BACK TO SECTIONSAIR 1959 SC 673
N/ACognizable: N/AN/A
THE STATUTE
Original Text
A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.
Simplified
Section 108 closes the most obvious loophole in abetment law — a person cannot escape liability by using an 'innocent tool' who is incapable of committing a crime. If an adult instructs a 5-year-old to poison someone's food, the child has absolute criminal immunity under Section 82. Without Section 108, the adult would escape liability too. Section 108 prevents this: a person can abet an act that would be an offence 'if committed by a person capable of committing an offence with the same intention.' The abettor's own mens rea is assessed independently. This 'innocent agent' doctrine has modern application in using severely mentally ill persons as tools, deploying minors in criminal enterprises, and cyber-fraud operations where unwitting intermediaries execute criminal acts.
Legal Evolution
The innocent agent doctrine became critical in trafficking cases where children are deployed as tools of exploitation — the adults who use them are held as abettors under Section 108.
Landmark Precedents
Faguna Kanta Nath v. State of Assam (1959)
RELEVANCE
Established the innocent agent doctrine under Section 108 — a person who uses an incapable agent to commit crime is fully liable as the abettor.
Practical Scenarios
"An adult who places a loaded gun in a 4-year-old's hand and directs them to shoot — guilty of abetment of murder."
"A cybercriminal who uses a mentally ill person's bank account to route fraud proceeds — abettor under Section 108."
Common Queries
Yes — Section 108 expressly covers this. If you use an insane person as a tool to commit a crime, you face the full punishment for the abetted offence.