1. Some revolutionary songs were sung at a meeting whereof the accused was the president. The subject of the meeting was the execution of Ramkrishna Bishwas who had been sentenced to death for murdering a police officer. The accused was tried at the High Court Session by Panckridge, J. and a special jury, and was charged under Sections 117, 147 and 302, Penal Code. His Lordship while charging the jury said; You can abet a person in three ways. You can abet him by instigation. If there was evidence for your consideration that the accused positively encouraged the boy or that he persuaded him to sing these songs, it would be for you to say whether you believed that evidence or not. But there is no evidence of that and the Grown does not rely on that form of abetment. The second form of abetment which the law contemplates is abetment by conspiracy. If these objectionable songs were sung in pursuance of an agreement come to between the accused and Upen, that would be abetment by conspiracy, but this again is not alleged. Thirdly, a person is said to abet the doing of a thing who intentionally aids it by an act or illegal omission. The omission must be illegal, and before there can be an illegal omission, there must be a duty cast by the law upon the person said to be guilty of the omission to do something or other. I have asked the Standing Counsel whether he can point to any duty cast upon any one to interrupt songs or to forbid their continuance, and he has not been able to say that the law casts any such duty upon a person presiding at a meeting.
2. As an illustration, let me tell you this: Supposing two police officers desire to extort a confession and one threatens the accused person and the other stands by and does nothing. The one that stands by is guilty of legal omission because as a police officer it is his duty to stop that sort of thing. It is a duty that law puts upon him. But supposing a police officer has a relation who is not a police officer and the police officer gets a confession in the presence of that relation, then that relation is not guilty of illegal omission because law does not cast upon an ordinary citizen who is not a police officer any particular duty with regard to an accused person.
3. An ordinary person has only a moral duty and no legal duty in such circumstances, and if he does not perform it, although his action may be morally reprehensible, it is not an illegal omission. The Standing Counsel suggests that the accused intentionally abetted the offence by an act. The act which is alleged here is the act of permitting. Of course permission can be a positive act. If there was evidence to show that Upen Das said: ' Here is a song, I want to sing. May I sing it ?' and if this accused having reason to believe that the song was of an objectionable character, allowed it and Upen sang the songs, that would be an act and specific permission. But it appears to me that simply doing nothing is not an act, and unless there is a duty to do something, you cannot say that it is an illegal omission. The upshot of the matter is this: I am the judge of law and you are the judges of facts. I am assuming for the purpose of my direction that the accused was present at the meeting when both the songs were sung; I am assuming that everything the prosecution says is true; even then it appears to me that no offence has been made out under the law.
4. You may think and I may think that these meetings are not particularly desirable: you may think and I may think that it is a travesty of words for a gentleman who professes to believe in nonviolence to preside at a meeting whose purpose is to express condolence with a man who has been convicted of a crime of violence by a competent Court. But you are not concerned with that; nor am I. What I arm concerned with is this: Is there any evidence proper for your consideration which, if you believe it, amounts to an offence against law I hold there is no evidence. Therefore there is no case for your consideration. In these circumstances I direct you as a matter of law to return a verdict of acquittal on both charges. (A formal verdict of not guilty was returned by the jury and the accused was aquitted.)