Section 16 POCSO: Abetment of an offence
Protection of Children from Sexual Offences Act, 2012
Section 16 POCSO at a Glance
Section 16 POCSO defines when a person abets (encourages, conspires in, or helps commit) an offence under POCSO. It covers instigating the offence, conspiring where an act or illegal omission follows, and intentionally aiding the offence.
Section 16 POCSO Bare Act Text
16. Abetment of an offence.
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.
Section 16 POCSO in Simple Words
Section 16 POCSO defines what counts as abetment of an offence under POCSO, where a person encourages, plots, or helps another person to commit an offence. It sets out three ways in which a person abets an offence. First, a person abets an offence by instigating any person to commit that offence. Second, a person abets an offence by engaging in a conspiracy with one or more other persons for the doing of that offence, if an act or an illegal omission takes place in carrying out that conspiracy and in order to commit that offence. Third, a person abets an offence by intentionally aiding the doing of that offence through any act or illegal omission.
Explanation I and Explanation II explain instigation and aiding. Under Explanation I, a person who, by wilful misrepresentation (deliberately giving false information), or by wilful concealment of a material fact which that person 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. Under Explanation II, anyone who, either prior to or at the time of the commission of an act, does anything in order to facilitate (make easier) the commission of that act, and thereby facilitates its commission, is treated as aiding the doing of that act.
Explanation III covers conduct involving a child that counts as aiding under Section 16 POCSO. Anyone who employs, harbours, receives, or transports a child for the purpose of any offence under POCSO is treated as aiding the doing of that act when this is done by threat, use of force, other forms of coercion, abduction, fraud, deception, abuse of power or of a position or vulnerability, or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person. Section 16 POCSO defines abetment, while Section 17 POCSO deals with the punishment for abetment.
When Section 16 POCSO Applies
- First way (instigation): The person instigates any person to commit an offence under POCSO, including by wilful misrepresentation or wilful concealment of a material fact that the person is bound to disclose (Explanation I).
- Second way (conspiracy): The person engages in a conspiracy with one or more other persons for the doing of that offence, and an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that offence.
- Third way (intentional aid): The person intentionally aids the doing of that offence by any act or illegal omission, including doing anything before or at the time of the commission of the act in order to facilitate it and thereby facilitating it (Explanation II).
- Deemed aid involving a child (Explanation III): The person employs, harbours, receives, or transports a child for the purpose of any offence under POCSO by threat, force, coercion, abduction, fraud, deception, abuse of power or position or vulnerability, or payments or benefits to get the consent of a person having control over another person.
Example of Section 16 POCSO
FAQs on Section 16 POCSO
What is Section 16 POCSO?▼
Section 16 POCSO defines when a person abets an offence under the Protection of Children from Sexual Offences Act, 2012. A person abets an offence by instigating someone to commit it, conspiring with one or more persons where an act or illegal omission follows in pursuance of the conspiracy, or intentionally aiding it.
Does a conspiracy alone count as abetment under Section 16 POCSO?▼
No. Under the second clause of Section 16 POCSO, engaging in a conspiracy with one or more other persons counts as abetment only if an act or illegal omission takes place in pursuance of that conspiracy and in order to commit the offence.
Can hiding a fact count as instigating an offence under Section 16 POCSO?▼
Yes. Under Explanation I to Section 16 POCSO, a person who, by wilful misrepresentation or wilful concealment of a material fact that the person 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.
When does transporting or harbouring a child count as aiding under Section 16 POCSO?▼
Under Explanation III to Section 16 POCSO, employing, harbouring, receiving, or transporting a child for the purpose of any offence under POCSO counts as aiding when done by threat, force, coercion, abduction, fraud, deception, abuse of power or position or vulnerability, or by giving or receiving payments or benefits to obtain the consent of a person having control over another person.
Does facilitating an act before it happens count as aiding under Section 16 POCSO?▼
Yes. Under Explanation II to Section 16 POCSO, anyone who, either prior to or at the time of the commission of an act, does anything in order to facilitate its commission and thereby facilitates it is said to aid the doing of that act.
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Sources: Bare Act Text, Protection of Children from Sexual Offences Act, 2012 (India Code) ·