For the punishment of this offence it is not necessary that the instigation should have produced its effects: its failure to do so is merely a ground of diminution of the punishment24. Where the crime instigated is in fact committed or attempted the instigator is liable to the punishment for the crime so committed or attempted, reduced by one degree. If the instigation shall have produced no effect, the punishment shall be decreased by one to three degrees. This latter provision constitutes a clear departure from the ordinary principles of complicity. We know that there cannot be complicity unless the offence sought to be instigated etc. has been in fact completed or at least attempted. There is no such a thing as attempted complicity. But here the law considers the instigation as a substantive offence, an offence “sui generis”, even though it has not in fact produced any effect.
Exemption from Punishment In order to better prevent the grave mischief arising out of the crimes against the safety of the Government already mentioned, the law endeavours to frustrate and break up that concert and assistance among the delinquent without which those crimes would not, as a rule, be perpetrated. It, therefore, holds out the prospect of impunity to any person concerned in the crime who, before the execution thereof and before any attempt at execution and before any proceeding thereupon, shall reveal the same to the Government or the authorities of the Government25. This provision has been the subject of strong criticism on the part of certain writers. By granting impunity to a co-offender - these writers say26 the law sanctions betrayal which all laws should look upon with disfavour, and moreover the law confesses its weakness by invoking the assistance of the delinquent. Furthermore this promise of impunity far from preventing the crime encourages the delinquents to undertake it in
24
Section 59 para. 2
25
Section 60
26
Vide Beccarie. 'Delitti e Pene’, para. 37
Page 19 of 350