A crime may be committed by several persons and in such a situation each person may have a different role in involvement in commission of offence. Sometimes a person may not directly participate in the crime, but enable others to commit crime through other means. The degree of culpability will depend on the role of each one in the commission of crime. In English criminal law distinction is made in the following manner:-
Degree of Culpability
1. Principle
i. In the first degree
ii. In the second degree
2. Accessory
i. Before the fact
ii. After the fact.
1. Principle in the first degree: One who commits the crime or gets the same committed by an innocent agent.
2. Principle in the Second degree: One who is present at the scene and aids and assists in the commission of the crime.
3. Accessory before the fact: One who though absent from the scene of crime, counsels, procures or commands another to commit the crime.
4. Accessory after the fact: One who knowing well that the perpetrator has committed a crime harbours and assists him to escape punishment.
Bharatiya Nyay Sanhita makes no distinction between principle in first and second degree. Accessory before the fact is known as abettor in the BNS. The principle behind the concept of abetment is based on the fact that many time crime would be impossible without the support of some other person. The other person may not actively participate in the commission of crime but still may facilitate the crime.
Generally, the term 'abet' means to assist, advance, aid or help. Supreme Court in Kartar Singh v. State of Punjab, (1994) 3 SCC 569 explained that abetment can be defined an meaning to aid, to assist, to command, to procure, to cousel, induce or encourage others. Section 45-60 of BNS deals with concept of abetment. Section 45 defines 'abetment of a thing'. Section 46 defines 'abettor' Section 45 provides that abetment may be practiced by a person in any of the following way:-
Modes of Abetment
i. By instigation
ii. By engaging persons in conspiracy.
iii. By intentionally aiding or illegal omission.
For example, 'A', a police officer, is authorized by a warrant from a Court to apprehend Z, B knowing that fact and also that C is not Z, willfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.
The essence of abetment is active and intentional assistance of a person to the perpetrator of the offence. Supreme Court in Sanju v. State of Madhya Pradesh, AIR 2002 SC 1998 held that it is essential to keep in mind that while considering the law relating to abetment, the requirement of mens rea is a precondition for liability. However, this position is different in those cases where the statute does not require mens rea. Supreme Court in Kartar Singh v. State of Punjab, (1994) 3 SCC 569 held that where mens rea is not an essential element in substantive offence, the same is alo not necessary in abetment.
Means of abetment
By instigation - Instigation means to provoke, incite or encourage in doing unlawful act. In abetment by instigation, mere will amount to offence and there is no need of any overt act towards the commission of the offence abetted. There need to be a close casual connection instigation and the act committed. Law does not require any particular form of instigation. It can be by conduct also.
Supreme Court in Chitresh Kumar Chopra v. State (Govt. of National Capital Territory of Delhi), AIR 2010 SC 1446 held that if instigation is by words, then words must necessarily and specifically be suggestive of the consequence. A reasonable certainity to incite the consequences must be shown.
It is also not necessary that the offence abetted must be actually committed. It must be noted that mere acquiescence does not amount to instigation. For example, If A says to B I am going to kill C. B replies Do as you wish and bear the consequences'. Later, A kills C. Here B cannot be said to instigate the murder of C. There are however, certain cases where approval of act leads to instigation.
For example, in Queen v. Mohit, (1871) 3 NWP 316, a person followed woman preparing for sati and chanted Rama, Rama. He was held guilty of abetment by instigation to lead that woman to commit suicide.
Approval of an act is another form of instigation. Generally passive approval may not amount to instigation. However, in certain cases such kind of approval have been held to be instigation. For example, where a woman was going to commit sati and members of funeral procession of her husband applauded her by shouting Sati Mata ki Jai, they were held liable to have instigated her to commit sati.
According to Explanation 1 a person who, by willful misrepresentation, or by willful 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.
By conspiracy - A person is said to abet the commission of an offence by conspiracy when he enters into an agreement with one or more persons to do a thing. In abetment by conspiracy it is required that some overt act or omission needs to be done, though actual commission of offence may not happen. A mere agreement will not suffice.
Supreme Court in Kehar Singh v. State (Delhi Administration), AIR 1988 Sc 1883 drew distinction between abetment by conspiracy under Section 107 [Now Section 45 of BNS] and conspiracy under Section 120-A [ Now Section 61(1) of BNS]. In former, a mere combination of persons or existence of agreement in not required. An act or illegal omission should take place in pursuance of a conspiracy. In latter, a mere agreement to commit an offence is sufficient.
By intentional aid - A person is said to intentionally aid the commission of offence when he renders assistance by doing an act or omitting to do an act. As a general rule, for the offence of abetment it is not required that the abetted offence should actually be committed. However, in case of abetment by intentional aid, it is essential that the abetted offence should acutally be committed and further it is also to be proved that:-
1. Offence abetted was committed with the help of aid provided.
2. That aid facilitates the commission of the offence.
According to 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 the act, and thereby facilitates the commission thereof, is said to aid the doing of that act. It must be noted that mere presence of a person at the place of commission of the crime does not amount to 'intentional aid', unless it is shown that the person, through his presence, intended to aid. The words 'intentional aid' warrant active involvement of a person in effecting a crime. Supreme Court in Trilok Chand v. State of Delhi, AIR 1977 SC 666 held that intention to aid the commission of the offence is the gist of the offence of abetment by aid.
Abettor
Section 46 defines abettor. It provides that a person abets an offence:-
i. Who abets either the commission of an offence; or
ii. 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 as that of the abettor.
The difference between Section 45 and 46 is that former covers 'doing of a thing' while latter covers abetment of an offence. If the thing abetted is not an offence then the person abetting will not be termed as abettor within the meaning of this Section.
Explanatory clauses
Explanation 1: - Abetment of illegal omission is also an offence.
Explanation 2: - Commission of abetted act or causing of effect requisite for offence not required.
Explanation 3: - Person abetted need not be capable or having mens rea.
Explanation 4: - Abetment of abetment, of any offence is also an offence.
Explanation 5:- Abettor need not concert with the person executing the act abetted.
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.
For example, A a student instigates B a police officer to illegally abstain from duty to prevent the commission of the cognizable offence which was being committed in his presence. In this case A may not be guilty of offence because A is not bound to prevent the cognizable offence but still he is guilty of abetment of offence.
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. For example, A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder.
Explanation 3: It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.
For example, A with a guilty intention, abets a child to commit an act which would be an offence, if committed by a person capable by law to commit an offence. Here A is guilty of abetment, whether or not the offence is committed. In this case the child is not capable by law to commit an offence but still A will be guilty of abetment.
Explanation 4: The abetment of an offence being an offence, the abetment of such an abetment is also an offence.
For example, A instigates B to instigates C to murder Z. B accordingly instigates C to murder Z and C commits the offence. In this case A is also liable to be punished for abetment.
Explanation 5: It is not necessary for the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. [refer to illustration to Explanation 5]
Abetment of offences outside India
Section 47 provides that a person abets an offence who, in India, abets the commission of any act without and beyond India which would constitute an offence if committed in India. For example, A in India, instigates B, a foreigner in Nepal, to commit a murder in Nepal. A is guilty of abetting murder.
Abetment outside India for offences in India
Section 48 is a newly introduced provision. It provides that a person abets an offence within the meaning of this Sanhita who, without and beyond India, abets the commission of any act in India which would constitute an offence if committed in India. For example A in UK, instigates B, to commit a murder in India. A is guilty of abetting murder.
Liability of abettor when offence abetted is committed
Liability of abettor when offence abetted is committed is categorized in the following ways:-
1. Offence abetted committed in consequence of abetment [Section 49].
2. Person abetted does act with different intention from that of abettor [Section 50]
3. One act abetted but different act done [Section 51]
4. Act abetted committed but different effect caused [Section 53]
5. Abettor present at the time and place of commission of offence [Section 54]
Offence abetted committed in consequence of abetment:
Section 49 provides that whoever abets any offence shall:-
i. If the act abetted is committed in consequence of the abetment; and
ii. No express provision is made by this Sanhita for the punishment of such abetment,
iii. Be punished with the punishment provided for the offence.
According to Explanation, an act or offence is said to committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment. The liability of the abettor has been made co-extensive with the principal provided that the act is committed in consequence of abetment and has not been expressly made punishable by any other provision of the Bharatiya Nyaya Sanhita.
Supreme Court in Sohan Lal @ Sohan Singh v. State of Punjab, AIR 2003 SC 4466 held that an offence under Section 109 [now 49 of BNS] actually constitutes a substantive offence and it may be so charged. It creates a distinct offence though punishable in the context of other offences.
Person abetted does act with different intention from that of abettor
Section 50 provides that if the person abetted does an act with different intention or knowledge from that of the abettor, then the abettor will be punished with punishment provided for the offence which would have been committed if the act had been done with the intention or knowledge of the abettor.
One act abetted but different act done
Section 51 provides that when an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it.
This provision is only applicable when the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment. A probable consequence may be explained as an act which is likely, or which can be reasonably expected to follow from another act. If an unusual or unexpected consequence of an act which a reasonable man cannot be expected to foresee would follow from such act then such consequence cannot be said to be probable one.
Further, Section 52 provides that if the act for which the abettor is liable under Section 51 is committed in addition to the act abetted, and constitutes a distinct offence, the abettor is liable to punishment for each of the offences.
For example, A instigates B to burn Z's house. B sets fire to the house and at the same time commits theft of property there. A though guilty of abetting the burning of the house, is not guilty of abetting the theft; for the theft was a distinct act, and not a probable consequence of the burning.
Act abetted committed but different effect caused
Section 53 provides that when an act is abetted with the intention on the part of the abettor of causing a particular effect, and an act for which the abettor is liable in consequence of the abetment, causes a different effect from that intended by the abettor, the abettor is liable for the effect caused, in the same manner and to the same extent as if he had abetted the act with the intention of causing that effect, provided he knew that the act abetted was likely to cause that effect.
For example, A instigates B to cause grievous hurt to Z. B in consequence of the instigation, causes grievous hurt to Z. Z dies in consequence. Here, if A knew that the grievous hurt abetted was likely to cause death, A is liable to be punished with the punishment provided for murder.
Abettor present at the time and place of commission of offence
Section 54 provides that whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.
Section 54 creates a rule of joint and constructive liability. If the conditions of Section 54 are fulfilled then the abettor shall be deemed to have committed the offence himself.
Supreme Court in Kulwant Singh v. State of Bihar, (2007) 15 SCC 670 held that actual presence coupled with prior abetment can mean nothing else but participation. In this case it is not essential that abettor should share any common intention with the abetted person or should have actually participated in the commission of the offence. Mere presence would be sufficient to make him liable.
Liability of abettor when offence abetted is not committed
Liability of abettor when offence abetted is not committed is categorized in the following ways:-
Section 55:- Abetment of offence punishable with death or imprisonment for life.
Section 56:- Abetment of offence punishable with imprisonment
Abetment of offence punishable with death or imprisonment for life
Section 55 provides that whoever abets the commission of an offence punishable with
i. Death or imprisonment for life;
ii. Shall, if that offence be not committed in consequence of the abetment; and
iii. No express provision is made by BNS for the punishment of such abetment;
iv. Be punished with imprisonment which may extend to seven years, and shall also be liable to fine.
If any act for which the abettor is liable in consequence of the abetment, and which causes hurt to any person, is done, the abettor shall be liable to imprisonment for a term which may extend to fourteen years, and shall also be liable to fine.
For example, A instigates B to murder Z. The offence is not committed. If B had murdered Z he would have been subject to the punishment of death or imprisonment for life. Therefore A is liable to imprisonment for a term which may extend to seven years and also to a fine; and if any hurt be done to Z in consequence of the abetment, he will be liable to imprisonment for a term which may extend to fourteen years, and to fine.
Abetment of offence punishable with imprisonment
Section 56 provides that whoever abets an offence punishable with imprisonment shall:-
i. If that offence be not committed in consequence of the abetment; and
ii. No express provision is made by BNS for the punishment of such abetment;
iii. Be punished with imprisonment for a term which may extend to one-fourth part of the longest term provided for that offence; or
iv. With such fine as is provided for that offence, or with both.
If the abettor or the person abetted is a public servant, whose duty it is to prevent the commission of such offence, the abettor shall be punished with imprisonment for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for the offence, or with both. For example, A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B's official functions. B refuses to accept the bribe. A is punishable under this section.
Concealing design to commit offence punishable with death or imprisonment for life
Section 58 provides that whoever intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with death or imprisonment for life, voluntarily conceals by any act or omission, or by the use of encryption or any other information hiding tool, the existence of a design to commit such offence or makes any representation which he knows to be false respecting such design shall -
a. If offence is committed: If that offence be committed, be punished with imprisonment of either description for a term which may extend to seven years;or
b. If offence is not committed: If the offence be not committed, with imprisonment of either description, for a term which may extend to three years,
and shall also be liable to fine.
Public servant concealing design to commit offence which it is his duty to prevent
Section 59 provides that whoever, being a public servant, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence which it is his duty as such public servant to prevent, voluntarily conceals, by any act or omission or by use of encryption or any other information hiding tool, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design shall -
a. If the offence be committed, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the longest term of such imprisonment, or with such fine as is provided for that offence, or with both; or
b. If the offence be punishable with death or imprisonment for life, with imprisonment of either description for a term which may extend to ten years; or
c. If the offence be not committed, shall be punished with imprisonment of any description provided for the offence for a term which may extend to one-fourth part of the longest term of such imprisonment or with such fine as is provided for the offence, or with both.
For example, A an officer of police, being legally bound to give information of all design to commit robbery which may come to his knowledge, and knowing that B designs to commit robbery, omits to give such information, with intent to so facilitate the commission of that offence. Here A has by an illegal omission concealed the existence of B's design, and is liable to punishment according to the provision of this section.
Concealing design to commit offence punishable with imprisonment
Section 60 provides that whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with imprisonment, voluntarily conceals, by any act or illegal ommission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design shall,-
a. If the offence be committed, be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth; and
b. If the offence be not committed, to one-eighth, of the longest term of such imprisonment, or with such fine as is provided for the offence, or with both.
There is a change in this provision. Section 58 and 59 of BNS, 2023 corresponds to Section 118 and 119 of IPC respectively. The expression 'or by the use of encryption or any other information hiding tool' has been added in Section 58 and 59 of BNS.
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