Abetment and Attempt

In one line

A person who instigates, conspires or aids is punished as if he had committed the offence, and a person who tries and fails is punished with half of it.

In exam wording: sections 16 to 18 of the Protection of Children from Sexual Offences Act, 2012 define abetment, punish it with the punishment provided for the offence abetted where the act is committed in consequence, and punish an attempt with up to one half of the punishment for the offence.

Why the law has this at all

The offences in the earlier chapters are committed by one person on one child. Almost none of them happen that way in fact.

Somebody brings the child. Somebody provides the room. Somebody pays. Somebody who could have stopped it does nothing, having been paid to look away. In the ordinary law of abetment, the second and fourth of those are the hardest to reach, and they are exactly the people the trade in children depends on.

So section 16 takes the Indian Penal Code's three-limb definition of abetment and adds a third Explanation that has no counterpart there. It deems a person to aid the offence if he employs, harbours, receives or transports a child by any of a long list of means, for the purpose of any offence under this Act. That list, threat, force, coercion, abduction, fraud, deception, abuse of power or of a position, vulnerability, and payments or benefits to obtain the consent of a person having control, is the international definition of trafficking, and Explanation III imports it whole.

Section 18 answers the other problem. An attempt on a child may be interrupted at any point, and the earlier it is interrupted the less there is to prove. The section therefore does not require the attempt to be near completion: it is enough that the offender does any act towards the commission of the offence.

Some words this chapter uses

Instigate, by Explanation I, includes causing or procuring a thing to be done by wilful misrepresentation or wilful concealment of a material fact which one is bound to disclose.

Aid, by Explanation II, includes doing anything prior to or at the time of the act in order to facilitate it, and thereby facilitating it.

One half of imprisonment for life, in section 18, is the measure of the maximum for an attempt.

Section 16: what abetment is

A person abets an offence who:

First. Instigates any person to do that offence; or

Secondly. Engages with one or more other person or persons in any conspiracy for the doing of that offence, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that offence; or