Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Abettor under BNS (S. 46 BNS)
The Bharatiya Nyaya Sanhita, 2023 (BNS), forms the backbone of criminal law in India. It systematically defines offences and prescribes punishments, ensuring uniformity and clarity in the administration of justice. Among its many provisions, Section 46 BNS plays a crucial role in addressing the concept of abetment.
Section 46 BNS specifically defines the term “abettor”, identifying who can be held legally responsible for instigating, engaging in conspiracy for, or intentionally aiding the commission of an offence. The provision broadens criminal liability beyond the person who directly commits the crime, extending it to those who facilitate or encourage the wrongful act.
This section reflects an important principle of criminal jurisprudence: criminal liability is not limited to the principal offender alone. By recognizing indirect participation in crime, Section 46 BNS ensures that individuals who contribute to the commission of offences cannot escape accountability merely because they did not carry out the act themselves.
Abettor under BNS (S. 46 BNS)
Section 46:
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 by law of committing an offence with the same intention or knowledge as that of the abettor.
The definition of an Abettor is laid out in Section 46 BNS. Abettor under this section, means the person who abets (1) the commission of an offence, or (2) the commission of an act, which would be an offence if committed by a person not suffering from any physical or mental incapacity. In the light of the preceding section, he must be an instigator or a conspirator or an intentional helper. An abettor may be either instigator, or a conspirator, or helper in commission of a crime as defined in section 45 BNS.
To constitute an offence of abetment, three things are essential i.e.
- there must be an abettor;
- he must abet; and
- the abetment must be an offence or an act which would be an offence, if committed by a person capable in law of committing an offence with the same intention or knowledge as that of the abettor.
But if the thing abetted is not an offence, the person abetting will not be termed abettor within the meaning of Sec. 46 BNS and cannot be held liable to punishment
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.
If a public servant is guilty of an illegal omission of duty made punishable by the Sanhita, and a private person instigates him, then he abets the offence of which such public servant is guilty, though the abettor, being a private person, could not himself have been guilty of that offence.
Examples:
- A police officer is legally bound to arrest a known offender. B, a friend of the offender, persuades the officer not to make the arrest and promises a bribe. The officer intentionally omits his duty. Even though B was not legally bound to arrest the offender, B has abetted the illegal omission and can be held liable.
- A mother is legally bound to provide food to her minor child. C, knowing this, intentionally advises her not to feed the child in order to cause harm. The mother omits her duty and the child suffers injury. C is guilty of abetment of the illegal omission, even though C had no legal duty to feed the child.
- A government hospital doctor is legally bound to attend emergency patients. E persuades the doctor not to treat a particular patient due to personal enmity. The doctor intentionally refuses treatment. E may be guilty of abetting the illegal omission of the doctor’s legal duty.
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.
Illustrations:
(a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder.
(b) A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers from the wound. A is guilty of instigating B to commit murder.
The question regarding the abettor’s guilt depends on the nature of the act abetted and the manner in which abetment was made. Commission of the act abetted is not necessary for the offence of abetment. The offence of abetment is complete notwithstanding that the person abetted refuses to do the thing, or fails involuntarily in doing it, or does it and the expected result does not follow. The offence of abetment by instigation depends upon the intention of the person who abets, and not upon the act which is actually done by the person whom he abets.
Examples:
- A tells B, “You should kill C,” and provides B with a weapon. B later changes his mind and does not attack C. A is guilty of abetment of murder, even though the murder was never committed.
- D persuades E to steal money from a shop and explains how to avoid detection. E attempts but fails to steal anything because the shop is closed. D is guilty of abetment, even though no property was actually stolen.
- F continuously harasses and instigates G to take his own life. G does not commit suicide. F may still be liable for abetment of suicide, even though the suicide did not occur.
- H persuades a witness to give false evidence in court. Before the witness testifies, the case is withdrawn. H is guilty of abetment, even though no false evidence was ultimately given.
- J gives K poison and instructs him to mix it in L’s food. K refuses at the last moment. J is guilty of abetment, even though L was never harmed.
In Faguna Kanta Nath v. The State, AIR 1959 SC 673 case the Supreme Court said that abetment by intentional aid, unless the person who is abetted is found guilty of the offence charged the abettor cannot be punished.
In State of Maharashtra v. Pandurang Ramji, (1971) 73 BOMLR 245 case, the Bombay High Court said that to constitute an 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 used.
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.
Illustrations:
(a) A, with a guilty intention, abets a child or a person of unsound mind to commit an act which would be an offence, if committed by a person capable by law of committing an offence, and having the same intention as A. Here A, whether the act be committed or not, is guilty of abetting an offence.
(b) A, with the intention of murdering Z, instigates B, a child under seven years of age, to do an act which causes Z’s death. B, in consequence of the abetment, does the act in the absence of A and thereby causes Z’s death. Here, though B was not capable by law of committing an offence, A is liable to be punished in the same manner as if B had been capable by law of committing an offence, and had committed murder, and he is therefore subject to the punishment of death.
(c) A instigates B to set fire to a dwelling-house. B, in consequence of his unsoundness of mind, being incapable of knowing the nature of the act, or that he is doing what is wrong or contrary to law, sets fire to the house in consequence of A’s instigation. B has committed no offence, but A is guilty of abetting the offence of setting fire to a dwelling-house, and is liable to the punishment provided for that offence.
(d) A, intending to cause a theft to be committed, instigates B to take property belonging to Z out of Z’s possession. A induces B to believe that the property belongs to A. B takes the property out of Z’s possession, in good faith, believing it to be A’s property. B, acting under this misconception, does not take dishonestly, and therefore does not commit theft. But A is guilty of abetting theft, and is liable to the same punishment as if B had committed theft.
This explanation makes it clear that the person abetted need not have any guilty intention in committing the act abetted. It applies to abetment generally and there is nothing to indicate that it applies only to abetment by instigation and not to other kinds of abetment. The offence of abetment depends upon the intention of the person he employs to act for him.
Examples:
- A, an adult, tells a 6-year-old child to steal a wallet from a shop and explains how to do it. The child takes the wallet without understanding that it is wrong. The child may not be criminally liable due to lack of capacity, but A is guilty of abetment of theft.
- knowing that C is of unsound mind, persuades C to set fire to a house.
C does so without understanding the nature of the act. Even if C is not legally responsible due to insanity, B is guilty of abetment of mischief by fire. - D hands E a sealed packet and asks him to deliver it to F. E does not know that the packet contains poison intended to harm F. If harm occurs, E may have no guilty intention, but D is guilty as an abettor, because he intentionally used E as an innocent agent.
- G tells H to take a bicycle from outside a house, claiming it belongs to him. H honestly believes G and takes it. H lacks dishonest intention. However, G is guilty of abetment of theft, since he had the necessary criminal intent.
- I induces J (who is protected by legal immunity in a specific situation) to commit an act that would otherwise amount to an offence. Even if J cannot be punished due to legal protection, I may still be liable for abetment.
Explanation 4:
The abetment of an offence being an offence, the abetment of such an abetment is also an offence.
Illustration:
A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and C commits that offence in consequence of B’s instigation. B is liable to be punished for his offence with the punishment for murder; and, as A instigated B to commit the offence, A is also liable to the same punishment.
In view of Explanation, the contention of the accused that there cannot be any abetment of an abetment is unknown to criminal jurisprudence, holds no merits and consideration.
Example:
- A instigates B to murder C. D encourages A to persuade B and even helps A plan how to influence B. D is guilty of abetment of abetment of murder, even though D neither speaks to B nor commits the murder.
- X tells Y to steal property from Z. W advises X to instigate Y and helps X draft a plan. W is guilty of abetting X’s abetment of theft.
- P continuously instigates Q to commit suicide. R encourages P to keep pressuring Q and supports P’s conduct. R is guilty of abetment of abetment of suicide, even though R never directly interacts with Q.
- M persuades N to give false evidence in court. O advises M to influence N and provides arguments to convince him. O is guilty of abetment of M’s abetment of giving false evidence.
- A plans to bribe a public servant to omit his legal duty (abetment of illegal omission). B provides money to A specifically to help A carry out this abetment. B is guilty of abetment of abetment.
Explanation 5:
It is not necessary to 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.
Illustration:
A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C mentioning that a third person is to administer the poison, but without mentioning A’s name. C agrees to procure the poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison; Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. C has therefore committed the offence defined in this section and is liable to the punishment for murder.
This explanation declares that in case of abetment by conspiracy it is not necessary that abettor should conceit the offence with the person who commits it. Mere engagement in conspiracy in pursuance of which the offence is committed, is enough.
- A and B secretly agree to eliminate C. B later hires D to carry out the murder, without D ever meeting A. D commits the murder. Even though A never communicated with D, A is guilty of abetment by conspiracy, since the murder was committed in pursuance of the conspiracy A joined.
- X and Y agree to cheat investors. Y instructs Z (an employee) to execute fraudulent transactions. Z carries out the fraud, unaware of X’s involvement. X is guilty of abetment by conspiracy, although X never interacted with Z.
- P and Q agree to smuggle prohibited goods. Q arranges for R to transport the goods. R completes the transportation. P is liable for abetment by conspiracy even though P never met or spoke to R.
- M and N plan a warehouse theft. N recruits T to break into the warehouse. T commits the theft. M is guilty of abetment by conspiracy despite having no direct contact with T.
- A and B agree to bribe a public servant. B, through an intermediary, delivers the bribe. The public servant accepts it. A is guilty of abetment by conspiracy even if A never communicated with the intermediary or the public servant.
Conclusion:
Section 46 of the Bharatiya Nyaya Sanhita, 2023 reinforces the idea that criminal responsibility is not confined merely to direct perpetrators, but extends to those whose conduct, intention, or participation plays a role in the commission of an offence. By clarifying the scope of liability and its application, it strengthens accountability within the justice system. In essence, Section 46 BNS embodies the continuity of established criminal law principles while adapting them to contemporary needs. It ensures that the legal system remains responsive, coherent, and effective in addressing evolving forms of criminal conduct.
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