Venkatasubba Rao, J.
1. The first accused was convicted of the offence specified in Clause (3) of Section 42 of the Prisons Act, Act IX of 1894. He was a prisoner at the Penitentiary and the second accused an uncle of the first accused who received a wire from a relation at Coimbatore which contained matters pertaining to the first accused, wrote a message on the back of the telegram intending that that writing should be read by the first accused, and handed the telegram to a jail warder who was employed to, and did, carry the telegram to the first accused in the jail. The latter, thereupon, read the telegram as well as the communication written on the back of it and wrote a reply on the back of the same telegram and handed it to the warder for being carried to the second accused. The Chief Presidency Magistrate convicted the first and the second accused of an offence under Section 42 of the Prisons Act and sentenced each of them to pay a fine of Rs. 200.
2. The material portion of the section is as follows:
Whoever... communicates or attempts to communicate with any prisoner shall, on conviction before a Magistrate, be liable to imprisonment. 'Mr. V. L. Ethiraj, who appears for the accused, admits that the second accused has committed the offence but says that the sentence passed on him is unduly severe. As regards the first accused, he contends that it is communication with a prisoner that made it an offence under the section and that it makes only the person who communicates with a prisoner liable to punishment and that a prisoner cannot communicate with himself and that a prisoner cannot, therefore, commit the offence described in Clause (3) of Section 42. But the question still remains whether a prisoner may not abet the offence, for, the same section provides that whoever abets any offence shall also be liable to punishment. The word 'abet' is not defined by the Prisons Act, but the General Clauses Act X of 1897, provides that the word 'abet' shall have the same meaning as in the Penal Code. Under Section 107 of the Indian Penal Code 'a person abets the doing of a thing who intentionally aids, by any act, doing of that thing'. It is quite possible for a person to communicate with a prisoner without the latter's aid or co-operation; for instance, a person may walk into the jail and when the prisoner has no intention to speak to him or does not even expect that the stranger will speak to him, the latter may do so, and the prisoner may unintentionally, without even an effort, hear the words spoken. Or, to take another instance, the prisoner may find by accident a piece of paper which has been introduced into his cell without his knowledge, and picking it up, he may find that it contains a message for him. In these two instances the person who communicates with the prisoner has committed that offence but the communication is made without the co-operation of the prisoner. But, if the prisoner is aware that a certain piece of paper contains a communication intended for him, receives it from the warder and reads it, I am inclined to think that he has, by his active co-operation, aided the commission of the offence for he, by his acts, facilitated the commission of it, and, in fact, the commission of the offence would have been impossible without the active participation in it of the prisoner himself.
3. In the present case, not only did the prisoner read the letter but he also wrote a reply and handed It to the warder, who was acting in concert with the accused 1 and 2. In the view I have taken, it is unnecessary to consider what the effect of this additional act on the part of the prisoner is. It may be noted that the first accused pleaded guilty and the Magistrate thereupon convicted him but altogther apart from this, I am prepared to hold that he was rightly convicted of an offence under Section 42 of the Prisons Act read with Section 107, I.P.C.
4. As regards the; sentences passed, I have just a word to say. I have been told that the acts described above constituting a breach of prison discipline the first accused was adequately punished under the prison rules and in my opinion, it is not therefore necessary to sentence him to pay more than a nominal fine. I therefore reduce the fine in his case from Rs. 200 to one rupee and direct that, if the fine has already been recovered, the balance shall be refunded to him. As regards the second accused, I am of the opinion that the punishment awarded is unduly severe, and that an imposition of a fine of Rs. 50 will meet the ends of justice and I reduce the fine to Rupees fifty and direct that, if the fine has already been recovered from him, the balance shall be refunded to him.
5. I may add that the learned Crown Prosecutor has very properly not pressed for severe sentences in the circumstances of the case.