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ANALYSIS OF ABETMENT OF ABETMENT AS AN OFFENCE
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ANALYSIS OF
ABETMENT OF ABETMENT AS AN OFFENCE
AUTHORED BY - SUVEER DUBEY
LLM (CRIMINAL LAW)
CHAPTER -1
INTRODUCTION
STATEMENT OF PROBLEM
The analysis of "abetment of
abetment of an offence" represents a significant yet underexplored
challenge within contemporary legal studies. This intricate legal concept,
situated at the intersection of criminal law, provides a nuanced framework for
understanding aiding, abetting, and conspiring in criminal acts. Despite its
complexity, a comprehensive analysis of this concept is conspicuously absent in
existing legal literature and jurisprudence, leading to ambiguity and inconsistent
interpretations. This study seeks to fill this critical knowledge gap by
establishing a comprehensive theoretical framework, exploring its practical
application in real-world legal cases, assessing its legal implications, and
conducting a comparative analysis across different legal systems. Through this
research, we aim to shed light on the complexities and implications of the
abetment of abetment doctrine, contributing to a more informed and thorough
understanding of this subject within the legal community and its potential for
legal reform and enhancement.
RESEARCH QUESTIONS
1. Whether Abetment of abetment as on
offence ought to be punished?
2.
Whether jurisdictions of other countries
criticise or support the validity of double inchoate crimes in general?
3. Whether there is need for revision of
the present statute on abetment in Indian Penal Code,1860 if any, can be made?
RESEARCH OBJECTIVES
The primary aim of this project is to
employ a dual-pronged strategy for the analysis of the concept of
"abetment of abetment." The first facet of this approach involves
assessing the significance of this offense in terms of its contribution to the
improvement of the criminal justice system. The second facet involves a
comprehensive examination of the criticisms and limitations associated with
this concept. By doing so, we can provide recommendations for potential
revisions to the existing Indian statute with the ultimate goal of enhancing
its effectiveness and applicability. In essence, we are seeking to both
highlight the positive aspects of this legal concept and identify areas where
it can be improved for the benefit of the justice system.
HYPOTHESIS
Double inchoate crimes though can be
categorised into many categories, will refer to ‘abetment of abetment’
specifically for the purpose of this paper.
CHAPTER 2
ABETMENT AS IN INCOHATE OFFENCE IN INDIA
The
Indian legal framework, the concept of inchoate crimes is elucidated. In
particular, two such inchoate crimes, namely the "attempt to commit a
crime" and "abetment of the commission of a crime," [1]fall
within the category of incomplete crimes, primarily bearing the potential for
harm rather than actualized harm. These offenses are also categorized as crimes
that are detrimental to social security and overall well-being[2].
In essence, inchoate crimes allow for the punishment of an individual even when
they have not successfully executed the intended criminal act. The principal
objective behind penalizing inchoate crimes is to enable the legal system to
intervene before an individual completes the underlying criminal act[3].
In
many American jurisdictions, inchoate offenses are treated as distinct
substantive crimes, separate from the completed crimes they are associated
with. Consequently, the definitions of inchoate crimes such as abetment and
attempt are broadly formulated to encompass all actions that lead to the
commission of any completed crime.
In
its broader context, inchoate liability pertains to assigning criminal
responsibility for behavior that leads to but does not directly cause forbidden
consequences. The criminal law incorporates general principles for attempt and
abetment to apply to specific offenses, thereby broadening their scope. On the
other hand, the narrower interpretation of inchoate liability is concerned
solely with attributing liability for attempting and abetting in the commission
of specific offenses. This is referred to as relational inchoate liability or
simply relational liability, which constitutes a subset of inchoate liability
in the broader sense. This paper focuses on relational liability, particularly
in the context of attempt and abetment as relational offenses attached to
specific part offenses.
The
concept of inchoate offenses has evolved over time, as the courts, in response
to an increasing number and variety of criminal cases, recognized the need to
accord them significance. For instance, in the case of R v Higgins[4]
in the early 19th century, judges ruled it as a case of criminal attempt, even
though it was, in reality, a classic instance of incitement, where the
defendant encouraged a servant to steal from their master. This case can be
seen as establishing incitement as a distinct inchoate offense that can be
linked to specific part crime[5].
An individual who does not directly commit a crime
may, nevertheless, be deemed guilty of abetment if they command, encourage, induce,
request, or assist another person in carrying out the criminal act. Chapter V
of the Indian Penal Code outlines the legal provisions governing the liability
of individuals who are considered to have abetted the commission of an offense.
It is commonly recognized that many crimes require the cooperation of others,
as working in collaboration instills confidence in the offender that may not
exist when acting alone. In such cases, a third party is clearly involved in
persuading another to commit the crime. It becomes necessary to determine the
extent of involvement of such an individual, and this is why the legislature
has established abetment as a distinct offense.
Section 107[6]
specifies that a person abets the commission of an act under the following
circumstances:
1.
By instigating
another person to carry out that act.
2.
By engaging in a
conspiracy with one or more persons to commit the act, and if any act or
omission takes place because of that conspiracy.
3.
By aiding in the
commission of the act.
2.1) THE RATIONALE OF INCOHATE OFFENSES:
There are two primary justifications
for inchoate offenses:
One rationale underscores that
individuals who attempt or aid in an attempted murder are morally as culpable
as those who actually commit the murder. The mere fact that the victim does not
die does not diminish the moral blameworthiness of those who intended to kill
the victim, whether by their own hands or by another's. For instance, a judge
in 2007, while sentencing an attempted murder case, is reported to have
questioned why the defendant should “avoid a life sentence merely because [he]
is a bad shot”.[7]
The second justification for inchoate
offenses argues that law enforcement should be able to intervene before crimes
are completed and process potential perpetrators through the criminal justice
system. This approach is believed to better serve the goal of preventing harm,
as opposed to waiting until the crime is already committed before taking action
to enable prosecution. In other words, as one author contends, “Society should
not be forced to choose between preventing the crime and prosecuting the offender”[8].
2.2)ABETMENT BY INSTIGATION:
The
concept of abetment in this context is broadly defined and encompasses the
active involvement of the abettor before the actual commission of the crime[9].
Central to this offense is the requirement that the abettor substantially aids
the principal offender. The abettor facilitates the actions of the culpable
agents, and the presence of mens rea, or criminal intent, is a crucial
precondition. In the case of Shrilal vs. Madhya Bharat, it was established that
convicting an individual of abetting a crime necessitates not only
demonstrating their involvement in innocuous steps of a transaction but also
connecting them to steps that are inherently criminal.
The
initial form of abetment, as mentioned earlier, is through instigation, which
involves provoking, urging, or persuading someone to commit an act. Instigation
can take various forms, and the law does not prescribe a specific form, but a
close causal relationship between the instigation and the subsequent act is
essential. For instance, if A declares to B that they are going to kill C and B
merely responds without actively encouraging the act, B cannot be considered to
have instigated A.
In
the case of Ram Kumar vs. State of Himachal Pradesh,[10]it
was clarified that instigation has a broad meaning, extending to instigation
through the conduct of an individual, as seen in the conduct of a husband
abetting the commission of rape on his wife. In some instances, the approval or
endorsement of an act can also constitute instigation. For example, if a woman
is preparing for committing sati, and people chant praises in approval, it
would be considered a case of instigation by approval in that particular
circumstance
2.3) ABETMENT BY
CONSPIRACY:
A
person is deemed to abet the commission of a crime through conspiracy when they
form an agreement with one or more individuals to engage in an unlawful act,
and some action is taken in pursuit of that agreement.
For
example, consider a scenario where A, who is a servant, collaborates with
thieves to keep the door of his master's house open at night for the purpose of
committing theft. In adherence to this agreement, A keeps the doors open, and a
theft occurs. In this case, A is culpable for abetment by conspiracy.
In
the legal case of Saju vs. State of Karnataka,[11]
it was ruled that to establish abetment by conspiracy, the prosecution must
demonstrate that the abettor has incited the undertaking of a specific action
as part of a conspiracy to carry out the illegal act or omission.
2.4) THE SIGNIFICANCE OF MENS REA FOR ABETMENT:
The
mental state, known as mens rea or guilty intention/knowledge, is a critical
component in abetment cases. To convict an individual of aiding in the
commission of a crime, it is crucial to establish their active participation in
the transaction with a guilty state of mind. For the offense of abetment to be
constituted, there must be mens rea or a shared intention, as abetment cannot
occur without it. This intention must be connected to the crime, and the
assistance provided must be immediate and more than mere passive agreement.[12]
Therefore, inchoate offenses function to impose penalties based on the
potential or imminent criminal harm posed by an individual with a culpable
state of mind.[13]
CHAPTER – 3
DOUBLE INCOHATE CRIMES
In
the context of a theory of inchoate liability that emphasizes an individual's
criminal intent, certain courts have broadened the scope of actions that can
lead to liability, allowing for intervention and permitting the prosecution and
conviction of double inchoate offenses. Interestingly, the Indian Penal Code
rarely addresses the question of whether one inchoate crime could be the
subject of another (although it does notably focus on abetment of abetment as
an offense). This absence of statutory guidance in characterizing
inchoate-crime concepts has empowered courts to "pyramid" inchoate
crimes to fill the gaps in penal codes.
When
courts create double inchoate offenses, they exercise a level of authority akin
to earlier courts that established common-law crimes[14],
extending liability to actors whose criminal intent the courts deem
sufficiently dangerous or egregious to warrant judicial intervention. While
theoretically, the pyramiding of the two traditional inchoate offenses[15],
as described earlier, could result in various double inchoate offenses, one
specific category has undergone extensive criminal litigation and will be
explored further, namely, the abetment of abetment.
3.1)ABETMENT OF
ABETMENT:
This
scenario involves A abetting B, who subsequently abets C to engage in criminal
activity. The Indian Penal Code lacks a specific provision for such cases;
however, they are subject to punishment through the interpretation of the
statute.
As
previously mentioned, Section 107 addresses the "Abetment of a
thing," which pertains to any action that results in the commission of the
targeted or resulting crime. This concept of "a thing" can encompass
abetment itself, leading to the possibility of double inchoate liability. This
framework has enabled the courts to handle a wide range of cases involving
instigation to conspire for a crime, instigation to intentionally aid a crime,
conspiring to instigate others to commit a crime, conspiring to intentionally
aid another, or intentionally aiding in a conspiracy to commit a crime. The
interpretation of these scenarios is subjective and varies from case to case.
To comprehend the logic behind these offenses and the criticisms they face, it
is essential to analyze the following illustrations depicting the same.
For
instance, if A instigates B to conspire with C and D to commit a specific
crime, B, C, and D will be held liable for conspiracy initially. However, A
will also be held accountable for instigating B, who then acted in furtherance
of A's instigation (whether A will be liable for the actual crime committed is
addressed in a later section).
Now,
in the scenario described above, A initiated the criminal activity, setting in
motion a sequence of events that ultimately resulted in the commission of the
crime. Even though A did not act directly but allowed others to conspire and
commit the crime, it is crucial to hold A accountable. This underscores the
necessity of imposing liability on individuals involved in double inchoate
crimes.
3.2)ABETMENT OF
ABETMENT : A MUCH OFTEN CONDUCTED CRIME:
A
person who does not directly commit a crime may, nonetheless, instruct,
encourage, induce, request, or assist a third party in carrying it out, thereby
incurring guilt for abetment. Such an individual should be legally punished for
introducing the idea that influenced another to commit a crime. Moreover,
within the chain of individuals involved in the events, there could be yet
another person who abets someone else, usually the one who actually commits the
crime. In this case, it is crucial to penalize the first person who initiated
the idea, as the absence of their instigation would have prevented the initial
crime. Although their role is limited to an event that occurred well before the
crime was committed and is unrelated to the actual commission of the crime, it
remains necessary to hold them accountable for introducing the idea that
prompted another to abet yet another. This illustrates a clear intention on the
part of an individual to further a criminal intent. The mens rea for this
offense is the specific intent to encourage another person who, in turn, might
incite another to commit a particular completed offense.
Law
enforcement agencies should be capable of intervening well before crimes are
actually carried out and processing potential perpetrators through the criminal
justice system. Waiting until the crime is actually committed is not advisable.
The person who abets or attempts to commit murder is morally and legally as
culpable as the person who commits the murder. Those who intend harm to others
in any way must be held accountable; allowing them to go free is akin to
leaving the mastermind behind the unpunished act. The Indian Penal Code
stipulates that abetment of an offense is itself an offense, and the abetment
of such an abetment is likewise an offense. For instance, if A instigates B to
incite C to murder Z, and B then incites C to commit the murder, with C
carrying it out as a result of B's instigation, B is liable for punishment for
murder under Section 109 of the Indian Penal Code. Additionally, since A
incited B to commit the offense, A is also subject to the same punishment.
Importantly, whether the targeted act is actually executed or not is
irrelevant. To establish the offense of abetment, it is not necessary that the
effect required to constitute the offense should be realized; it hinges on the
instigation itself and not its impact on another person (as provided by Section
108, IPC).
Despite
the application of the double inchoate concept, notably abetment of abetment,
by several federal and state courts, the majority of jurisdictions have not
embraced this practice. Critiques of convictions for abetment of abetment as
"logical absurdities" from the nineteenth and early twentieth
centuries continue to hold sway and influence many court decisions.
However,
the abstract nature of the logical-absurdity argument has only recently faced
criticism from scholars and jurists. Consequently, some recent decisions that
reject the recognition of double inchoate offenses have cited the absence of
explicit legislative intent to authorize courts to essentially create crimes by
combining statutory inchoate offenses. This argument suggests a due process
violation resulting from the defendant's lack of notice. Moreover, apart from
these considerations, several recent decisions and commentaries have found
fault with the use of abetment of abetment as a separate crime, deeming it
cumbersome and unnecessary.
CHAPTER -4
CONCLUSION
Criminal Attempt and Abetment, two
inchoate crimes, involve conduct that falls short of the completed object
offense. The development of these offenses was necessary to address and bring
under scrutiny crimes that, while incomplete, still warrant punishment for
those involved. The Indian Penal Code, 1860, provides specific definitions and
punishments for both offenses, as explained earlier.
Double inchoate crimes have emerged
as a distinct field that calls for the punishment of those involved. Dealing
with a multitude of incomplete offenses that subsequently result in another
incomplete offense leading to the commission of a completed crime poses
challenges in the legal landscape. However, the Indian Penal Code has addressed
this issue with the concept of abetment of abetment under Section 108, which
deals with abetment of an offense that could be abetment itself. It is
essential to punish every individual who plays a role, whether through action
or instigation, in the commission of an unlawful act.
Many jurisdictions have failed to
incorporate this concept into their penal codes, leading to difficulties in the
judicial handling of such matters and a lack of a concrete legal framework. For
them, it remains a subjective matter. While the concept is inherently complex,
the absence of specific statutes further complicates the situation. The concept
of double inchoate crimes faces criticism due to the lack of explicit
legislative intent and concerns related to due process, as individuals should
be aware of the criminality of their actions. It is crucial that the existing
statute on inchoate liability amends its sections to include clear criteria for
establishing double inchoate liability, reducing the need for extensive
judicial intervention and ensuring a more defined legal framework for the
offense.
Therefore, the punishment of abetment
of abetment as a double inchoate crime should be mandated under all
circumstances and cases. This ensures that no individual involved in the
initiation and facilitation of a crime goes unpunished, forming the basis of
any effective criminal justice system.
RECOMMENDATION
If
Section 107[16]
were to be revised to include a clear criterion for determining the validity of
a double inchoate offense (such as abetment of abetment in this case), it would
significantly simplify the decision-making process for the courts. The problem
with courts that have relied on the arguments of logical absurdity and
legislative intent is that they have overlooked the crucial question of whether
the acts before them warrant punishment. Instead, they have initiated their
inquiry by examining whether the existing substantive inchoate statutes in
their jurisdictions allow for the punishment of these acts.
Conversely,
some courts that have acknowledged the legitimacy of double inchoate crimes
have done so without conducting a thorough examination of their necessity in light
of attempt and abetment statutes. While double inchoate crimes may be a
valuable judicial tool in certain situations, they may be unnecessary in
others.
However,
this proposed revision faces a practical challenge. Ideally, legislatures
should expand existing inchoate concepts whenever possible, rather than
routinely resorting to prosecutions for double inchoate offenses. Despite a
growing recognition of double inchoate constructions within the judicial and
scholarly communities, there are still significant barriers to their widespread
adoption. Therefore, courts that find the concept of double inchoate
constructions logically perplexing are likely to continue dismissing them.
CHAPTER-5
BIBLIOGRAPHY
Primary
Sources:
Ø
Indian Penal Code,1860
Ø
Criminal Procedure Court,1973
Ø Mike
Molan, “Cases and Materials on Criminal Law” Fourth Edition
Ø Hart,
The Aims of the Criminal Law, 23
LAW &CONTEMP. PROB.
Secondary
Sources:
Ø Law
Reform Commission of Canada Secondary Liability: Participation in Crime and
Inchoate Offences (Working Paper 45 1985)
Ø “Man
Gets Life Sentence for Attempted Murder” The Irish Times 5 May 2007
Ø Enker
“Mens Rea and Criminal Attempt” (1977) Am B Found Res J 845, at 850
Ø Arnold,
Criminal Attempts-The Rise and Fall of
an Abstraction, 40 YALE L.J. 53, 74-76 (1930
Ø Ira
P. Robbins “ Double Inchoate Crimes” 26 Harv. J. on Legis. 1 1989
Web
sources:
[1]
Attempt to murder is an offence (section 307); so is attempt to commit culpable
homicide (section 308); so is attempt to commit suicide (section 309); so is
assault or criminal force in attempt wrongfully to confine a person (section
357); and so is attempt to commit robbery (section 393)] IPC 1860
[5]
See McAuley and McCutcheon Criminal Liability (Round Hall Press 2000) ,also See
also Law Reform Commission of Canada Secondary Liability: Participation in
Crime and Inchoate Offences (Working Paper 45 1985)
[10]
AIR 1995 SC 1965
Article Information
ANALYSIS OF ABETMENT OF ABETMENT AS AN OFFENCE
Authors: SUVEER DUBEY
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/30
- Issue 7
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International Journal for Legal Research and Analysis
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