Material Facts: Petitioner Haradhan Chakrabarty joined Defence Security Corps on 14th September 1967.

. While serving in Defence Security Corps in 1976 at Pathankot, he along with Major Trilok Chand who was serving as their Officer and nine others was charge-sheeted by the Court- martial. The charge against them was that Trilok Chand committed the theft of 250 wheel drums and others abetted him in commission of the said offence. Major Trilok Chand was found guilty and awarded one year imprisonment. Out of the nine abetters, eight abettors were acquitted and petitioner was dismissed from the service with an imprisonment of 90 days in civil prison. Major Trilok Chand questioned the proceedings of the Court- martial before the High Court of Allahabad and the High Court found that there was no material to support the charge of theft. Consequently Major Trilok Chand has been reinstated in the service. Since, the main accused has been acquitted and reinstated in service, the petitioner Haradhan Chakrabarty requested the authorities to review his case and give the necessary relief but his request was rejected. Hence, petitioner Haradhan Chakrabarty filed a writ petition under Article 32 of the Constitution of India against the respondents i.e. Union of India and the Chief of the Army Staff to restore him to service with all consequential benefits and grant of pension.

Issue Involved: If the principal offender is acquitted, whether the abettor can be held guilty or not?

Petitioner Argument:Petitioner contested that since the principal accused Trilok Chand has been acquitted of the charge of theft and has also been reinstated, he who was only charged of abetment of the said offence of theft cannot be found guilty.

In support of his argument he relied upon two cases: Faguna Kanta Nath v. The state of Assam 1 and Jamuna Singh v. State of Bihar.2 Faguna Kanta Nath v. The state of Assam appellant was tried for an offence under Section 165A of the Indian Penal Code for having abetted the commission of an offence by an officer. The said officer was acquitted on the ground that no offence under Section 161 was committed. Consequently the Court held that appellant's conviction for the offence of abetment was not maintainable. In Jamuna Singh v. State of Bihar court held that it cannot be held in law that a person cannot ever be convicted of abetting a certain offence when the person alleged to have committed that offence in consequence of the abetment has been acquitted.

Judgment:Court said that the petitioner was charged with the offence of abetment by conspiracy of the commission of the offence of theft by Major Trilok Chand and High Court has clearly hold that there was no evidence that Major Trilok Chand has committed the theft; therefore, unless the substantive offence against the principal offender is established, the abettor cannot be held guilty. The petitioner is alleged to have entered into a conspiracy alongwith eight others and abetted the commission of the offence and now petitioner alone remains in the picture as one having abetted the offence by entering into conspiracy. In Toppan Das v. The State of Bombay3 : it was held that "two or more persons must be parties to such an agreement and one person alone can never he held guilty of criminal conspiracy for the reason that one cannot conspire with oneself." Court direct the respondents to pay the entire pension, gratuity and other entitlements to the petitioner as per the rules within four months.

Relevant Sections of IPC

Section 107: A person abets the doing of a thing, who
1 2

MANU/SC/0048/1959 MANU/SC/0097/1966 3 MANU/SC/0032/1955

First. Instigates any person to do that thing; or Secondly.Engages with one or 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 1 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 2 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 facilitate the commission thereof, is said to aid the doing of that act.

Section 108: Abettor- 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 of law of committing an offence with the same intention or knowledge as that of the abettor. Explanation 1 The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.

Explanation 2 To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.

Section Analysis:-

In Section 107 second part it was clearly said that : A person abets the doing of a thing, who engages with one or 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. In the case Parmatha Nath Talukdar v. Saroj Ranjan Sarkar4 Supreme Court held that an act or illegal omission should have taken place in pursuance of the conspiracy and in order for the commission of conspiracy conspired for. This case tells us about 2 ingredients for commission of abetment by conspiracy: There must be a conspiracy There must be an act or illegal omission in pursuance of it.

In the case of Haradhan Chakrabarty v. Union of India both the ingredients are absent. In this case principal accused and other 8 abettors are acquitted. Only petitioner alone remains in the picture as one having abetted the offence by entering into conspiracy and since a single person cannot conspire with oneself, it cannot be treated as conspiracy. Secondly, since principal accused was acquitted there is no illegal act or omission and in the absence of substantive offence, the abettor cannot be held guilty. Hence, acquittal of Haradhan Chakrabarty in the above case is justified.

AIR 1962 SC 876