1. In this case one Shib Chand Bhandari was charged with extortion, the extortion being said to consist in taking Rs. 15 from a woman by threatening to bring a charge of theft against her.
2. The petitioner before us, Gopal Chunder Sirdar, was the village chowkidar, and he has been convicted of abetment of the extortion committed by Shib Chand Bhandari.
3. The Deputy Magistrate says in his judgment, 'though it does not appear that he (Gopal Chunder Sirdar) said or did anything in particular, his presence during the occurrence, added to the fact of his not having disapproved of the accused Shib Chand's words and conduct and action, sufficiently indicate the abetment on his part.'
4. We think that the omission on the part of Gopal Chunder Sirdar to disapprove of the conduct of Shib Chand Bhandari, cannot, under the circumstances, be said to amount to abetment. The only portion of the definition in Section 1071 of the Penal Code which can be supposed to apply is the third clause, namely, 'intentionally aids by any act or illegal omission the doing of that thing.' Now, there was no illegal omission on the part of the chowkidar in this case. He was not bound by Section 89 or by Section 90 of the Code of Criminal Procedure to report the offence of extortion; and even if he were so bound, his subsequent omission to report the commission of the offence could not be said to be intentionally aiding the doing of the thing itself which must have been done before it could be reported by the chowkidar.
5. The offence of extortion is not a 'cognizable offence;' and therefore, oven if we suppose that the chowkidar knew the charge of theft to be false, and this does not appear, Section 95 or Section 97 of the Code of Criminal Procedure would not apply.
6. That the chowkidar intentionally aided the commission of the offence of extortion by any act is negatived by the Deputy Magistrate's finding; and we are unable to see that he aided by any illegal omission. We must, therefore, set aside the conviction and sentence.
1[Section 107: A person abets the doing of a thing who:
Abetment of a thing.
First.--Instigates any person to do that thing; or
Secondly.--Engages with one more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation I.--A person who, by wilful misrepresentation or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation II.--Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.]