- (1.)THE appellant was tried and convicted by an Additional Sessions' Judge of Saharanpur on charges framed as follows: Firstly: That, you, on or about the 16th day of September, 1959 in Delhi, abetted the commission of the offence of cheating, by sending accused H. N. Chowdhry to Saharanpur to realise money from the public for the purpose of Kashmir Belief Fund in the name of Central Belief and Social Welfare Committee Delhi by falsely representing himself to be the Vice President of the said Committee and the Hon'ble Prime Minister of India as the Chief Patron of the said Committee, and in consequence of your abetment, accused H. N. Chowdhry cheated and collected Rs. 2/2/ and 1/- from Bagohi, Harnam Singh and Dr. Mohan lal respectively and that you thereby committed an offence punishable under Sections 169 and 420, Penal Code and within the cognizance of the Court of Sessions. Secondly: That, you, on the same date time and place, abetted the commission of the offence of using forged documents as genuine by sending accused H. N. Chowdhry to Sabaranpur to realise money by using as genuine Identity Card and Receipt Ex. ka. 1, which yon knew or bad reason to believe to be forged, and in consequence of your abetment H. N. Chowdhry committed the offence and you thereby committed an offence punishable under Bs. 109 and 471, Penal Code and within the cognizance of the Court of Sessions.
(2.)IT is evident, from a perusal of the above mentioned charges, that the appellant was not charged at all with the formation of a spurious committee for the purpose of collecting "kashmir Belief Fund," but he was charged only with the abetment of offences said to have been committed by his accused H. N. Chowdhry, who was acquitted by the learned Sessions Judge. The main charges were against H. N. Chowdhry for offences punishable under Sections 420 and 467 and 471, Penal Code. It was alleged that H. N. Chowdhry had cheated Sri Bagchi (P. W. 7) and Sri Harnam Singh (P. W. 5) and Dr. Mohan Lal (P. W. 6) by representing to them that he wag the Vice President of the
"central Belief and Social Welfare Committee," established at Delhi under the patronage of the Prime Minister of India. The charge against the appellant were in respect of acts which were intended to help Sri H. N. Chowdhry, the co-accused, in the commission of the above mentioned offences of cheating and using a forged document fraudulently. The appellant was found guilty of abetment punishable under Section 109, Penal Code, which applies only "where the act abetted is committed in consequence," but, H. N. Chowdhry, the principal accused, was acquitted by the learned Sessions Judge on the ground that H. N. Chowdhry himself had been chested by the appellant. It was held that H. N. Chowdhry had committed no offence of cheating himself as he was acting under a ban fide belief that he was doing, quite properly whatever he did for a registered and recognised society under instructions from the appellant.
After discussing evidence in paras 8 to 6, the judgment proceeded:
(3.)THE charges for abetment in the present case are, in my opinion, so closely connected with the offences of cheating and of using a forged document fraudulently, alleged to have been committed by Chowdhry, that a charge for abetment of these offences cannot succeed when the principal offender was held to be innocent. As was pointed out by their Lordships of the Supreme Court, in Faguna Kanta Nath v. State of Assam there are three kinds of abetment denned in Section 107, Penal Code. Firstly, abetment consists of instigation to commit a crime, and this would be an offence whether the crime abetted is committed or not. Secondly, there is abetment by means of a conspiracy which in itself is an offense. Thirdly, there are abetments by aiding the actual commission of an offence. Here, if the act which is alleged to have been facilitated is not an offence, there can be no abetment of an offence. Obviously, the charge against the appellant was for an abetment which could not be an offence if what was abetted was not an offence. If the charge could fall under one of the first two classes of abetment, it could bean offence quite apart from the criminality or otherwise of what was said to be abetted.