1. The offence said to have been committed by the accused consists in his publication of the cover page of his periodical called Garjana, containing an exhortation to the 'Hindu society' that a 'human beast' like the complainant 'ought to be done to death like a dog'. The question is whether this instigation of the Hindu public to murder the complainant falls under Section 115 of the Indian Penal Code. Admittedly, it falls under Section 117, which prescribes punishment for abetting the commission of an offence by the public generally, or by any number or class of persons exceeding ten. Section 115 runs as follows :
Whoever abets the commission of an offence punishable with death or transportation for life, shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
2. It is contended that this section applies only if no express provision is made by the Code for the punishment of abetment, and since the abetment of the commission of an offence by a class of persons exceeding ten is punishable under Section 117, Section 115 cannot apply. This contention finds support in the ruling of the Lahore High Court in Santa Singh v. Emperor A.I.R.  Lah. 660. In that case Bhide J., (sitting alone), held that if Section 117 applied, the offence would not fall under Section 115 ; but he observed (p. 660):
In the present instance, the speech was addressed to a large audience and in this aspect of the question it might be said that Section 117, Indian Penal Code, is more appropriate, No direct authority is cited and the point is perhaps not free from doubt.
3. It seems that the ruling of the Calcutta High Court in Emperor v. Dwarkanath Goswami I.L.R. (1932) Cal. 427 which had then been recently published in : AIR1933Cal47 , was not brought to his notice. That ruling is of a division bench and is just the opposite of the view taken by him. There Jack and Ghose JJ. held that the words 'express provision' in Section 115 referred to sections (like Sections 121 and 131) in which specific cases of abetment of offences punishable with death or transportation for life were dealt with, and Section 117 was not an express provision for the abetment of such an offence. With respect, I prefer to agree with this view.
4. Abetment has a reference both to the person or persons abetted, and to the offence or offences the commission of which is abetted. Section 117 deals with the former whatever be the nature of the offence abetted, while Section 115 deals with the latter, without having regard to the person or persons abetted. It is not disputed that Section 115 is not confined to the abetment of a single person or a specified individual or individuals, and covers the case of the abetment of a class of persons also. It does not apply only if 'no express provision is made by this Code for the punishment of such abetment'. The words 'such abetment' evidently refer to the abetment of the offence specified in the section itself, namely an offence punishable with death or transportation for life, and only Sections 121 and 131 of the Indian Penal Code provide for the punishment of the abetment of such offences. There is no express provision in the Code for the punishment of the abetment of murder. Hence the abetment of the commission of murder, whether by a single individual or by a class of persons exceeding ten, falls under Section 115. In the latter case it may fall under Section 117 also, but as Section 117 prescribes a lesser punishment, Section 115 is the more appropriate provision for such an offence. Although both the sections be applicable, there cannot foe separate sentences under the two sections for the same criminal act, and the conviction, should properly be under that section which inflicts the higher punishment. Section 116 of the Indian Penal Code is similarly worded, and it applies where the offence abetted is punishable with imprisonment. If a class of persons exceeding ten be abetted to commit such an offence, Section 117 also would be applicable. If the offence abetted be theft, and the offence is not committed in consequence of the abetment, the punishment under Section 116 would be only a quarter of three years, that is to say nine months, but under Section 117 it would be three, years. Hence one who abets the public or a class of persons exceeding ten to commit theft should be charged under Section 117 rather than under Section 116. In other words, where a person is found guilty of a criminal act which is punishable under two different sections of the Indian Penal Code, he may be convicted under both the sections, but should be punished only under that section which imposes the higher penalty.
5. It may also be pointed out that if a person abets the commission of murder by the public, and murder is committed in consequence of the abetment, it cannot be said that the offence does not fall under Section 117 of the Indian Penal Code. But the appropriate section for such an offence would be Section 109, though it contains a similar proviso that the section would be applicable if no express provision is made by the Code for the punishment of such abetment. Similarly if, in consequence of such abetment, murder is attempted but only hurt is caused, the appropriate section would be the second paragraph of Section 115.
6. In the present case the accused is charged under Sections 115 and 117 in the alternative, and if it be found proved that he abetted the Hindu public to commit the murder of the complainant, the appropriate section under which he should be convicted is Section 115 of the Indian Penal Code.