punishment is equal to or higher than the latter punishments, the former punishment shall be applied with an increase of one degree.
(c) Public instigation to commit an offence Public instigation to commit an offence is a crime in itself even though the incitement has no effect. Prior to 1909, there was no such general provision in our Code. There was of course the special provision of Section 59, namely incitement to commit offences against the safety of the Government, and there was a provision in Ordinance XIV of 1889 when the incitement was made by means of printed matter. The general provision of Section 69 was added by Ordinance VIII of 1909 and it was drawn from the similar provisions of article 246 of the Italian Penal Code of 1889. It was considered very rightly that the incitement to commit an offence should be punishable not only when it is done by means of the Press but also when it is done publicly by other means. Any such incitement is a threat to public peace because this requires not only that actual injury to the rights of others should be repressed, but also so far as possible that such harm be prevented and obviated. And such prevention is secured by punishing even the mere solicitation or incitement independently from the effect thereof. In dealing with the doctrine of complicity we saw that the instigation or incitement to commit an offence cannot constitute a form of complicity and be punished as such unless the offence instigated or incited is in fact committed or at least attempted: there cannot be complicity in an offence which has not been in fact committed or attempted. But we also saw that apart from any effect produced, such instigation or incitement is, in view of the special danger arising there from, made punishable as an offence "sui generis" in some cases. We are now dealing precisely with one of such cases. The elements of this crime are: i. Publicly instigating ii. to commit an offence Let us first examine what the law means by the word “publicly”. As this provision was modelled, as we have said, on the corresponding provision of the Italian Code, recourse may usefully be made to the commentatore of that Code. In proposing the Page 32 of 350