II. Crimes Against Public Tranquility

from all other considerations, that the legal practitioner is in such cases exempt from disclosing the facts by reason of professional privilege, it seems more correct to say that he is so exempt because once the authorities are already aware of the facts there is no necessity for anybody to disclose.

Finally, it is to be noted that according to general principles the knowledge of an intended offence and the failure to disclose the same to the authorities is an offence “per se” and not complicity in that offence if committed. Dealing with complicity last year we saw that the mere concealment of an offence committed or the mere omission to reveal an offence which is known to be planned does not in itself constitute complicity; there cannot be “negative complicity”. In other words, there cannot be complicity without some active proceeding on the part of one person towards the commission of an offence by another. But the interest of public security makes it imperative to prevent the planning or perpetrating of treasonable activities by all means and this is the justification for the severity of the provision concerning the crimes against the safety of the Government.

After dealing with the crimes which directly attempt at the very life of the state, our law passes on to deal with the crimes against the public peace or tranquillity. It would be uttering a commonplace to say that the stability of public order is essential as a binding force of the body politic. Indeed, the maintenance of the public peace is the primary purpose of civil society and, in a sense, all Criminal Law is precisely intended to ensure the peace of the community. Every criminal offence generally speaking is a public wrong in that it causes a public mischief besides the private injury to one or more individuals which it may or may not also cause. This public mischief which in Continental doctrine is known as the "danno morale o mediato" of the offence consists if in nothing worse at least in causing alarm or diminishing in the subjects the sense of their own security. In this sense all criminal offences may be described as injuring the public peace or tranquillity because they all cause an apprehension in the minds of the citizens on account of their possible repetition. But there is a class of offences which produce as their immediate effect a disturbance of the public peace giving rise to a

widespread danger as a direct consequence of the act itself independently of the apprehension of their possible repetition. So that, the alarm and apprehension of violence produced in the minds of the subjects constitute a really immediate public injury irrespective of any ulterior injury to the individual which the agents may have intended to commit. Such violence or appearance of violence undermines those fundamental principles upon which the stability of ordered society of the state, and, therefore of civilization itself, depends.

Most of the provisions now contained in Title II were added in our Code at the suggestion of Andrew Jameson. In the draft which was submitted to him in 1842 the only species of seditious or riotous offences which were included in the Title purporting to deal with offences against the public tranquillity were, as he says in his report30 those of an armed combination to commit any other offence, the carrying of regular weapons without a written licence, and the act of inciting an assembly of ten or more persons to commit an offence. But as he pointed out, there are many acts of a seditious and riotous character which are not necessarily accompanied with an intention to commit an offence or with an armed combination to do so and of which forcible resistance to public officers is by no means an invariable characteristic. It would be contrary to justice as well as to good policy, he goes on to say, to prosecute acts of this kind as subversions of or attempts to subvert the established government by which are meant offences of the nature of high treason; yet they are too injurious to the security of the Government and the public tranquillity to be left altogether unnoticed in a Criminal Code.

The subjects omitted are:

i. Seditious offences of which the injurious nature consists in endeavours to promote public disorder and to endanger the political constitution by engendering discontent in men’s minds against the constitution and the laws or the manner of their administration. These include seditious assemblies, seditious conspiracies, seditious libels, the administering of unlawful oaths for seditious purposes to which may be added incitement to mutiny.

30 Pg. 78