NATIONAL LAW UNIVERSITY ODISHA

ABETMENT OF ABETMENT
CRIMINALLAW-I

BATCH OF 2012-2017

MADEBY: -
SHIVANGIGUPTA
12BBA048
 ABETMENT OF ABETMENT

CONTENTS
Introduction: ............................................................................................................................... 4
Research Methodology: ............................................................................................................. 5
Scope: ..................................................................................................................................... 5
Objective: ............................................................................................................................... 5
Research Question: ................................................................................................................ 5
Hypothesis: ............................................................................................................................ 5
Source: ................................................................................................................................... 5
CHAPTER- 1 ............................................................................................................................. 6
1.1 Inchoate offences in India ................................................................................................ 6
1.2 The rationale of inchoate offences : .............................................................................. 7
1.3 Subjectivism and objectivism: ....................................................................................... 8
CHAPTER -2 ............................................................................................................................. 9
2.1 Abetment as in inchoate offence in India: .................................................................... 9
2.1.1 Abetment by instigation: ......................................................................................... 9
2.1.2 Abetment by Conspiracy: .................................................................................... 10
2.1.3 Abetment by aid: ................................................................................................... 11
2.1.4 The significance of mens rea for Abetment: ........................................................... 11
2.2 Inchoate liability: ........................................................................................................... 11
CHAPTER- 3 ........................................................................................................................... 13
3.1 Double inchoate crimes: ................................................................................................ 13
3.3 Abetment of abetment: ................................................................................................... 13
3.4 Abetment of Abetment : a much often conducted crime that ought to be punished : ... 14
3.5 Criticism for Abetment of Abetment (as a punishable offence) outside India: ............. 15
3.5.1 The logical absurdity attached to the double Inchoate Crimes: .............................. 16
3.5.2 Analysis of the Logical-Absurdity Approach: ........................................................ 16
3.6 Notice to offenders and manifested legislative intent: another major problems in double
inchoate crimes. ................................................................................................................... 17
3.6.1 Role of Due process in inchoate liability: ............................................................... 17
3.6.2 The manifested legislative- Intent- Approach :Doctrine explained .................... 18
CHAPTER- 4 ........................................................................................................................... 20
4.1 Recommendations for revision of inchoate-crime statutes to minimize the need for
double inchoate offenses for most of the countries. ............................................................ 20
Conclusion ............................................................................................................................... 21

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Bibliography ............................................................................................................................ 23
Articles: ................................................................................................................................ 23

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INTRODUCTION

The inchoate offences addressed in this Paper are attempt and abetment that attach to specific
special part offences. Inchoate originates from the Latin word inchoare, which in turn
means to start work on. Inchoate offences criminalise behaviour that is working towards, or
leading up to, the completion of a crime. For example if you request another to murder
someone you may be committing Abetment to murder. This inchoate offence is committed
regardless of whether the murder is actually carried out or not. Likewise, if two or more
people agree to murder someone they may be committing conspiracy to murder, and for this
no actual murder is required to take place.

In this case, Murder is the special part offence. Each of the two inchoate offences may attach
to this special part offence depending on the facts and circumstances. Inchoate offences can
be said to be parasitic on special part offences. There is no such offence of simply
abetment; criminal abetment has always something to do with-abettingsomething criminal.
Inchoate offences never exist in isolation. An inchoate offence comes into existence only
when it combines with one or more of the special part offences. Attempt and abetment always
attach to a crime. For example, conspiracy (which forms part of abetment ) is always attached
to either a crime or an unlawful activity.

What is to be questioned is the existence of double inchoate crimes. This is what is answered
in the paper. The focus will be on abetment of abetment as offence under Indian Penal Code,
1860, its importance, the deep criticism from which it suffers based on various established
doctrines and need for revision of the statute to bring in more stability. Also focused is the
case in other jurisdictions which do not provide any statute for the same, and hence suffers
from excessive judicial intervention. Thus, the project in short, tries to explore various
aspects of abetment of abetment as an offence.

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RESEARCH METHODOLOGY

Scope:
The label Abetment of abetment- as a double inchoate crime can be used to describe not
just abetment when they attach or relate to special part offences, but also other inchoate
crimes which have few of the same characteristics when it comes to its criticism or
limitations. The main focus of the paper is in context with Indian Penal Code, 1860 , however
jurisdictions of different countries are time to- time analysed in relation to the topic for the
purpose of better understanding of the subject matter.

Objective:
The main objective of this project is to adopt a two way approach of analysing the topic:
abetment of abetment. First, in respect of the importance of the given offence for enhancing
criminal justice system and second, by taking in account the various criticism and drawbacks
it suffers which in turn will help in recommending to revise the present Indian statute to make
it better.

Research Question:
1) Whether Abetment of abetment as on offence ought to be punished?
2) Whether jurisdictions of other countries criticise or support the validity of double
inchoate crimes in general?
3) Recommendation for revision of the present statute on abetment in Indian Penal
Code,1860 if any, can be made?

Hypothesis:
Double inchoate crimes though can be categorised into many categories, will refer to
abetment of abetment specifically for the purpose of this paper.

Source:
Majority of the information mentioned herein in the paper is written by the author .Secondary
data is relied only for the purpose of Statute reference; for quoting relevant portions of
judgements from the cases mentioned therein; relevant portions from the books ; or for
specific definitions. A unique form of citation is followed.

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The refinement and metaphysical acumen that can see atangible idea in the words
incitement to incite an act is toogreat for practical use. It is like conceiving of the beginning
of eternity or the starting place of infinity.1

CHAPTER- 1

1.1 Inchoate offences in India

The inchoate crimes areexplained in the Indian legal system. Attempt to commit
acrime2 and abetment of commission of thatcrime3 belongs to category of incomplete
crimes or inchoate crimes injurious rather in tendency than in fact - These were also
classified as crimes in interests of social security and well-being .4Inchoate" offenses allow
punishment of an actor even though he has not consummated the crime that is the object of
his efforts.5 Infact, the main purpose why inchoate crimes are punished is to allow the judicial
system to intervene before an actor completes the object crime.6

Most American jurisdictions have the tendency to treat inchoate offenses as

substantive crime, 7distinct and divorced from the completed crimes toward which they
tend.Accordingly,the inchoate crimes of abetment and attempt are broadly defined to
encompass all the acts leading to the commission of any completed crime.

In its wide sense, inchoate liability means the attribution of criminal liability for
conduct leading to, but not occasioning, forbidden consequences.. The criminal law has
general part principles allowing for attempt, and abetment to attach to special part offences
and thus by way of this expanding their scope. The narrower meaning of inchoate liability

1
' Wilson v. State, 53 Ga. 205, 206 (1874).
2
[Attempt to murder is an offence (section 307); so is attempt to commit culpable homicide (section 308); so is
attempt to commit suicide (section 309); so is assault or criminal force in attempt wrongfully to confine a person
(section 357); and so is attempt to commit robbery (section 393)] IPC 1860
3
Section 107-120, IPC 1860
4
In Re: Maragatham alias Lakshmi and Anr. 1961-74-LW678, (1962)2MLJ286
5
For an inchoate offense failure to consummate the ultimate crime, is not essential to conviction
6
For purposes of this paper, an "object" or "target" crime is an offense to which an inchoate or anticipatory
crime relates. An inchoate crime must have another crime as its object.
7
For purposes of this paper, a "substantive" crime is one that is defined by statute or common law to prohibit a
specific act or category of acts. Thus, the term "substantive" clearly covers completed crimes, such as murder.
The broad application of inchoate offenses, however, makes it unclear whether they are substantive crimes or
instead are general doctrinal categories that give courts discretion to extend criminal liability to acts that tend
toward completed offenses.

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includes only the attribution of liabilityfor attempting, and abetting to commit particular
offences. This is called relational inchoate liability or simply relational liability;8 it is a subset
of inchoate liability in the wide sense. Relational liability is the focus of this Paper; it is
concerned with attemptand abetment as relational offences that attach to special part
offences. Inchoate offences developed with time,infact,the courts with the numberand types
of criminal cases it received,felt the need for giving it importance. In R v Higgins,9 at the
beginning of the 19thCentury, was decided by the judges as a case of criminal attempt. It
was, however, a classic case of incitement the defendant encouraged a servant to steal his
masters goods. It can be seen, therefore, as establishing incitement as a distinct inchoate
offence that will attach to special part crimes.

1.2The rationale of inchoate offences :

The idea Retributism and prevention of harm

The two main rationale behind the inchoate offences are:

One justification brings up the truth in respect to how the individual who attempted, or
abetted to murder is as morally at fault as the individual who submitted murder itself. The
chance occasion of the victimized person not dying could be thought to cause no decrease in
the blameworthiness of the individuals who planned him dead by their hands or by the hands
of an alternate. One judge in 2007 when sentencing for an attempted murder is reported as
saying that he failed to see why the defendant should avoid a life sentence merely because
[he] is a bad shot.10

Second method of reasoning of inchoate offenses keeps up that law requirement

operators ought to have the capacity to venture in before crimes are finished and still have the
capacity to process the would-be perpetrators through the criminal justice framework. It is
believed that the objective of harm prevention is better sought after if this is so, as opposed to
if law- enforcement executors need to hold up until the wrongdoing is finished before

8
See McAuley and McCutcheon Criminal Liability (Round Hall Press 2000) ,also See also Law Reform
Commission of Canada Secondary Liability: Participation in Crime and Inchoate Offences (Working Paper 45
1985)
9
(1801) 2 East 5.
10
Man Gets Life Sentence for Attempted Murder The Irish Times 5 May 2007. .

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intervening if they want prosecution to be possible. Putting it an alternate way, one author
attests,

Society should not be required to choose between prevention of the crime and prosecution of
the offender.11
Neither of these rationales might be seen as sufficient on its own. In the event that the
moral culpability reason was the sole method of reasoning, then why is it that intending harm
or hoping for it or other wicked thoughts are not culpable? ? It is not simply evidential
troubles that remained against such a possibility; our criminal law does not aim to criminalise
all bad individuals yet rather, generally, bad individuals who cause harm.

Consistent quest for the harm prevention objective alone might require genuine
thought be provided for criminalizing such conduct as leaving ones own bike opened in the
road, showing significant things in broad daylight etc. In spite of the fact that there are
numerous examples in criminal law of extending liability out from the extensive variety of
relational inchoate risk, the simple inclination to prompt criminal harm does not of itself
make conduct proper for criminalisation

1.3Subjectivism and objectivism:

Strain between subjectivism and objectivism is locked in that by inchoate offenses.

12
Comprehensively what could be said is that subjectivists suggest that criminal defendants
be punished on the groundwork of what responsibility they held and the culpability for
criminal harm. Objectivists13 however say that this worry must be tempered with recognition
of the actual harm individuals have brought about. Inchoate offenses remarkably don't, or
need not, event actual criminal harm. Subsequently what could be gathered is that objectivists
contend for narrow inchoate offenses while subjectivists on the other hand contend for wide.

11
Enker Mens Rea and Criminal Attempt (1977) Am B Found Res J 845, at 850
12
Leading writers include HLA Hart, Glanville Williams, and Andrew Ashworth.
13
Proponents include Oliver W Holmes, Antony Duff.

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CHAPTER -2

2.1 Abetment as in inchoate offence in India:

A person who does not himself commit a crime however may command, urge, encourage,
induce, request or help a third to bring it about and by doing of this, be guilty of an offence of
abetment. Chapter V of the Indian Penal Code, provides for the law governing the liability of
all those considered in law to have abetted the commission of an offence. It is often said that
many crimes are not possible with the co-operation of others. Working with other people,
gives the offender more confidence than he gets it doing it all alone. In this case there is a
clear involvement of a third person who pursues the other to commit the crime. One needs to
identify the degree of involvement of such a person and this is the reason why abetment has
been categorised as a separate offence by the legislature.

Section 10714 says that a person abets the doing of a thing

Firstly, if he instigates any person to do that thing

Secondly, if he engages with one or more persons in any conspiracy for the doing of that
thing, and if by such conspiracy any act or omission takes place in pursuance of that
conspiracy;

Thirdly, if he aids, the doing of that thing.AIR 1953 MB 155

2.1.1 Abetment by instigation:

The meaning of abetment in this part is extremely general in nature. It includes the
active complicity from the abettor at the point of time prior to the actual commission of the
crime and it is the essence of the crime that the abettor should substantially assist the
principle culprit. The abettor gets the act by the guilty agents. Mensrea is a key precondition.
In Shrilal vs.Madhya Bharat, it was held that keeping in mind the end goal to convict an
individual of abetting the commission of wrongdoing, it is not just fundamental to
demonstrate that he has taken part in those steps of transaction which are innocent, but

14
Section 107, Indian Penal Code,1860

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somehow or the other, it is completely important to connect him with those steps of
transaction which are likewise criminal in nature.

The first form of abetment as said above is by way of instigation. To instigate means to
provoke, urge or bring about by persuasion.15 Such instigation may be in any form, law does
not need instigation to be in any particular form, but there must be close casual relationship
between instigation and the act committed.

Illustration: A says to B, I am going to kill C and B replied do you wish and take the
consequence where upon A kills C, B cannot be said to have instigated A.

In the case of Ram Kumar vs. State of Himachal Pradesh,16 it was held that instigation
has a wide meaning, also including instigation by conduct of the husband. It was conduct of
the husband that abetted the commission of rape on wife. In some cases approval of an act
leads to an instigation in a particular circumstance. For e.g. If a women is preparing her for
committing sati and people chant sati mata ki jai, in this case the same shall be a case of
instigation by approval.

2.1.2 Abetment by Conspiracy:

A person is said to abet the commission of a crime by conspiracy, if he enters into an

agreement with one or more persons to do an illegal act and some act is done in pursuance
thereof.

Illustration: A, a servant enters into an agreement with thieves to keep the door of his
masters house open in the night to commit theft. In furtherance of the agreement A keeps the
doors open and theft takes place. A is guilty of abetment by conspiracy.

In the case of Saju vs. State of Karnataka,17 it was held that in order to prove
abetment by conspiracy, the prosecution is required to prove that the abettor has instigated
the doing of a particular thing in conspiracy for doing the illegal act or omission.

15
Instigation as defined by Black Laws Dictionary
16
AIR 1995 SC 1965
17
AIR 2001 SC 175

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2.1.3 Abetment by aid:

A person is said to abet the commission of an offence, if he intentionally renders assistance

or else gives aid by doing an act or omitting to do an act. Mere intention to render assistance
is not sufficient. Aid can be given by both an act of commission as well as an act of illegal
omission.

In the case of Faguna kant Nath vs. State of Assam ,18 a police officer knowing that a
certain person was being tortured for extorting information out of him, kept himself away
from the place, he was held liable for offence of extortion by omission of act.

2.1.4 The significance of mens rea for Abetment:

Mens rea i.e. guilty intention or knowledge- is an element for abetment. Keeping in mind the
end goal to convict an individual of abetting the commission of a crime, it is important to
demonstrate that he has taken part in those steps of the transaction with a guilty mind in
some way or other way .In order to constitute an offence of abetment, there must be
mensrea or community of intention present, there can be no abetment without it and it must
also relate to the crime and the assistance must be something proximate and something more
than a mere passive acquiescence.19 Thus, In, inchoate offences serve to punish on the basis
of, at most, risked or threatened criminal harm posed by an actor with a guilty mind.20

2.2 Inchoate liability:

There are two ways in which a person can be held criminally liable where he or she did not in
fact completely perform a special part offence.21 One way is by relational inchoate liability
a person can be convicted of attempt, or abetment where the target special part offence is not
completed by them or indeed by anyone. The second way is by secondary liability. Where a
person aids, abets, counsels or procures the commission of an indictable offence they can be
tried and convicted as if they themselves committed that offence.22

18
AIR 1959 SC 673
19
Shaik Ibrahim vs The State Of A.P 2005 (1) ALD Cri 163, I (2005) DMC 535
20
Law reform Commision Report ,Canada
21
This draws on Law Reform Commission of Canada Secondary Liability:
Participation in Crime and Inchoate Offences (Working Paper 45 1985) at 1-3.
22
Section 7(1) of the Criminal Law Act 1997

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This means that a person can be found guilty of a special part offence even though
what they did does not in real terms satisfy the definition of offence. Relational inchoate
liability and secondary liability are the two means. The crucial difference between inchoate
liability and secondary liability is that for the secondary liability a special part offence is
necessarily completed, whereas for inchoate liability it is not necessary that any special part
offence is completed. Inchoate liability and secondary liability are treated separately by
academic writings and textbooks. But in practice the two areas overlap, particularly with
instigation and conspiracy. If one person abets another they will be inchoately liable, but this
will convert to secondary liability if the other person goes on to extent of committing the
abetted crime.

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CHAPTER- 3

3.1 Double inchoate crimes:

Against the backdrop of a theory of inchoate liability that focuses on an actors criminal
intent, a few courts have stretched the extent of acts that bring about liability and
subsequently allow intervention, and have authorised indictments and convictions for double
inchoate offenses. Indian Penal Code, however, seldom address the question of whether one
inchoate crime could be the object of another. (However it clearly focuses on abetment of
abetment as an offense) This statutory void in characterizing inchoate-crime ideas has
allowed courts to "pyramid" inchoate crimes to fill the gaps left in penal codes.

In creating double inchoate crimes, the courts exercise an authority, analogous to that
of earlier courts that created common- law crimes,23 to extend liability to actors whos
criminal intent the courts consider sufficiently dangerous or heinous to warrant judicial
intervention. Although the pyramiding of the two traditional inchoate offenses as explained
above could theoretically result in variousdouble inchoate offenses24, however one category
has been the subject matter of extensive criminal litigation and will be discussed further and
that is: abetment of abetment.

3.3 Abetment of abetment:

This is a situation wherein A abets B who further abets C to commit a crime.Under Indian
Penal Code, there is no specific provision for the same ,however the same is punishable by
way of judicial interpretation of the Statute.
Section 107, as stated above talks about Abetment of a thing .Anything- which results in
the commission of the targeted or the resulting crime. This thing could be abetment itself,
giving rise for double inchoate liability to flow in. This has helped the courts to deal with a
large number of cases involving instigating to conspire to commit a crime, instigating to
intentionally aid a crime ,conspiring to instigate another to commit a crime, conspiring to

23
Arnold, Criminal Attempts-The Rise and Fall of an Abstraction, 40 YALE L.J.53, 74-76 (1930)
24
Likewise, cateogories could be attempt to attempt, attempt to conspire, conspiracy to attempt.

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intentionally aid another or else intentionally aiding to conspire to commit a crime. The
discussion in the above context is subjective in nature and differs from case to case. To
understand the rationale behind the foresaid crime and the criticism it faces, it is important to
analyse the following illustrations depicting the same.

A instigates B to conspire with C and D to commit a particular crime. In this case

B,C and D will be liable for conspiracy at first place. But also A will be liable to instigate B
who in turn acted in furtherance of his instigation.( whether A will be liable of the Actual
crime committed or not is dealt later in chapter 3.3 )

Now consider the above situation wherein A was the beginner of the crime who started
the entire process which resulted in commission of the crime. Even though A did not act
himself,but allowed few others to conspire and commit a crime.It is thus important to punish
him as well.This thus calls the need for imposing liability upon people who commit double
inchoate crimes.

3.4 Abetment of Abetment : a much often conducted crime that ought to

be punished :

A person who does not himself commit a crime may however command, urge, encourage,
induce, request or help a third person to bring it about and thereby be guilty of an offence of
abetment.Such a person should be punished in law for having brought the effect of inspiring
another to commit a crime. Now adding to the chain of offenders, there could be yet another
person in the line of events who abets another who in turn abets another( usually the
perpetrator of the crime) to commit the offence so offended. In this case, it is essential to
punish the 1st person in question who brought the idea in place. Absence of his abetment
would have led to the crime not committed at first instance. Though his role is limited to that
of the event far before the commission of the act and is no way related to the actual
commission of crime,it is still necessary to punish him for the idea that penetrated in his mind
which prompted another to abet yet another. It demonstrates a firm purpose on the part of an
individual to act in furtherance of a criminal intent.The mensrea for the same is the specific
intent to urge another who might inspire another to commit a particular completed offense.
Law enforcements agents should be able to step in far before the crime are actually
completed and be able to process the would -be- perpetrators through the criminal justice
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system. They must not wait till the crime is actually committed. The person who abets
orattempts to murder is as morally and legally culpable as the person who commits the
murder. The person who intended harm to another in any way must be held liable. Escorting
him free is like leaving the master mind behind the act not punishable. . The Indian Penal
Code specifies that abetment of an offence is an offence, the abetment of such an abetment is
also an offense25 .Likewise, if A instigates B to instigate C to murder Z .B accordingly
instigates C to murder Z and C commits that offence in consequence of Bs instigation. B is
liable to be punished for his offence with the punishment of murder ( Section 109 ,Indian
Penal Code26) and as A instigated B to commit the offence, A is also liable to the same
punishment .It is irrelevant if the targeted act is actually does or not. To constitute the offence
of abetment, it is not necessary that the effect necessary to constitute the offence should be
caused. It depends on instigation and not its effect upon another ( as provided by Section
108,IPC)

3.5 Criticism for Abetment of Abetment (as a punishable offence) outside

India:
In spite of the use of double inchoate concept (abetment of abetment in particular) by many
federal and state courts, the majority of jurisdictions have not adopted this practice. Decisions
of the nineteenth and early twentieth centuries that criticize convictions for abetment of
abetment as "logical absurdities" remain influential, as evidenced by many courts.

The abstract nature of the logical-absurdity argument, however, has come under
criticism only in recent years by scholars and jurists. Thus, some recent decisions declining to
recognize double inchoate offenses have referred to the absence of express legislative intent
to allow courts the essentially common-law authority to create crimes by combining statutory
inchoate offenses. This argument implies a violation of due process caused by lack of notice
to the defendant. Apart from this, several recent decisions and commentaries have criticized
the use of abetment of abetment- as a separate crime, as cumbersome and unnecessary.

25
Section 108,Indian Penal Code 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 a sthat of the abettor
26
Sec 109,Indian Penal Code is of a general nature and provides that if the act abetted is committed in
consequence of the abetment, the abettor will be held liable for the punishment to the same act as provided for
the offence

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3.5.1 The logical absurdity attached to the double Inchoate Crimes:

27
Wilson v. State, was the first case to denigrate the concept of double inchoate
offenses.Despite criticism of the courts analysis in Wilson,several subsequent decisions have
invalidated double inchoate convictions.

One directionpresents criticism of abetment of abetment as a logical absurdity. First, it

is suggested that the abetment to abetment as a concept gives courts unlimited discretion to
punish acts further removed from a completed offense than an abetment statute does.General
attempt statutes require an overt act done with the intent to commit a completed crime. The
act of abetting is in itself a crime.No person in general would abet another who in further
would abet another to commit crime.The first person at place abets 2nd place with the
knowledge and requirement that the act be done by him himself. The court indicated that
allowing a convictionfor abetment for abetment would be impractical at best and might lead
to the judicial use of further regressions.

3.5.2 Analysis of the Logical-Absurdity Approach:

This idea puts in practise a situation as to how the liability of the first person who abets be
decided under various forms of abetment he indulges in wherein the crime abetted is done
and in cases where the crime is not done. It is too subjective in nature ,and a concrete liability
in such cases cannot be established .Mere giving the same punishment as that of the act in
consequence is too vague because of the lesser degree of indulgence in the crime the abettor
is involved in.

Crimes in the nature of abetment, however, are not merely abstract actions. Rather,
they are substantive offenses combining elements of a completed offense with an intention to
commit that specific offense. Consequently, it is difficult for the courts to evaluate the
danger posed by such acts and decide whether the danger warrants punishment, or
punishment of a lesser severity that that for the completed object offense. Nevertheless,
several recent decisions have characterized double inchoate constructions as invalid without
further analysis28 or as logical absurdities.

27
53 Ga. 205 (1874).
28
See People V duens,64 Cal App. 310,314 ,134 Cal. Rptr. 341, 343 (1976)

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3.6 Notice to offenders and manifested legislative intent: another major

problems in double inchoate crimes.

3.6.1 Role of Due process in inchoate liability:

The development of the due process concept of notice has resulted in the increasing
codification of the criminal law.29Notice requirement herein not only involves that the
legislature explicitly make anact resulting in certain consequences a crime, but also includes
that thescope and penalty of the criminal statute be phrased in explicit and clear terms.

The use of double inchoate concepts (abetment of abetment in our case) allows courts
to exercise an even more extensive common-law type of discretion to punish acts that are not
covered bygeneral inchoate statutes. The doctrine of "no punishment without a statute"
generally requires an explicit legislative directive or manifested legislative intent to punish
conduct.30 . Thus,one can view judicial "creation" of double inchoate crimes as judicial
enactment of criminal law to fit an act already committed. Thus, a court's use of a double
inchoate offense raises a significant question of due process.

In todays context, the judicial system seeks to prevent crime which is not only
through intervention , but also through the secondary purposes of retribution, deterrence and
rehabilitation, It can thus be argued that abetment of abetment as a double inchoate crime is
inconsistent with the principles of retribution and deterrence. Culpability- is the basis of both
the concepts- that is that an individual has the choice of doing good or committing a harmful
act. The element of choice, however is removed if the individual cannot determine whether
an intended act is criminal .An individual by no means can certain the criminality of his act
even with reference to a written statute .Thus, in the absence of a statute explicitly punishing
a defendants conduct, a court must resolve in the defendants favour the issue as to whether
he knew or should have known of the criminality of his done acts. This comes into picture
because in most jurisdictions there is no separate statute for double inchoate offences.( For
the purpose of this project, reference is to abetment of abetment as an offence.)

29
Cass, Ignorance of the Law: A Maxim Re-examined, 17 WM. &MARY L. REV.
671, 686 (1976);
30
Hart, The Aims of the Criminal Law, 23 LAW &CONTEMP.PROB. 401, 415 (1958).

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3.6.2 The manifested legislative- Intent- Approach : Doctrine explained

Courts that have sanctioned double inchoate offenses (including India) necessarily have
assumed that courts can construe a state's criminal code so that one inchoate crime is the
object of another inchoate crime unless the legislature specifically manifests a contrary
intent.31 This doctrine of manifested legislative intent is narrowly positivistic. Common-law
jurisdictions have never taken the rigid position that the criminal law is purely the command
of the sovereign. Instead, courts have been now and then given greater or lesser discretion in
distinguishing criminal from noncriminal conduct. Because the statutory language of inchoate
offenses relies heavilyon common-law concepts, inchoate liability being still an area in which
substantial judicial discretion is proper and is required.

The lack-of-legislative-intent approach, however, raises two valid policy criticisms of

double inchoate offenses. First, because the common law creates double inchoate crimes, the
case by case nature of their development will under most circumstances result in inconsistent
and arbitrary results. Decisions may vary within jurisdictions concerning how far back in the
perpetration continuum a court will impose liability for the same offense.32

Second, a fact finder may improperly base its finding of guilt on, its subjective belief
about an individual actor's dangerousness, rather than on the seriousness of the defendant's
intended crime or his actions toward it. This inclusion of subjective elements in the
determination of liability makes it more difficult to establish settled rules of law.

These perceptions, combined with the infrequent use of double inchoate crimes, also
lessen the deterrent value of double inchoate concepts. It is unclear whether general inchoate
crimes provide any deterrent effect than that which is provided by the object crime. The
manifested-legislative- intent approach, however, implies that notice is the essential basis of
deterrence and assumes some deterrent value in statutory inchoate crimes. 33Consequently, the

31
Only a few courts, however, have stated this proposition explicitly. See United
States v. Mowad, 641 F.2d 1067, 1074 (2d Cir.)
32
In addition, because there are no express terms of punishment for these crimes, there is little to guide a court
in setting sentence other than its perception of a defendant's dangerousness to society. One can argue that such a
subjective criterion is more properly factor in determining punishment than it is in determining liability for an
act. Nevertheless,
this approach creates the potential for widely disparate sentencing for similar offenses.
33
The rationale behind the approach of nullum pene sine crimen is that, although potential criminals are
unlikely to peruse penal codes in deciding whether to commit a crime, it is even less likely that they will look to

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approach focuses the danger in degrading whatever quantum of additional deterrence general
inchoate offenses as such provides.

court decisions establishing the common law of a crime. Thus, it is assumed that the framing of a criminal
offense in a statute is a much more effective means of making the public aware of prohibited acts and their penal
consequences. See McBoyle v. United States, 283 U.S. 25, 27 (1931)

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CHAPTER- 4

4.1 Recommendations for revision of inchoate-crimes statutes to minimize

the need for double inchoate offenses for most of the countries.

If section 107 is revised including a proper criterion for determining the validity of a double
in choate offense ( abetment of abetment in our case), it will be far more easy for the courts to
come to conclusion .The failure of courts that have relied on the logical absurdity and
legislative-intent arguments is that they have ignored the inquiry of whether the acts before
34
them warranted punishment. . Instead, they have started with an investigation of whether
their jurisdictions' substantive inchoate statutes permitted punishment for these acts or not.

A portion of the courts that have acknowledged the legitimacy of double inchoate
crimes, on the other hand, have completed so without satisfactory investigation of their
necessity in light of attempt and abetment statutes. Despite the fact that there areas in which
double inchoate crimes are a useful judicial tool, there are others in which they are
unnecessary.

Presently this revision is subjected to a practical problem. Wherever possible,

legislatures should expand existing inchoate concepts as opposed to causing prosecutors to
resort as a matter of course to prosecutions for double inchoate offenses. Despite an
increasing judicial and scholarly acknowledgement of double inchoate constructions, critical
obstructions to their far reaching use remain. Most jurisdictions do not employ double
inchoate offenses either on the grounds that they have not recognized their use or on the
grounds that they have thought of it and rejected the thought. Furthermore ,the
cumbersomeness of these constructions draws consideration, and in this way makes double
inchoate convictions more readily subject to appellate challenge. Consequently, courts
which are uncomfortable with the reasonable oddity of the double inchoate constructions are
likely to continue on dismissing them.

34
Accompanying text (noting the due process considerations that are present when a judge "creates" double
inchoate crimes in chapter (chapter 2 ,2.1)

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CONCLUSION

Criminal Attempt and Abetment- two inchoate crimes which involve conduct falling short of
the completed object offence. The evolvement of the two was a necessary event for
facilitating and bringing under per view those crimes which remain uncompleted yet furnish
and calls for punishment of those involved in. It is based on the idea that every person who
by any ways and means contributes to the commission of the offence must be punished to
prevent any harm to the society at large Indian Penal Code, 1860 specifically provides the
definition and punishment for both the offence as has been explained earlier.

Double inchoate crimes have emerged as a separate field which calls for punishing
those involved in. It is in itself a difficult area of law , to deal with large number of
incomplete offences which further result in another incomplete offence to the commission of
a completed crime.Indian Penal Code however has addressed this problem in terms of
abetment of abetment under section 108 dealing with abetment of an offence which could be
abetment itself. It is important that every hand and mind involved in the doing of an unlawful
act is punished.

Most jurisdictions have failed to include this as a concept in their respective penal
codes and hence face the difficulty of judicial intervention of every matter that comes to the
court, failing to come out with a concrete law governing the same. For them it is subjective
matter.The concept in itself is too complicated, no doubt, but the absence of the specified
statute makes the job even more difficult.It comes across various criticism of lack of specific
legislative intent and due process because a person must know the criminality of the act he is
indulged in and in absence of the same in most jurisdictions; the concept of double inchoate
crimes comes under scrutiny.

Also, it is important that the present statute on inchoate liability amends its section to
include definite criteria for establishing double inchoate liability to minimise the need for
judicial intervention and for the offense in itself. Section 107 of the Indian Penal Code ,apart
from stressing on what constitutes abetment of abetment ,also must include the criteria and
grounds on which a person indicted must be charged and the kind of liability that could be
imposed upon the offender ( will vary under specific cases or be constant for all). Other

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jurisdictions at first place must come out with a statute governing the same. Judicial
intervention can only lead to varied results without any precedent.
Thus abetment of abetment as a double inchoate crime ought to be punished under all
circumstances and cases, leaving no man behind the origin and facilitation of crime
unpunished, for that forms the basis of any criminal justice system.

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BIBLIOGRAPHY

Articles:
Law Reform Commission of Canada Secondary Liability: Participation in Crime and
Inchoate Offences (Working Paper 45 1985)
Man Gets Life Sentence for Attempted Murder The Irish Times 5 May 2007
Enker Mens Rea and Criminal Attempt (1977) Am B Found Res J 845, at 850
Arnold, Criminal Attempts-The Rise and Fall of an Abstraction, 40 YALE L.J. 53,
74-76 (1930
Ira P. Robbins Double Inchoate Crimes 26 Harv. J. on Legis. 1 1989

Books:
Mike Molan, Cases and Materials on Criminal Law Fourth Edition
Hart, The Aims of the Criminal Law, 23 LAW &CONTEMP. PROB.

Web sources:

http://home.heinonline.org/
http://www.cps.gov.uk/legal/h_to_k/inchoate_offences/
http://www.dejurislawnotes.in/law-notes/ipc-notes-unit-3
http://www.manupatrafast.in/
http://www.jstor.org/stable/pdfplus/10.2307/40236878.pdf?acceptTC=true&accep
tTC=true

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