Chandra Reddi, J.
1. This is a petition to quash the commitment of the petitioner for an offence under Section 302, Penal Code read with Section 115, Penal Code, in P. R. C. NO. 11 of 1949 by the Stationary Sub-Magistrate, Kurnool, The charge against the petitioner is that he approached P. W. 1 a doctor with a request to provide him with poison to enable him to kill his mistress with a view to get at her properties. The prosecution case is that one Veeramma who is P. W. 5 in the case has been the mistress of the accused for some years. She has two children, a daughter and a son, and the son being a minor, a court guardian was appointed for the property. The accused who has been on intimate terms with Veeramma and managing her affairs conceived the idea of getting at the property by doing away with her. For that purpose he approached P. W. 1 a doctor practicing in Kurnool with a request to supply him with poison and promised to pay him a sum of Rs. 2000 if the poison asked for was given to him. In spite of the refusal of P. W. 1. to comply with the request of the accused, the latter persisted in his attempt. P. W. 1 reported the matter to the Deputy Superintendent of Police, P. W. 6 on 10th August 1949 who passed on the information to P. W. 7, the local Sub-Inspector of Police. P. W. 7, in order to trap the accused deputed a constable P. W. 2, to go to the house of P. W. 1's dispensary and keep himself inside to overhear the conversation between P. W. 1 and the accused. Accordingly on 12th August 1949, P. W. 2 went to the dispensary of P. W. 1 but the accused did not turn up that day. Next day again he went and remained behind the screen in the same apartment. That day the accused went to the house of P. W. 1, to repeat his request and the doctor as usual refused to comply with it. This was overheard by P. W. 2 who want back to P. W. 7 and reported what had happened. Subsequently the accused was arrested and a charge-sheet was filed against him for an offence under Section 302 read with Section 117, Penal Code.
2. The accused pleaded that he never approached the doctor, P. W. 1, for poison with intent to kill P. W. 5, that P. W. 1 was giving false evidence at the instance of P. W. 5's brother-in-law and other relations of his and that he was not guilty of the offence with which he is charged.
3. Finding that the accused instigated the doctor to abet the accused in the commission of the offence of murder of P. W. 5, the Stationary Sub-Magiatrate Kurnool, committed the accused to Sessions to take his trial on a charge under Section 302, Penal Code, read with Section 115, Penal Code. The accused has preferred this petition to quash the commitment.
4. In this petition it is argued on his behalf that the prosecution evidence on the face of it is incredible and secondly even assuming all that is stated by the prosecution witnesses were true, it does not constitute an offence under Section 302 read with Section 115, Penal Code. Whether the prosecution evidence in the case is such as would commend itself to the trial Judge does not arise for consideration in this petition. So I do not propose to express any opinion on the question of credibility of the prosecution witnesses.
5. The answer to the second contention rests mainly on the construction of Sections 107 and 108 t Penal Code. Section 107, Penal Code, provides that a person abets the doing of a thing, who instigates any person to do that thing. The other portions of that section need not detain me as they have no bearing on the question for consideration before me. Section 108 reads thus:
''A person abets an offence who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.'
Explanation (2) to that section is as follows:
'To constitute the offence of abetment it is not necessary that the act abetted should be committed, or the effect requisite to constitute the offence should be caused.'
The question before me really turns on the interpretation of Expln. (4) to Section 108, Explanation (4) provides that the abetment of an offence being an offence, the abetment of such an abetment is also an offence. Explanation (2) lays down that to constitute the offence of abetment it is neither necessary that the act abetted should be committed nor that necessary effect should be produced. In other words a person who incites another to commit an offence is guilty of the offence of abetment irrespective of the result. The gist of the offence under this explanation is the intention of the wrong-doer.
6. The point for consideration is whether the expression 'abetment of such an abetment' in the latter half of Expln. 4 includes also the instigation of a person who refuses to instigate the commission of an offence. Mr. Basi Reddi, the learned counsel for the petitioner, contends that there can be no abetment of an abetment when the person sought to be abetted refuses to abet the commission of a crime. In support of his contention he cites a passage from Mayne's Criminal Law at page 239 (4th Edn).
'Thus if A asks B to go to a place and instigate C to commit an offence, A commits no offence (unless it be under Section 120B) until C is instigated by B and when B does so, A's offence is complete at the place where the instigation takes place.'
7. On the other hand reliance is placed on Srilal Chamaria v. Emperor, 46 Clause 607 : A.I.R. 1919 Clause 664 : (1919) Cri. L.J. 49, by the learned public prosecutor. In that case the accused, one Srilal, who was the clerk of one Bilas Boy against whom a complaint for trespass, house breaking and theft was filed approached one Karuna Bhusan Banerjee, the Bench Clerk and Interpreter of the Court o the Fifth Presidency Magistrate, Calcutta, with the offer of a bribe for the Magistrate. At first Karuna refused, but when the accused persisted, Karuna reported this to the Chief Presidency Magistrate, who in consultation with the Commissioner of Police laid a trap for the appellant. In pursuance of this decision, Karuna arranged with Srilal for the payment of a bribe on a particular day and informed the police of that. On the appointed day the Inspector concealed himself behind the screen and saw what transpired between Karuna and Srilal and arrested Srilal when money was handed over to Karuna.
8. The question that arose in that case was whether these facts constituted an offence under Section 161 read with Section 116, Penal Code. It was held that Srilal was guilty of the abetment of bribery under Section 161, Penal Code.
9. On a difference of opinion between the two Judges that constituted the Bench, Richard-son J. and Shamsul Huda J. as to the view to be taken of the evidence on record, the matter was referred to a third Judge, Fletcher J. who agreed with the finding of Richardson J. that Srilal Chamaria, the accused in the case, instigated Karuna to induce the Magistrate to accept the bribe and thereby committed the offence under Section 161, Penal Cole, read with Section 116, Penal Code by abetting the abetment of an offence within the meaning of Expln. (4) to Section 108.
10. But all the three Judges were agreed on the question as to the interpretation of the expression 'abetment of such an abetment' occurring in Expln. (4) to Section 108. Referring to the illustration under Expln. (4) to Section 108, Richardson J. observes at page 618 as follows:
' If 'B' instigates C and Z is murdered there is no difficulty. It is not disputed that A. is punishable, but how is he punishable except under Section 109, for abetment of murder? If B instigates C but C refuses to murder Z it is similarly not disputed that A is punishable but he can only be punished under Section 116, again for abetment of murder.
Then comes the case which approaches the present Case. B refused to instigate C and Z is not murdered. A is still guilty of abetment of murder just as he was before. A's criminality is under the Code the same in all three cases. Expln. 2 of Section 108 applies when B does not instigate C just as much as when C does not murder Z. The result would be the same, however long the chain may be between A and Z.
In this view, the abetment of an abetment of an offence is no more and no less than the abetment of that offence. If the second abetment is not committed Expln. 2 applies. This seems to be the only intelligible way of interpreting the language used. The words mean--when the abetment of an offence is punishable under Section 109 or under Section 116, the abetment of such an abetment is also punishable under one or other of those sections as the case may be.'
On this question as I have already observed Shams-ul-Huda J. also took the same view. The following passage from the judgment of the learned Judge at page 627 is apposite :
' It has been contended that under Expln. 4 of Section 108, Penal Code, the abetment of an abetment means the abetment of an act which subsequently ripens into an actual abetment of the principal and not an abetment or incitement merely to incite another when that other has not at all been incited. In other words it is urged that without Earuna inciting the Magistrate the abetment of by Earuna by Srilal did not amount to abetment of an abetment. The language of Expln. 4 is not very clear ..... Having regard to the nature of the charge in this case, the only form of abetment we need consider is abetment by instigation .... I would, therefore, substitute the word 'abetment' by the word 'instigation' and put the question in this form. Was there in this case an instigation of an instigation Having regard to the definition of the word 'abetment' as including both the abetment of an offence as well as the abetment of an act which if committed, would be an offence, the question is whether there was on the part of Srilal an instigation of an actual instigation by Karuna which instigation amounted to an offence, or the instigation of an act which if committed, would have amounted to an offence. It is clear there was in this case no instigation of an actual instigation but if the prosecution story is true, Earuna was instigated to do an act which, if committed, would have been an offence.'
Referring to the passage from Mayne's Criminal Law (4th Edn.) at page 239 which I have already alluded to, the learned Judge stated that expression of opinion was not found in the author's own edition of the book, nor was any authority cited for that proposition.
11. The third Judge Pletcher J. who took the same view as the other two learned Judges on this question stated in the course of his judgment that :
'The words 'when the abetment of an offence is an offence' do not mean 'when an abetment of an offence is actually committed.' They mean when the abetment of an offence is by definition or description an offence under the Code, that is, when an abetment of an offence is punishable under Section 109 or Section 116 or some other provision of the Code, then the abetment of such an abetment is also an offence.'
I express my respectful agreement with the principle laid down in this decision.
12. In Empress v. Troylukonath, 4 Clause. 366: 3 C. L. R. 525, the accused sought the aid of one Cummins who was a godown-keeper of a firm known as Messrs. Mackenzie, Lyall and Co., for committing theft of some hardware belonging to his master. Cummins who did not fall in with this plan informed his master of the same and laid a trap for the accused. In pursuance of this arrangement with his master, Cummins aided the accused in carrying out his object. The accused was charged with theft of goods belonging to the company. But the accused was convicted under Section 116, Penal Code, on the ground that he instigated Cummins to do that which if committed would have been an offence and which falls under Expln. 4 to Section 108, Penal Code- The learned Judges stated that inasmuch as Expln. 2 constituted an offence of abetment, it was not necessary that the act abetted should be committed.
13. The principle laid down in Srilal Chamaria v. Emperor, 46 Clause 607 : A.I.R. 1919 Clause 654 : (1919) Cri. L. J. 49, w/w reiterated in Ghazi Khan v. Emperor, A.I.R. 1934 Pesh. 110 : 152 I. Clause 830. In that case one Sherkhan in order to help a relation of his charged with making a false charge against one Kalandar, wrote a letter to one Razvi Khan to approach the doctor who had to make a report in connection with the charge against Sher Khan's relation and induce him to make a favourable report. Accordingly Razvi Khan approached the servant of the doctor and offered some money to be given to the doctor for making a favourable report. The servant refused to take the money saying that the master would not accept the bribe. This matter having been brought to the notice of the police, Razvi Khan along with Sher Khan was prosecuted for instigating the servant of the doctor to instigate the doctor to accept the bribe. Razvi Khan was found guilty of abetting an unsuccessful attempt to induce a public servant to accept an illegal gratification while Sher Khan was found guilty of abetment of abetment and both of them were convicted under Section 161, Penal Code read with Section 116, Penal Code, though Razvi Khan made only an unsuccessful attempt to instigate the servant of the doctor to instigate the doctor to accept a bribe.
14. In The Empress v. Mt. Bakhtawar, 24 P.R. 1882, referred to both in Ratanlal's Law of Crimes and Sir Hari Singh Gour's Penal Law of India, the facts as can be gathered from these text books are that the accused approached a native doctor with a request to supply her with medicine for the purpose of poisoning her son-in-law, but the doctor refused to comply with her request. She was prosecuted for an attempt to murder her son-in-law, an offence punishable under Section 307, Panal Code. It was held that the offence committed by her was not an attempt to murder as it was a mere act by way of preparation to commit an offence and was not a transaction which would necessarily have ended in murder if not interrupted, but such an act might be held to be an instigating of the native doctor to abet the accused in the commission of the murder, and with reference to Expl. 4 to Section 108, Penal Code, might have been punished under Section 116, Panal Code, read with Section 302 of the same Code. This case is cited with approval in both these text books (see Gour's Penal Law of India, 5th Edn., pp. 414 and 415 and also Ratanlal's Law of Crimes, 16th Edn. page 239). This decision is ad idem with the present case. A passage from the Penal Law of India by Gout dealing with Expl. 2 to Section 108, Penal Code, at page 412 of the sama edition may be usefully extracted : '......--abetment depends upon the instigation and not upon the effect it has up-in another. As was observed in a case the offence of abetment by instigation depends upon the intention of the parson who abets and not upon the sot which is actually done by the person whom ha abeta.........The offence of abetmentis complete with the instigation, notwithstanding that the person abetted refuses to do the thing or doing it the expected result does not follow, or the means which are intended to be employed are such that it is physically impossible that the effect requisite to constitute the offence should be caused by them.'
Dealing with Expln. 4 the author states at p. 413 para. 993 that the abetment of an abetment is an offence when the principal abetment was an offence. Such would be the case where a third parson intervenes between the abettor and the actor. In such a case all that is required is that the substantive abetment must be the abetment of an offence. It is not necessary that such offence should be committed. Then the author refers with approval to the case in Empress v. Troylocko Nath, 4 Clause 366: 3 C. L. R. 525 which I have alrea by referred to.
15. At page 241 of Mayne's Criminal Law of India it is stated that a person instigates a crime who incites and suggests to another to do it or impresses upon his mind certain statements whether true or false with the intention of inducing him to commit a crime. Another passage at p. 242 in the same text book is that it is equally an offence to instigate A to instigate C and so on indefinitely provided the object ultimately is to arrive at somebody who will be influenced to the commission of the crime. Reference may be made to what the author says at p 243:
'The offence of abetment by instigation is complete as soon as the abettor has incited another to commit a crime whether the latter consents or not or whether have consented he does the crime.'
16. In the light of these decisions cited above and the passages in the various text books and after a careful examination of the provisions of Section 107 and Explns. 2 and 4 to 8. 108, Penal Code, I have come to the conclusion that the abetment of an abetment is an offence though the second abetment is ineffective although at first the argument on behalf of the petitioner that no offence as committed when the second abetment was abortive looked very plausible. In this view of the matter, I consider that the passage in Mayne's Criminal Law of India at p. 239 relied on by the learned counsel for the petitioner is not of much importance.
17. For these reasons I hold that the petitioner would be guilty of an offence under Section 302 read with Section 116, Penal Code, if the prosecution case were to be believed.
18. As regards the next contention advanced on behalf of the petitioner, I do not want to ex-press any opinion at this stage as it is likely to prejudice the trial of the case. It is for the Sessions Court to see whether the prosecution evidence can be accepted having regard to the circumstances of the case. There are therefore no grounds to quash the commitment of the petitioner and the petition is dismissed.