of a cook, a groom, a harkáru, or a khidmatgár, would often be of a very serious description. We are greatly apprehensive that by making these petty breaches of contracts offences, we should give, not protection to good masters, but means of oppression to bad ones.'
The desertion of seamen in port is now provided for by Act I of 1859, secs. 83-88; and Act XIII of 1859 provides for the punishment of fraudulent breach of contract on the part of artificers, workmen and labourers, who have received money in advance on account of work which they have contracted to perform. This Act, which applied in the first instance only to the Presidency towns, has been extended, under sec. 5, to many other parts of British India. It does not apply to contracts for domestic or personal service', and much inconvenience has been felt in consequence. The Inland Emigration Act (I of 1882), secs. 170, 171, 175, provides penalties for absence from work and desertion by labourers in the tea-gardens in certain districts of Bengal and Assam.
The Code, as above remarked, does not provide a penalty for the non-fulfilment of contracts of delivery to Government in times of war or other public need.
PART V. PARTICIPATION.
When two or more persons combine for criminal purposes, we may have, 1. two or more persons merely agreeing to commit an offence (conspirators); 2. two or more principal offenders (accomplices), having a common intention of doing a criminal act and actually doing it; 3. one or more principals with one or more abettors, or what English lawyers call accessories before the fact; 4. one or more principals with one or more accessories after the fact. Each of these combinations may, of course, occur in the same transaction. Thus A and B may conspire to instigate C, D, E, F and G to commit a dacoity, and I may harbour the dacoits.
The provisions of the Code relating to conspirators, accomplices, abettors, and accessories are found in the following sections:
As to conspirators, sec. 107, cl. 2, which declares that whoever engages' with another in a conspiracy to do a certain thing abets the doing of that thing ‘if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing;' sec. 108, expl. 5, which declares that 'it is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it;' and sec. 121 A, which deals with conspiracy to wage, attempt to wage, or abet the waging of war against the Queen, and declares that, to constitute such conspiracy, it is not necessary that any act or illegal omission shall take place in pursuance thereof.
As to accomplices, the Code contains the following provisions :
Sec. 34, which declares that when a criminal act is done by several persons, in furtherance of the common intention of all,
1 3 Ben. A. Cr. J. 32.
each of such persons is liable for the act as if it were done by him alone.
Sec. 35, which declares that whenever an act which is criminal only by reason of its being done with a criminal knowledge or intention is done by several persons, each of such persons who joins in the act, with such knowledge or intention, is liable as if the act were done by him alone with that knowledge or intention.
Sec. 37, which declares that when an offence under the Code is committed by means of several acts, whoever intentionally co-operates in the commission of that offence, by doing any one of those acts, either singly, or jointly with any other person, commits that offence.
Sec. 38, which declares that when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences, by means of that act.
Secs. 310, 311, which punish thugs, that is, persons who habitually associate with others for the purpose of committing robbery or childstealing by means of, or accompanied with, murder.
Secs. 391, 395-400, which deal with robbery committed conjointly by five or more persons, sec. 401, which punishes persons associated for the purpose of habitual theft, sec. 402, which deals with assembling for purpose of committing dacoity, and sec. 460, which declares that all persons jointly concerned in housebreaking by night shall be punishable for death or grievous hurt caused or attempted by one of their number.
As to abettors (socii, Gehülfe), the provisions of the Code are found in
Secs. 107-117 (abet ment).
Sec. 125, abetting the waging of war against Asiatic powers in alliance or at peace with the Queen.
Secs. 131-139, abetting military or naval offences.
Sec. 150, promoting or conniving at the hiring etc. of persons to join unlawful assemblies.
Sec. 164, which provides for abetment by a public servant of the offences defined in secs. 162, 163 (taking presents to influence public servants).
Sec. 236, abetting in British India the counterfeiting of coin out of British India.
Secs. 305, 306, abetting suicide.
Sec. 497, which declares that, in case of adultery, the wife is not punishable as an abettor.
The provisions as to what English lawyers call accessories after the fact (fautores) are contained in
Secs. 136, 137, harbouring deserters.
Secs. 212, 216, harbouring persons convicted of or charged with offences under the Code.
Sec. 318, concealing the birth of a child by secret burying.
Secs. 410-414, receiving or assisting in concealing or disposing of stolen property.
But the Code treats offences under these sections as delicta sui generis.
With the exception of the provisions as to abetment contained in secs. 107-117, none of these enactments seem to require further notice. The offence of abetment is a substantive offence. It is punishable no matter how petty the offence abetted may be. Its punishment, when the offender has been present at the commission of the principal offence, is the same as for that offence (sec. 114), and the trial of it is not in any way dependent on the conviction of the principal offender! So in England since the enactment of 11 & 12 Vic. C. 46, s. I. The offence of abetment mainly depends on the guilty knowledge or intention of the abettor. The knowledge or intention of the person he employs to act for him will not affect or alter the abettor's guilt, although the acts of that person may have an important bearing in determining it. The measure of punishment which the Code awards to abettors depends on the effect of the abetment; a distinction being made between cases in which the abetment is successful, and those in which the effect intended is not accomplished. If the act abetted is done, the abettor is punished as if he had himself committed the offence. If the act abetted is not done, he is punished less severely, but regard is had to the result of his abetment; any hurt which may be caused being deemed an aggravation of his offence. But no distinction seems to be made, as regards the abettor's punishment, between cases in which the person abetted involuntarily fails, or is prevented from carrying his intentions into execution, and those in which he resists altogether the solicitations of the abettor. In other words, instigation is punishable whether it fails or not?
Again, the person abetted may be guilty of a criminal act, and his abettor may in no way be answerable for it, because the act
1 Bom. 18. ? Under the Strafgezetzbuch, instigation (ausforderung) which fails
is punishable only under $ $ 85, 110,
done goes beyond or is quite distinct from the act intended by the a bettor : he must answer for any probable consequence of his abetment, notwithstanding that the act or result may not be precisely what he intended, but he is not further responsible. The question will be this, Is the act done, although not precisely the act intended to be done, yet substantially the same, or a probable result of that act? If so, the abettor must answer for it.
The sort of conduct which constitutes abetment is explained, but no rule is or could be laid down on the subject of the degree of incitement or the force of the persuasion used, which will suffice to make a person an abettor.
The provisions of this, as of all succeeding Chapters, must be read with the foregoing Chapters of General Explanations and General Exceptions. Construed with reference to the latter Chapter, it is clear that those who cannot commit offences cannot be abettors of offences: therefore infants, insane persons and others excepted from criminal liability cannot be abettors .
PART VI. ATTEMPT.
Attempt (conatus), like negligence, is an imperfect state of a Attempt. crime. In the former more is willed than happens; in the latter more happens than is willed. An attempt can only be conceived as intentional, and, under the German Code, it is exempt from punishment if the offender voluntarily desists from the intent before the commencement of the actual crime.
The provisions of the Indian Code as to attempt are found in-
Sec. 124, attempt wrongfully to restrain the Governor-General and other high officials with intent to induce or compel them to exercise or refrain from exercising any of their lawful powers.
Sec. 125, attempt to wage war against the Government of any. Asiatic
power in alliance or at peace with the Queen. Sec. 130, attempt to rescue State prisoners or prisoners of war.
Sec. 161, attempt by a public servant to obtain an illegal gratification.
Sec. 162, attempt to obtain a gratification in order by corrupt or illegal means to influence a public servant.
Sec. 163, attempt to obtain a gratification for exercising personal influence over a public servant.
* M. & M. pp. 83, 84.
? Drage, Criminal Code, 58.