Concealing a design to commit an

120. Whoever intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with imprisonment, voluntarily conceals, by any act or illegal

offence punish able with impri

sonment.

If the offence be committed.

omission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design, shall, if the offence be committed, be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth, and, if the offence be not committed, to one-eighth, of the If not committed. longest term of such imprisonment, or with such fine as is provided for the offence, or with both.

There seems a good deal of confusion in the conception of these two Sections, and, with one exception, it seems difficult to see the difference between the offence aimed at and that of abetting. The facts stated in the illustration to s. 118 clearly amounted to an act by which the doing of the dacoity was intentionally aided, and therefore came expressly under the definition given in s. 107. Should the offence be punished with seven years' imprisonment under s. 118, or with transportation for life under s. 109? The real force of the Sections will arise in the cases alluded to (ante p. 95) under s. 107, where there is no active aid given, but merely passive concealment. These will present no difficulty where there is a positive mis-statement, as, for instance, where a villager, knowing that his neighbour had started off on a gang robbery, should give false answers to the Police as to the man's absence from home, the cause of it, the direction he had taken, the fact of his being armed, or the like. But what will be the law, where he simply abstains from giving information which is in his power? This must come under the words "illegal omission." Now, according to English law, the mere omission to give information is only illegal in the case of treason or felony. This was known by the term misprision, and is defined by Lord Hale (vol. I. 374) as being "when a person knows of a treason or felony, though no party or consenter to it, and doth not reveal it in convenient time." There was no such offence as misprision of a misdemeanour. This distinction is not, however, maintained in the present Code, which applies to the concealment of all offences, except those which are merely punishable with fine. See also s. 123, post p. 104.

It is probable, however, that the word "illegal" is intended to draw the distinction between cases in which an omission of this nature might be lawful, and those in which it might not. It could hardly be contended that a party who hears of an intended robbery is bound to

start off to a distance in search of the Police, in the heat of the day, or the darkness of night, or to the neglect of pressing business. Nor is a person bound to hurry off to communicate an intended crime, of which he has been informed, but upon evidence which he sees reason to doubt. No definite rule can be laid down, but it is clear that in all such cases the certainty of the information, the amount of belief reposed in it, the emergency of the occasion, and the facility for communicating the design to those who would be able to avert it, must all be taken into consideration. The circumstances must almost be such as to render the party accused an accomplice in the guilt of the principal offenders.

Accordingly, in a case where several prisoners were convicted of murder, and the fifth prisoner who was the wife of the murdered man was indicted under s. 118, it appearing that she knew of the intention to murder her husband, and designedly refrained from warning him, with the intention that his death should follow, the conviction was supported by the Madras High Court. (Referred trial 30 of 1868.)

The Code is stricter in its penalties upon public servants (s. 119) who conceal any offence which it is their duty to prevent. In this case every omission is illegal, and justly so, because every such omission is a direct breach of the duty which they are paid to perform. It must be observed, however, that this Section only applies in reference to offences which it was their " duty as such public servants to prevent." It would be no part of the duty of a revenue officer or judicial subordinate to prevent a riot, nor of a Police Constable to see to the accuracy of the village accounts.

Under s. 89 of the Cr. P. C., it is enacted that "every person aware of the commission of any offence made punishable under ss. 121, 121 A, 122, 123, 124, 124 A, 125, 126, 130, 302-304, 388, 392-399, 402, 435, 436, 449, 450, 456-460 of the Indian Penal Code, shall, in the absence of reasonable excuse, the burthen of proving which shall lie upon such person, give information of the same to the nearest Police Officer or Magistrate." See also Cr. P. C. s. 90. post note to s. 182.

Section 89, it will be observed, refers to crimes actually perpetrated, whereas the Sections previously under consideration relate to offences contemplated, but not committed.

CHAPTER VI.

121.

OF OFFENCES AGAINST THE STATE. Whoever wages war against the Queen, or attempts to wage such war, or abets the waging of such war, shall be war, or abetting punished with death, or transportation for life, and shall forfeit all his property.

Waging or attempting to wage

the waging of war against the Queen.

Illustrations.

(a) A joins an insurrection against the Queen. A has committed the offence defined in this Section.

(b) A in India abets an insurrection against the Queen's Government of Ceylon by sending arms to the insurgents. A is guilty of abetting the waging of war against the Queen.

121A.

Whoever, within or without British

Conspiracy to commit offences

tion 121.

India, conspires to commit any of the offences punishable by Section one punishable by Sec- hundred and twenty-one, or to deprive the Queen of the sovereignty of British India or of any part thereof, or conspires to overawe, by means of criminal force or the show of criminal force, the Government of India or any Local Government, shall be punished with transportation for life or any shorter term, or with imprisonment of either description which may extend to ten years.

Explanation. To constitute a conspiracy under this Section, it is not necessary that any act or illegal omission shall take place in pursuance thereof." (Act XXVII of 1870, s. 4.)

The first word of Section 121 is general,-whoever wages war,without any distinction as to British subjects, or otherwise. Upon this the Commissioners remark, 2nd Report, 1847, § 13,

"The Statute of treason is not more specific than this chapter of the Code in regard to the persons subject to its provisions. It says simply, if a man do levy war against our lord the king in his realm, as the Code says, whoever wages war,' &c. The laws of a particular nation or country cannot be applied to any persons, but such as owe allegiance to the Government of the country; which allegiance is either perpetual, as in the case of a subject by birth or naturalisation, or temporary, as in the case of a foreigner residing in the country. They are applicable of course to all such as then owe allegiance to the Government, whether as subjects or foreigners, except as excepted by reservations or limitations. The specification proposed by Mr. Hamilton would exclude foreigners resident in the country. Now, when foreigners enter the country it is supposed that they do so, only upon this last condition, that they be subject to the laws."

The offence of waging war under s. 121 is the same as that which in the English Statute of Treasons-25 Edw. III. st. 5. c. 2—was styled levying war. No specified number of persons is necessary to constitute the offence; three or four will constitute it as fully as a thousand. (Arch. 628.) Though, of course, the smallness of the numbers would be more important as a matter of evidence, for the purpose of negativing any treasonable design. Nor is it necessary to show that

there was any of the usual pageantry of war, such as military weapons, banners, or drums, or any regular consultation before the rising. (Fost. 208.) The possession of arms is indeed spoken of as one of the elements in the offence, but this I conceive is also merely a matter of evidence. Numbers sufficiently overwhelming would make arms unnecessary, or ensure their being speedily obtained. Nor is it necessary that any blows should actually be dealt. "Listing and marching are sufficient overt-acts, without coming to a battle." (Foster 218.)

The mere fact of an armed assembly meeting and marching, or even fighting, will not, of itself, constitute a waging war. It must be by some public and premeditated plan, for some public and general purpose. The law upon this point cannot be better laid down than in the words of the Statute of Edw. III, which was declaratory of the Common Law upon the point, as explained by Mr. Justice Foster. His commentary deserves especial comment from the circumstance that it was accepted as being the authoritative exposition of the law, by the late Lord Campbell, when Attorney-General, and prosecuting for the Crown in a case of High Treason. (Frost's case 9 C. & P. 141.)

66

"The true criterion, therefore, in all these cases is, Quo animo did the parties assemble? For if the assembly be upon account of some private quarrel, or to take revenge on particular persons, the Statute of Treasons hath already determined that point in favour of the subject." 'If," saith the Statute, "any man ride "armed openly, or secretly with men of arms against any other to slay or to rob "him, or to take and keep him till he make fine for his deliverance, it is not the "mind of the King nor his Council, that in such case it shall be judged treason; "but it shall be judged felony or trespass according to the law of the land of old "time used, and according as the case requireth."

"The words of the first clause descriptive of the offence, If any man ride armed openly or secretly with men of arms,' did, in the language of those times, mean nothing less than the assembling bodies of men, friends, tenants, or dependants, armed and arrayed in a warlike manner in order to effect some purpose or other by dint of numbers and superior strength; and yet these assemblies so armed and arrayed, if drawn together for purposes of a private nature, were not deemed treasonable."

"Though the Statute mentioneth only the cases of assembling to kill, rob, or imprison, yet these, put as they are by way of example only, will not exclude others which may be brought within the same rule; for the retrospective clause provideth, that if in such case or other like it hath been adjudged. What are the other like cases? All cases of the like private nature are, I apprehend, within the reason and equity of the act. The case of the Earls of Gloucester and Hereford, and many other cases cited by Hale, some before the Statute of Treasons, and others after it, those assemblies, though attended many of them with bloodshed and with the ordinary apparatus of war, were not holden to be treasonable assemblies; for they were not, in construction of law, raised against the King or his Royal Majesty, but for purposes of a private personal nature."

"Upon the same principle and within the reason and equity of the Statute, risings to maintain a private claim of right, or to destroy particular enclosures, or to remove nuisances, which affected or were thought to affect in point of interest the parties assembled for these purposes, or to break prisons in order to release particular persons without any other circumstances of aggravation, have not been holden to amount to levying war within the Statute."

"And upon the same principle and within the same equity of the Statute,

I think it was very rightly holden by five of the Judges, that a rising of the weavers in and about London to destroy all engine-looms, machines which enable those of the trade who made use of them to undersell those who had them not, did not amount to levying war within the Statute; though great outrages were committed on that occasion, not only in London but in the adjacent countries, and the magistrates and peace officers were resisted and affronted."

"For those Judges considered the whole affair merely as a private quarrel between men of the same trade about the use of a particular engine, which those concerned in the rising thought detrimental to them. Five of the judges indeed were of a different opinion; but the Attorney-General thought proper to proceed against the defendants as for a riot only."

"But every insurrection which in judgment of law is intended against the person of the King, be it to dethrone or imprison him, or to oblige him to alter his measures of Government, or to remove evil councillors from about him, these risings all amount to levying war within the Statute, whether attended with the pomp and circumstances of open war or not; and every conspiracy to levy war for these purposes, though not treason within the clause of levying war, is yet an overt act within the other clause of compassing the King's death. For these purposes cannot be affected by numbers and open force without manifest danger to his person."

"Insurrections in order to throw down all inclosures, to alter the established law, to change religion, to enhance the price of all labour, or to open all prisons-all risings in order to effect these innovations of a public and general concern by an armed force are, in construction of law, high treason, within the clause of levying war; for though they are not levelled at the person of the King, they are against his Royal Majesty; and, besides, they have a direct tendency to dissolve all the bonds of society, and to destroy all property and all Government too, by numbers and an armed force. Insurrections likewise for redressing national grievances, or for the expulsion of foreigners in general, or indeed of any single nation living here under the protection of the King, or for the reformation of real or imaginary evils of a public nature and in which the insurgents have no special interest-risings to effect these ends by force and numbers are, by construction of law, within the class of levying war; for they are levelled at the King's Crown and Royal Dignity." (Foster 208-211.)

And, so, the Indian Law Commissioners say, in their 2nd Report, 1847, § 10, referring to, and agreeing with the view of the English Criminal Law Commissioners.

"In another place the Commissioners say, 'the terms of the Statute seem naturally to import a levying of war by one, who, throwing off the duty of allegiance, arrays himself in open defiance of his Sovereign in like manner and by the like means as a foreign enemy would do, having gained footing within the realm.' So, also, we conceive the terms waging war against the Government' naturally import a person arraying himself in defiance of the Government, in like manner and by like means as a foreign enemy would do."

In a case which is charged as being the offence of waging war, the prisoners are not bound of necessity to show what was the object and meaning of the acts done. The onus rests upon the prosecution, not only to make out the facts, but the motives which constitute the offence. (Reg. v. Frost, 9 C. & P. 129.) These will in general be easily ascertained, since the language and acts of those engaged in the same common enterprise will all be admissible for the general purpose of showing the object and character of the assembly. Accordingly, in the case of Reg. v. Hunt, (5 B. & A. 566) where Hunt and others were indicted for unlawfully meeting together for the purpose of ex