POCSO Act Section 16: Abetment of an Offence
Section 16 of the Protection of Children from Sexual Offences Act, 2012 defines when a person abets an offence under the Act. It covers instigation, conspiracy followed by the required act or illegal omission, and intentional aid. Its explanations also clarify instigation, facilitation and specified conduct involving the employment, harbouring, receipt or transport of a child for an offence under the POCSO Act.
CHAPTER IV - ABETMENT OF AND ATTEMPT TO COMMIT AN OFFENCE
Section 16 - Statutory Definition of Abetment
The current statutory text of Section 16 provides:
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
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 employ, 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.
What Constitutes Abetment under Section 16?
Section 16 identifies three principal modes of abetment. A person may abet an offence by instigating another person, by participating in a qualifying conspiracy, or by intentionally aiding the commission of the offence through an act or illegal omission.
1. Instigation
Instigation includes directly instigating another person to commit the offence. Explanation I extends the concept to wilful misrepresentation or wilful concealment of a material fact that the person is bound to disclose, where that conduct voluntarily causes, procures or attempts to cause or procure a thing to be done.
2. Conspiracy
The second limb applies where a person engages with one or more persons in a conspiracy for the doing of the offence and an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of the offence.
3. Intentional Aid
The third limb covers intentional aid by an act or illegal omission. Explanation II further provides that a person aids an act where, before or at the time of its commission, the person does something to facilitate it and thereby facilitates its commission.
Explanation III: Conduct Involving a Child
Explanation III expressly treats specified conduct as aiding an offence where a person employs, harbours, receives or transports a child by the means described in the provision for the purpose of any offence under the POCSO Act. The listed means include threat or force, other forms of coercion, abduction, fraud, deception, abuse of power or position, vulnerability, and giving or receiving payments or benefits to obtain the consent of a person having control over another person.
Punishment for Abetment under Section 17
Section 16 defines abetment. The punishment is dealt with by Section 17 of the POCSO Act. Where the act abetted is committed in consequence of the abetment, Section 17 provides that the abettor shall be punished with the punishment provided for that offence.
Abetment and Attempt are Different
Abetment under Section 16 concerns instigation, conspiracy or intentional aid in relation to an offence. Attempt is separately addressed by Section 18, which applies where a person attempts to commit an offence punishable under the Act, or to cause such an offence to be committed, and does an act towards its commission.
Official Legal Resources
India Code - Protection of Children from Sexual Offences Act, 2012 India Code Ministry of Women and Child Development - Publications