Abetment and Attempt
Chapter Ninety-Seven
Syllabus topic 4.2, the Protection of Children from Sexual Offences Act, 2012. Chapter IV of the Act.
Pages 664 to 668 of 699
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
Abetment and Attempt
Thirdly. Intentionally aids, by any act or illegal omission, the doing of that offence.
Explanation I. 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 offence.
Explanation II. Whoever, either prior to or at the time of 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.
Explanation III. Whoever employs, harbours, receives or transports a child, by means of threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position, vulnerability, or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of any offence under this Act, is said to aid the doing of that act.
Note the structure of the second limb, because it is often stated incompletely. Conspiracy alone is not abetment under it; there must also be an act or illegal omission in pursuance of that conspiracy and in order to the doing of the offence.
Section 17: punishment for abetment
Whoever abets any offence under this Act, if the act abetted is committed in consequence of the abetment, shall be punished with the punishment provided for that offence.
Explanation. An act or offence is said to be 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 whole of section 17 turns on the words committed in consequence of the abetment. Where the offence is not committed, the abettor is not punished under this section; the Act has no separate provision for abetment of an offence not committed, and the prosecution must look to an attempt under section 18 if the facts support it.
Section 18: punishment for attempt
Whoever attempts to commit any offence punishable under this Act, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall be punished with imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life, or, as the case may be, one half of the longest term of imprisonment provided for that offence, or with fine, or with both.
Abetment and Attempt
Three elements. There must be an attempt to commit the offence, or to cause it to be committed. The offender must do any act towards the commission of the offence. And the punishment is imprisonment of any description provided for the offence, capped at one half of imprisonment for life or one half of the longest term, or fine, or both.
A worked example
A man arranges for a child to be brought to a house, where another man commits penetrative sexual assault on her.
Is the first man liable? Yes. He intentionally aided the offence, section 16, Thirdly; and by Explanation III he is in any event said to aid it, having transported a child for the purpose of an offence under the Act.
What is his punishment? The act abetted was committed in consequence of the abetment, so he is punished with the punishment provided for that offence, section 17, that is under section 4 or section 6.
Change it: the child was brought but the offence never took place. Section 17 does not apply, because it requires the act abetted to have been committed in consequence. The prosecution must consider section 18, if an act towards the commission of the offence was done.
A third man had told the child's parents a lie to get her to the house. That is instigation by wilful misrepresentation, Explanation I.
A fourth had paid the person who had control of the child. That is squarely within Explanation III: the giving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of an offence under the Act.
A fifth man agreed with the others in advance and hired the house. That is the second limb: a conspiracy, followed by an act in pursuance of it and in order to the doing of the offence.
Now the attempt. A man is caught in the act of trying to commit aggravated penetrative sexual assault but is prevented.
What is he liable for? Section 18, having done an act towards the commission of the offence.
How much? Up to one half of imprisonment for life, or one half of the longest term provided for that offence, or fine, or both.
Distinctions
| The three limbs of abetment, section 16 | What is required |
|---|---|
| First, instigation | Instigates any person to do the offence; includes wilful misrepresentation or concealment, Explanation I |
| Secondly, conspiracy | Engages in a conspiracy, and an act or illegal omission takes place in pursuance of it and in order to the doing of the offence |
| Thirdly, aid | Intentionally aids by any act or illegal omission; includes facilitating prior to or at the time of the act, Explanation II, and the trafficking conduct in Explanation III |
Abetment and Attempt
| Section 17, abetment | Section 18, attempt | |
|---|---|---|
| Precondition | The act abetted is committed in consequence | An act towards the commission is done |
| Punishment | The punishment provided for that offence | Up to one half of imprisonment for life, or one half of the longest term, or fine, or both |
| Explanation III conduct | Means |
|---|---|
| Employs, harbours, receives or transports a child | Threat or use of force, other forms of coercion, abduction, fraud, deception, abuse of power or of a position, vulnerability, or giving or receiving payments or benefits to achieve the consent of a person having control over another person |
| Purpose | Any offence under this Act |
| Effect | He is said to aid the doing of that act |
What this does NOT mean
Conspiracy alone is not abetment. The second limb requires an act or illegal omission in pursuance of the conspiracy and in order to the doing of the offence.
Section 17 does not punish abetment of an offence that never happened. It applies where the act abetted is committed in consequence of the abetment.
Explanation III does not require force. Its list includes fraud, deception, abuse of power or of a position, vulnerability, and payments or benefits.
Section 18 does not require the attempt to be nearly complete. It is enough that the offender does any act towards the commission of the offence.
And the half in section 18 is a ceiling, not a fixed sentence. The punishment may extend to one half, and may be fine, or both.
Quick revision
- 16: abetment by instigation, by conspiracy plus an act or illegal omission in pursuance of it, or by intentionally aiding by any act or illegal omission. Explanation I, instigation by wilful misrepresentation or concealment of a material fact one is bound to disclose. Explanation II, aid by facilitating prior to or at the time of the act. Explanation III, employing, harbouring, receiving or transporting a child by threat, force, coercion, abduction, fraud, deception, abuse of power or position, vulnerability, or payments or benefits to achieve the consent of a person having control, for the purpose of any offence under this Act, is aiding.
- 17: where the act abetted is committed in consequence, the abettor is punished with the punishment provided for that offence; the Explanation defines "in consequence".
- 18: attempt, with any act towards the commission, punished with up to one half of imprisonment for life, or one half of the longest term provided for the offence, or fine, or both.
Abetment and Attempt
Test yourself
1. In what three ways may an offence be abetted? By instigating any person to do the offence; by engaging with others in a conspiracy for the doing of it, where an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of the offence; or by intentionally aiding, by any act or illegal omission, the doing of the offence, section 16.
2. State Explanation III to section 16. Whoever employs, harbours, receives or transports a child, by means of threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position, vulnerability, or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of any offence under this Act, is said to aid the doing of that act.
3. What is the punishment for abetment? The punishment provided for the offence abetted, where the act abetted is committed in consequence of the abetment, section 17.
4. When is an act said to be 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, Explanation to section 17.
5. What must be proved for an attempt? That the accused attempted to commit an offence under the Act, or to cause such an offence to be committed, and that in such attempt he did any act towards the commission of the offence, section 18.
6. What is the punishment for an attempt? Imprisonment of any description provided for the offence, for a term which may extend to one half of imprisonment for life, or one half of the longest term of imprisonment provided for that offence, or fine, or both.
7. Is a conspirator always an abettor? No. Under the second limb of section 16, there must also be an act or illegal omission in pursuance of the conspiracy and in order to the doing of that offence.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.