Abetment**

Definition of Abetment (Section 40 BNS)

Criminal law also deals with the involvement of individuals in the commission of crimes by others. Abetment refers to encouraging, instigating, facilitating, or aiding another person in committing an offence. It is a form of accessory liability before the fact.

Chapter III of the Bharatiya Nyaya Sanhita (BNS) deals with Abetment (Sections 40 to 45), similar to Chapter V of the IPC.

Abetment:

Abetment involves some form of participation or encouragement that leads to the commission of an offence by another person. The abettor does not directly commit the main offence but facilitates or instigates it.

Provision:

Section 40 of the BNS defines Abetment (similar to Section 107 of the IPC): "A person abets the doing of a thing, who— 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 facilitates the commission thereof, is said to aid the doing of that act.

Types of Abetment:

Based on the definition, abetment can be committed in three ways:

Instigation

Instigation involves inciting, provoking, or encouraging a person to do something. It means putting someone up to the act. The instigator plants the idea or encourages the action. The person instigated must be capable of committing the offence. Instigation can be by words, gestures, or any other conduct that influences the other person to commit the act.

Example: Encouraging someone to steal, advising someone on how to commit an assault, persuading someone to commit suicide.

Conspiracy

Abetment by conspiracy involves engaging in a conspiracy with one or more other persons for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy. A conspiracy is an agreement between two or more persons to do an illegal act, or to do a legal act by illegal means. For abetment by conspiracy, merely entering into the conspiracy is not enough; some act or illegal omission must be done in furtherance of the conspiracy.

Example: Two people agree to rob a bank (conspiracy). If one of them then takes steps to gather weapons or plan the escape (an act in pursuance), the other person is guilty of abetment by conspiracy even if they did not directly participate in the act of preparation.

Intentionally aiding

Aiding involves assisting, helping, or facilitating the commission of the act. This can be done by an act or an illegal omission. The aid must be intentional, meaning the abettor intends to facilitate the commission of the act.

Example: Providing weapons to someone knowing they intend to commit murder, keeping a lookout while someone commits a theft, failing to perform a legal duty with the intention of facilitating a crime.

All three forms require a mental element – the intention or knowledge that the act being instigated, conspired for, or aided is likely to lead to the commission of the offence. The abetted act itself need not be completed; abetment of the commission of an offence is punishable even if the offence is not committed.

Abetment of an act which is not an offence by reason of the youth, etc., of the offender

The BNS, like the IPC, clarifies that abetment is punishable even if the person who actually commits the act is not legally capable of committing an offence due to age, mental incapacity, or other factors.

Provision:

Section 41 of the BNS (similar to Section 108, Explanation 3 of the IPC) states that "It is not essential to the commission of the offence of abetment that the act abetted should be committed." (This is the general rule about attempt). Additionally, Section 41 Explanation 2 (similar to Section 108, Explanation 3 in IPC) states: "It is not necessary that the person abetted should be legally capable 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."

Explanation:

This means that if a person instigates, conspires with, or aids a child (who is below the age of criminal responsibility) or a person of unsound mind to commit an act, the abettor is still guilty of abetment, even though the child or insane person is not legally liable for the act itself. The focus is on the abettor's conduct and intention.

Example: A person instigates a child under seven years of age to steal something. The child, being below the age of criminal responsibility, is not liable for theft. However, the adult instigator is guilty of abetting theft.

This ensures that individuals who use others (especially those lacking legal capacity) to commit crimes are held accountable for their conduct.

Abetment of an offence punishable with death or imprisonment for life

The punishment for abetment depends on several factors, including whether the abetted offence is committed and the seriousness of that offence. The BNS provides specific penalties for abetting grave offences.

Provision:

Section 42 of the BNS prescribes Punishment for abetment if the act abetted is committed in consequence and where no express provision is made for its punishment (similar to Section 109 of the IPC).

Section 43 of the BNS prescribes Punishment of abetment if the person abetted does act with different intention from that of abettor (similar to Section 110 IPC).

Section 44 of the BNS prescribes Abettor liable to punishment for act done in consequence of abetment, and for a different act done (similar to Section 111 IPC).

Section 45 of the BNS prescribes Abettor when liable to cumulative punishment for act abetted and for act done (similar to Section 114 IPC).

Specific sections deal with abetment of grave crimes:

Abetment of Mutiny (Section 122 BNS): Specifically penalizes abetment of mutiny by a soldier, sailor, or airman. This is punishable with imprisonment for life or imprisonment up to ten years, and fine.
Abetment of Suicide (Section 106 BNS): Abetting the commission of suicide is punishable with imprisonment up to ten years and fine.
Abetment of suicide of a child or insane person (Section 107 BNS): Abetting suicide committed by a child or insane/delirious/idiot/intoxicated person is punishable with death or imprisonment for life.

General Rule for Abetment of Serious Offences:

If a person abets the commission of an offence punishable with death or imprisonment for life, and the abetted offence is committed in consequence of the abetment, and there is no specific provision for the punishment of such abetment elsewhere, then the abettor shall be punished with the same punishment as is provided for the completed offence (derived from Section 42 BNS, which refers to punishment where no express provision is made elsewhere).

Example: Abetting murder (punishable with death or life imprisonment). If murder is committed in consequence of the abetment, the abettor is liable for the same punishment as the murderer (death or life imprisonment). Similarly for abetting offences punishable with life imprisonment.

If the abetted offence is not committed, but the abettor does any act towards its commission or causes a consequence towards its commission, the punishment is imprisonment up to half of the longest term for the abetted offence, or fine, or both (Section 42(2) BNS).

These provisions ensure that those who facilitate or instigate serious crimes face punishments commensurate with the gravity of the potential or actual harm caused.

Abetment of an offence punishable with imprisonment

The BNS also provides for the punishment of abetment of offences punishable with imprisonment (but not death or life imprisonment).

General Rule:

If a person abets the commission of an offence punishable with imprisonment, and the abetted offence is committed in consequence of the abetment, and there is no specific provision for the punishment of such abetment elsewhere, then the abettor shall be punished with the same punishment as is provided for the completed offence (derived from Section 42 BNS).

Example: Abetting simple theft (punishable with imprisonment up to 3 years). If theft is committed in consequence, the abettor is liable for imprisonment up to 3 years, fine, or both.

If the abetted offence is not committed, and no act is done in consequence of the abetment, but the abetment is of a serious nature (e.g., abetment of a crime punishable with death or life imprisonment), it may still be punishable under specific provisions or the general attempt provision (Section 48) read with abetment sections.

The BNS thus provides a comprehensive framework for punishing abetment, linking the abettor's liability to the nature of their conduct, their intent, and the outcome of the abetted act.

Concealment of design to commit offence punishable by death

Concealing a plan or intention to commit a serious offence, with the intent or knowledge that such concealment will facilitate the commission of the offence, is criminalized as a form of abetment by concealment.

Provision:

Section 46 of the BNS defines Concealing design to commit offence punishable with death or imprisonment for life (similar to Section 118 of the IPC): "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 illegal omission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design, shall, if that offence be committed, be punished with imprisonment of either description for a term which may extend to seven years, or, if the offence be not committed, with imprisonment of either description for a term which may extend to three years; and in either case, shall also be liable to fine."

Ingredients:

Concealment of a design (plan/intention): Hiding the existence of a plan to commit a specific offence.
Voluntarily: The concealment must be voluntary.
By act or illegal omission: Can be done by actively concealing or by failing to disclose when there is a legal duty.
Intent or Knowledge: Intending to facilitate the commission of the offence OR knowing it to be likely to facilitate the commission by such concealment.
Offence: The concealed offence must be punishable with death or imprisonment for life.

Example: A person becomes aware of a plan to commit murder or robbery (offences punishable with death or life imprisonment) but deliberately conceals this information from the authorities, knowing that this will help the perpetrators in their plan. The punishment depends on whether the planned offence is actually committed.

This section also covers making false representations about such a design with the intent or knowledge that it will facilitate the offence. It is a form of abetment by concealment or misrepresentation concerning serious crimes, penalizing those who fail to prevent grave offences by withholding crucial information.

Related sections deal with concealing design to commit offence punishable with imprisonment (Section 47 BNS, similar to Section 119 IPC), where the concealed offence is less serious, and concealing a design to commit an offence which the abettor is bound to prevent if the offence is committed (Section 45 BNS, similar to Section 114 IPC - overlaps with Section 46). These provisions collectively address the criminal liability for aiding the commission of offences through intentional concealment of plans or designs.