What Is BNS Section 46?

Bharatiya Nyaya Sanhita, 2023 - 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.

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 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.

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.

Brief Detail

Section 46 of the BNS Code defines the concept of abetment. An individual who abets an offence is one who encourages or aids the commission of an offence or an act that would be considered an offence if committed by someone legally capable and with the same intent or knowledge as the abettor. The section clarifies that abetment can involve illegal omissions and does not require the actual commission of the act. It further states that the abettor does not need to be capable of committing the offence or have the same intention as the abetted person. The section also covers the abetment of abetment itself and the notion that even indirect participation in a conspiracy constitutes an offence.

Question & Answers

Q1: What constitutes abetment under Section 46?

A: Abetment occurs when a person encourages or aids in the commission of an offence or an act that would be an offence if done by someone legally capable with the same intent or knowledge as the abettor.

Q2: Is it necessary for the act abetted to be committed for abetment to be constituted?

A: No, it is not necessary for the act to be committed or for the effect requisite to constitute the offence to be caused.

Q3: Can abetment involve illegal omissions?

A: Yes, abetment of an illegal omission can also amount to an offence even if the abettor is not required to perform the act.

Q4: What if the person abetted is not legally capable of committing an offence?

A: It is not necessary for the person abetted to be legally capable of committing an offence. The abettor can still be held guilty if they intended or knew of the offence.

Q5: What is the significance of the abetment of an abetment?

A: The abetment of an abetment is also considered an offence, meaning that encouraging someone to encourage another person to commit a crime is punishable.