Exemption from Punishment

For the punishment of this offence it is not necessary that the instigation should have produced its effects: its failure to do so is merely a ground of diminution of the punishment24 .

Where the crime instigated is in fact committed or attempted the instigator is liable to the punishment for the crime so committed or attempted, reduced by one degree.

If the instigation shall have produced no effect, the punishment shall be decreased by one to three degrees. This latter provision constitutes a clear departure from the ordinary principles of complicity. We know that there cannot be complicity unless the offence sought to be instigated etc. has been in fact completed or at least attempted. There is no such a thing as attempted complicity. But here the law considers the instigation as a substantive offence, an offence “sui generis”, even though it has not in fact produced any effect.

Exemption from Punishment

In order to better prevent the grave mischief arising out of the crimes against the safety of the Government already mentioned, the law endeavours to frustrate and break up that concert and assistance among the delinquent without which those crimes would not, as a rule, be perpetrated.

It, therefore, holds out the prospect of impunity to any person concerned in the crime who, before the execution thereof and before any attempt at execution and before any proceeding thereupon, shall reveal the same to the Government or the authorities of the Government25 .

This provision has been the subject of strong criticism on the part of certain writers. By granting impunity to a co-offender - these writers say26 the law sanctions betrayal which all laws should look upon with disfavour, and moreover the law confesses its weakness by invoking the assistance of the delinquent. Furthermore this promise of impunity far from preventing the crime encourages the delinquents to undertake it in

24 Section 59 para. 2 25 Section 60 26 Vide Beccarie. 'Delitti e Pene’, para. 37

the hope that each of them will be able to avoid the punishment by disclosing it when he finds that success is impossible and detection easy.

Against this criticism it is observed that in the interest of the community itself it is extremely useful to sow the seed of diffidence among the delinquents to make them constantly fear so many informers in their confederates. The promise of impunity does not encourage to cowardice except the delinquents themselves and all that which is calculated to dishearten them is useful. Human morality which is based on law and has for its object the maintenance of public good order cannot admit among its virtues the encouragement of loyalty among delinquents. If in open war it is proper to welcome deserters, it is even more prone to do so in a war which is secret and underhand and consists in conspiracies and betrayals.

Nor is it true that the prospect of impunity does not help to prevent these crimes. The offences against the safety of the Government are, as a rule, such that their commission cannot be undertaken by one person alone, and it is reasonable to hold that by instilling the fear that any amongst the delinquents might turn as an informer against the others the necessary concert amongst them may be prevented.

Finally, it would be contrary to the policy of the law inexorably to deny to the persons taking part, for example in a conspiracy, every possibility of escaping the punishment at a time when no actual harm has yet been done, thereby making it their interest to complete the crime for their own sake by at once increasing their chance of complete escape through the success of the crime.

Now in order to benefit by this impunity, the disclosure of the intended crime must be made before such crime is executed or attempted. As the object of the provision is the timely discovery of the project of these crimes and the prevention of their commission, it is clear that such object could no longer be attained if the crime has already been executed or attempted, because in the case of execution the event which it is desired to prevent has already happened, and, in the case of attempt, the overt acts of execution themselves reveal the intended crime and make the disclosure useless. While all this offers no difficulty in respect of crimes which do not become punishable except when the attempt satisfies the ingredients of Section 42 (e.g., under Sections 55, 56) difficulty arises in the case of crimes which are punishable even when the mere agreement as to the means and preparatory measures constitute a crime in