Though the BNS is criminal law that only applies within the jurisdiction of the country, many offences are operated from outside the country. Whether it is the 26/11 Mumbai attacks or underworld activities involving offences like extortion, murder, or the recent surge in cybercrimes, it is not necessary for offenders to commit offences in India by being physically present in the country. Hence, a provision defining this act of offences was needed, which has been addressed in BNS. BNS Section 48: Abetment outside India for offence in India. This section is a new addition to Indian criminal law, as the Indian Penal Code (IPC) did not explicitly cover such offence.
Section 48.Abetment outside India for offence in India.
1. Provision
A person abets an offence within the meaning of this Sanhita who, without and beyond India, abets the commission of any act in India which would constitute an offence if committed in India
Illustration.
A, in country X, instigates B, to commit a murder in India,A is guilty of abetting murder.
Section 48 of the Bharatiya Nyaya Sanhita (BNS) addresses the abetment of offences committed in India by individuals who are physically located outside the country. In simple terms, this provision ensures that a person who, while being outside India, instigates, aids, or conspires to commit an offence within India can be prosecuted under this provision.
2. Ingredients of Section 48
- Abetment: The core element is abetment, which refers to instigating, conspiring, or intentionally aiding the commission of an offence. The definition of abetment is further detailed in Section 45 of the BNS.
- Location of Abettor: The abettor must be physically “without and beyond India”. This implies that the person is not within the territorial jurisdiction of India when the act of abetment is committed.
- Location of Offence: The offence that is being abetted must be one that is committed or intended to be committed in India.
- Nature of the Act: The act being abetted must be of such a nature that it would constitute an offence under the BNS if it were committed within India.
3. Practical Examples
- Cybercrime: A person located in another country plans and executes a cyber attack on a critical infrastructure in India with the help of accomplices within India. Even though the planner is physically outside India, they can be held liable under Section 48 of the BNS for abetting the cyber offence.
- Terrorism: A person residing in a foreign country provides funds, training, or logistical support to a terrorist group operating in India. If the actions of the terrorist group in India constitute a terrorist act, then the person outside India can be prosecuted under Section 48 of the BNS for abetting a terrorist act.
- Financial Fraud: An individual outside India arranges a financial scam targeting Indian citizens, using associates located within India. The person outside India can be prosecuted under Section 48 of the BNS for abetting fraud.
- Organised Crime: An individual located in another country directs the activities of an organised crime syndicate in India and engages in unlawful activities
- Human Trafficking: A person located outside India organises or facilitates the trafficking of individuals into India, even though they are not physically present in India when the actual trafficking occurs, they can be prosecuted under section 48
4. Key Points to Note Extra-territorial Jurisdiction:
Section 48 extends the jurisdiction of Indian law to acts of abetment that occur outside the country. This is an example of extra-territorial jurisdiction, which is becoming increasingly common in the age of globalisation and transnational crimes.
- Focus on Act in India: The key element is that the act being abetted must be an offence if committed in India. This means that the person outside India cannot be prosecuted for abetting an act that is not an offence under Indian law.
- No Physical Presence Requirement: The abettor does not need to be physically present in India for this section to apply. The focus is on whether the abetment occurred outside India and the offence occurred or was intended to occur in India.
- Link to other offences: Section 48 applies to the abetment of Numerous offences under BNS including terrorism, organised crime, economic offences, and offences against women and children.
5. Punishment for Section 48 : Same as the
- The punishment for abetment under Section 48 is the same as the punishment prescribed for the actual offence committed in India.
- For example:
- If the abetted offence is punishable by life imprisonment (e.g., terrorism or murder), the abettor will also face life imprisonment.
- If the offence carries a fine or imprisonment for a specific term, the same applies to the abettor.
Applicability to Both Completed and Attempted Offenses
- Completed Offence: If the act abetted is successfully carried out, the abettor will be punished as if they were the principal offender.
- Attempted Offence: If the abetment does not lead to the completion of the offence, the punishment may be reduced or adjusted based on provisions governing attempts under the BNS.
Judicial Assessment of the Role of the Abettor
- Instigation, Conspiracy, or Aiding: The punishment considers the specific role played by the abettor (e.g., instigator, conspirator, or active aid provider).
- Impact of the Crime: The courts may also evaluate the scale of harm or threat posed by the abetted offence to determine sentencing.
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6. Relationship with Other Laws
- The BNS itself clarifies that the definitions within it are applicable throughout the Sanhita unless the context requires otherwise.
- The definition of “child” in Section 2(3) of the BNS as any person below the age of 18 years and the use of the term “transgender” are important for the interpretation of offences under the BNS as it applies to abetment under section 48.
- The BNS defines the terms “organised crime syndicate” and “continuing unlawful activity” which are relevant for prosecution under Section 48 of abetment of organised crime
- The explanation in Section 23 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) defines community service as “work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration” which is applicable to some of the offences that can be abetted under section 48.
7. FAQs on Section 48 of the Bharatiya Nyaya Sanhita (BNS), 2023
Q1: What is Section 48 of the BNS?
A: Section 48 of the BNS deals with the concept of abetment committed outside India. It states that a person abets an offence under this Sanhita if they, while being outside India, abet the commission of an act in India that would constitute an offence if committed in India.
Q2: What is abetment under Section 48 of the BNS?
A: Abetment under Section 48 refers to a person who, while outside India, instigates, conspires, or aids the commission of an offence in India. This provision ensures that individuals operating from foreign territories can still be held liable for offences committed within India.
Q3: What is abetment in the context of the BNS?
A: Abetment in the BNS refers to the act of encouraging, instigating, conspiring, or aiding another person to commit an offence. It is addressed across multiple sections of the BNS and holds abettors equally liable as principal offenders, depending on the nature of their involvement.
Q4: Does Section 48 of the BNS apply to all offences?
A: Section 48 applies to any offence under the BNS that is abetted from outside India, provided the act being abetted would constitute an offence if committed within India.
Q5: Can a person outside India be prosecuted under Section 48 of the BNS?
A: Yes, a person outside India can be prosecuted under Section 48 if they abet an act in India that qualifies as an offence under the BNS. The provision extends Indian law’s jurisdiction to ensure accountability for transnational crimes.
Q6: What is the punishment for offences under Section 48 of the BNS?
A: The punishment for abetment under Section 48 corresponds to the punishment prescribed for the principal offence being abetted.The abettor is treated as if they had committed the offence themselves.
Q7: How does Section 48 address cybercrimes?
A: Section 48 covers cybercrimes when an individual outside India abets a cyber offence targeting India or Indian citizens. This is particularly significant given the rise in transnational cybercriminal activities.
Q8: Why was Section 48 introduced in the BNS?
A: Section 48 was introduced to address modern challenges of globalization and transnational crimes, such as cybercrime, terrorism, and organized crime, which often involve offenders operating from outside India’s borders.
Q9: How does Section 48 impact international cooperation in crime control?
A: Section 48 reinforces the need for international cooperation by allowing India to hold foreign abettors accountable. It may involve seeking extradition or collaboration with other countries to prosecute offenders under Indian law.
Q10: Can Section 48 be applied retroactively?
A: No, like all criminal laws in India, Section 48 cannot be applied retroactively. It only applies to offences committed after the BNS came into effect.
Summing up: Section 48 of the BNS is a significant step which makes it possible to prosecute individuals who, while operating from beyond Indian borders, abet criminal activities within India. This provision reflects a recognition that crimes can be planned and perpetrated across borders and should be addressed accordingly. As cases under this section are adjudicated, the courts will play a key role in developing a jurisprudence that will help shape the future application of this provision.
