By Kawanpreet Kaur 

The Kerala High Court held that to show that a person has committed the offence of abetment punishable under Section 16 r/w Section 17 of the POSCO Act, the intention of facilitating the offence has to be proved. It was alleged that the petitioner helped the victim to find a flat and aided in the commission of the offence of sexual assault. He was accused of committing offences of kidnapping, rape and other offences under the POSCO Act in the final report. The petitioner approached the High Court aggrieved by the dismissal of his discharge petition. The Court found that the flat was taken on the initiative of the victim, but the petitioner was also there to avail the flat.

It stated that Section 16 defines abetment in three clauses and the third clause reads: “A person abets the doing of a thing who intentionally aids, by any act or illegal omission, the doing of that thing”. Further, the Court also took note of explanation II of Section 16 which reads: “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”. The Court noted that the provision does not define the terms “intentionally aids” but to fall under the ambit of Section 16, aiding must be committed with the intention of facilitating the offence. Thus, in order to constitute abetment, the abettor must be shown to have “intentionally aided” the commission of the crime. It is not enough to merely prove that the crime charged could not have been committed without the interposition of the alleged abettor.

Further, the Court also noted that Section 29 of the POSCO Act creates a legal fiction of presumption when there is allegation of commission of offences like sexual assault. Accordingly, the Court held that the Trial Court was right in holding that a charge under Section 17 of the POCSO Act could be framed against the petitioner even if the final report does not mention it. (Jeffin Kuriakose v State of Kerala- CRL.REV.PET NO. 768 OF 2021) 

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