IPC Section 108 and BNS Section 46: Who Is an Abettor?
Section 108 of the Indian Penal Code, 1860 defined an abettor. The corresponding provision under the Bharatiya Nyaya Sanhita, 2023 is Section 46. Both provisions explain liability for encouraging, facilitating or participating in the abetment of an offence, including circumstances where the principal act is not completed.
Meaning of an Abettor under IPC Section 108 and BNS Section 46
An abettor is a person who abets an offence, or an act which would be an offence if done by a person legally capable of committing it with the abettor's intention or knowledge. The underlying methods of abetment are described in IPC Section 107 and BNS Section 45: instigation, conspiracy accompanied by the required act or illegal omission, and intentional aid.
| Indian Penal Code, 1860 | Bharatiya Nyaya Sanhita, 2023 | Subject |
|---|---|---|
| Section 107 | Section 45 | Abetment of a thing |
| Section 108 | Section 46 | Abettor |
| Section 109 | Section 49 | Punishment where the abetted act is committed and no express provision exists |
| Section 110 | Section 50 | Liability where the person abetted acts with a different intention |
IPC Section 108 - Statutory Text, Explanations and Illustrations
The following retains the substantive original material, including all five explanations and the illustrations. Minor punctuation and formatting have been normalized for readability. For legally authoritative wording, consult the official texts linked below.
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.
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.
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.
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 lunatic 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 the unsoundness of his 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.
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.
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.
Five Statutory Explanations in Simple Language
- Illegal omission: A person can abet another's unlawful failure to act even if the abettor had no personal duty to perform that act.
- Completion not required: The act encouraged need not actually be committed, and the intended result need not occur, for abetment to arise.
- Capacity of the person abetted: The person induced need not be legally capable of committing the offence or possess the same criminal intention. The abettor's own conduct and mental element matter.
- Abetment of abetment: Encouraging another person to abet an offence can itself constitute abetment.
- Conspiracy without direct contact: An abettor need not personally agree with the ultimate perpetrator if the statutory requirements of abetment by conspiracy are established.
Practical Examples
Refused instigation: A asks B to murder C, but B refuses. A may nevertheless be liable for abetment, subject to the applicable offence and punishment rules.
Using an innocent person: A intentionally induces B to take another's property by falsely telling B that it belongs to A. B's lack of dishonest intention does not necessarily absolve A.
Indirect conspiracy: Participants may be involved in a plan without each knowing every other participant. Liability still requires proof of the statutory elements, including the act or illegal omission required for abetment by conspiracy.
Is There a Separate Punishment under Section 108 or Section 46?
IPC Section 108 and BNS Section 46 are definitional provisions. They do not prescribe a single universal sentence for every abettor. The punishment depends on the substantive offence, whether it was committed, whether an express punishment provision applies, and other relevant facts.
For example, BNS Section 49 generally addresses abetment where the act is committed in consequence of the abetment and no express punishment provision applies. Other sections of Chapter IV cover different situations, including where the offence is not committed. The corresponding historical provision is IPC Section 109.
Frequently Asked Questions
Is an abettor liable if the offence is not committed?
Yes. Under IPC Section 108 and BNS Section 46, abetment may exist even if the act abetted is not committed. The applicable punishment depends on the relevant offence and statutory punishment provisions.
What is the current BNS equivalent of IPC Section 108?
Section 46 of the Bharatiya Nyaya Sanhita, 2023 defines an abettor. BNS Section 45 describes modes of abetment.
Can someone abet an offence committed by a child?
Yes. The definition can apply even if the person induced lacks the legal capacity or guilty intention to commit the offence; the abettor's own intention and conduct remain relevant.
Is abetment by conspiracy the same as criminal conspiracy?
Not necessarily. Abetment by conspiracy under BNS Section 45 requires an act or illegal omission in pursuance of the conspiracy. Criminal conspiracy is separately addressed under BNS Section 61.
Official Legal References
- Bharatiya Nyaya Sanhita, 2023 - official India Code PDF
- Bureau of Police Research and Development - BNS reference text
- National Crime Records Bureau - BNS sections
- India Code - Government of India legislation database
Disclaimer: This article provides general legal information, not advice on any specific case. Consult the applicable statutory text and a qualified legal professional for a particular matter.