This article explains the nuances of Criminal Conspiracy described under Section 120B of IPC; written by Rithika Rarichan, associated with National University of Advanced Legal Studies, Kochi.
Origin of Criminal Conspiracy
The origin of the criminal conspiracy being recognized as an offence is fairly recent, considering the complex nature of the offence itself. The first time it was given legal baring was in the Poulterer’s Case[1] in 1611, where the defendants conspired with each other and falsely brought a case of robbery against a person named “Stone”.
The evidence presented lead to the grand jury acquitting Stone of all charges. It was in the countersuit filed by Stone that the court laid out principles of what is now defined as a criminal conspiracy. The court stated that the mere presence of conspiracy among the defendants, irrespective of whether Stone was falsely indicted or acquitted, is the gist of the offence and can be considered a crime.
India is governed and often inspired by English laws. The aforementioned principles can be also be seen in the landmark case of Mulcahy v R[2] In the case, the House of Lords submitted that “A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act by unlawful means.
So long as such a design rests in intention only it is only indictable. When two agree to carry it into effect, the very plot is an act in itself and the act of each of the parties promise against promise actus contra actum capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means.”
This case paved the way for criminal conspiracy in India. After the above-mentioned judgment, the Indian Penal Code was amended in 1870 to insert S.120-A IPC.
Definition of ‘Conspiracy‘
The offence of criminal conspiracy is defined under Section 120-A of Chapter V-A of the Indian Penal Code, 1860. According to Section 120-A, when two or more persons come together and agree to do, or cause something to be done, which constitutes an illegal act or a legal act obtained of carried forward by illegal means, such persons would be guilty of the commission of the offence of criminal conspiracy.
However, a unique feature of the offence under section 120A is that an “agreement to commit an offence” can by itself amount to a criminal conspiracy. This means that it is sufficient for the prosecution to prove that there was an agreement between two or more persons.
Therefore the basic ingredients of criminal conspiracy are,
1) There must be two or more persons;
2) There must be an illegal act or an act in an illegal way;
3) There must be a meeting of minds and
4) There must be an agreement regarding the same thing.
In Pratapbhai Hamirbhai Solanki vs State Of Gujarat & Anr [3] the Supreme Court held that the most important ingredient is the intent to cause an illegal act.
Punishment for Conspiracy
Section 120-B prescribes the punishment for the commission of the crime of criminal conspiracy. According to Section 120-B, if the parties involved in the conspiracy, conspired to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or more, shall be punishable in the same manner as if he/she had abetted the commission of such an offence, if no explicit punishment for the commission of such a conspiracy has been provided for, by the Code.
However, if the parties involved in the conspiracy, conspired to commit an offence punishable with terms not prescribed previously, such persons shall be sentenced to imprisonment for a term not exceeding six months, or a fine, or both.
Proof of Conspiracy
Proof in the offence of criminal conspiracy is complicated as it by and large a psychological offence and the proof of such an act is inherently difficult. Section 10 of Indian Evidence Act, 1872 states:
“Things said or done by conspirator in reference to common design where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.”
In other words, anything said/done/written by a conspirator which is related to the common intention of all other conspirators after such intention was first thought of or entertained by them is a relevant fact against each co-conspirator. This is the principle of collective liability. This principle is also found in Section 34 of the IPC which describes the liability in acts done by several persons in furtherance of common intention. It says, “When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”
In Hari Om vs State of Uttar Pradesh[4] the Supreme Court held that it is not necessary that the common intention to carry out the conspiracy was pre-meditated or formed prior to the commission of the illegal act. It essentially means that common intention can also be formed at the time of occurrence of the conspiracy.
In Sachin Jana and Another vs State of West Bengal[5], the Supreme Court recognised that direct proof of common intention is rarely available, and therefore, such intention is to be inferred from the proven facts/circumstances of the case. This means that even without the existence of any direct evidence, circumstantial evidence can be used to ascertain the guilt of the accused and to proof common intention.
Landmark Judgements
The scope and nature of criminal conspiracy is always changing and growing. The offence of conspiracy itself is often complex and difficult to ascertain because the act of ‘scheming’ is always done in secrecy. Since its addition to the Indian Penal Code, there have been various landmark judgements that attempt to interpret the offence in its truest form.
In Topan Das v. State of Bombay[6] stated that it was established in the rule of law that the offence of conspiracy cannot apply to a singular person and that there should be at least two persons for the same, and can be never be held guilty of criminal conspiracy since one cannot conspire with oneself.
In B.H. Narasimha Rao vs Government Of Andhra Pradesh[7] the appellant was convicted of an offence of criminal conspiracy along with seven others. However, he alone was charged with offences under Ss. 120-B, 409 and 471, IPC under section 5(1)(c) and 5(l)(d) read with section 5(2) of the prevention of corruption Act, 1947. Simultaneously, all the other co-conspirators were acquitted by the Trial Court and the High Court. In the end, the Supreme Court acquitted the accused on the facts that there had to be another person to communicate with and carry out the agreement and that a single person can never be accounted for conspiracy.
In Leo Roy Frey V. Suppdt. Distt. Jail [8] the court held that “The offence of conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients they are, therefore quite separate offences”
In The State of Andhra Pradesh v. Subbaiah,[9] the Supreme Court contended that “where the matter has gone beyond the stage of mere conspiracy and offences are alleged to have been committed in pursuance thereof the accused can be charged with the specific offences alleged to have flown out of the conspiracy along with the charge of conspiracy.” The court stated the offence of conspiracy is a separate offence and an individual can be separately charged with respect to a conspiracy along with any other offences resulting of that conspiracy.
In State v. Nalini[10] held that once the object of the conspiracy has been achieved, any subsequent actions which may be unlawful in nature, would not make the accused party to the conspiracy.
In Firozuddin Basheeruddin and others vs. State of Kerala[11], it was held that it is not necessary that each one of the co-conspirators must have actively participated in the commission of the offence or was involved in it from start to finish. If there is a combination by agreement, which may be an express or implied or in part implied, then they are considered to be a party to the conspiracy.
Need for Reform
It has been stated that the law of criminal conspiracy is an instrument for governmental oppression. Needless to say that the Indian Criminal Law Amendment Act, 1913 which is the provision that introduced conspiracy as a criminal offence rather a civil offence, was passed as an emergent piece of legislation and this measure was motivated by political expedience.[12]
No efforts were made to deal with the matter in the ordinary and regular way. It was neither circulated for opinion among the judicial and executive officers of government nor the representative public men and bodies were consulted.
The result was that a piece of legislation was hurriedly enacted. The law commission has also stated that there needs to reform of section 120-A as the provision has wide-sweeping powers and also stated that there is no need for criminal conspiracy to punish conspiracies to commit petty offences, as the idea seems to wide-reaching and a severe form of punishment. In England, which as mentioned is the inspiration for Indian law of conspiracy, the provision and offence of conspiracy are not as widely drawn, as it only considered a common-law misdemeanour except in the cases of murder.
Conclusion
The offence of criminal conspiracy is an exception to the general rule that in order to constitute a crime, both mens rea and actus rea must be involved, here merely guilty mind is sufficient to render a person guilty if there was an agreement was to commit an illegal act.
However, an act, or actus reus becomes essential again if the object of the agreement was to do a lawful act by unlawful means. The criminal conspiracy can be inferred from the surrounding circumstances and the conduct of the suspected or the accused person i.e using both direct and circumstantial evidence. A person found to be guilty of criminal conspiracy is punished under Section 120B of the Indian Penal Code, 1860. This section of the Code is slowly losing its essence and there is a need to ensure that due diligence is maintained in cases of criminal conspiracy. The well-established principle of criminal law, ‘fouler the crime, higher the proof required’ must be kept in mind, and the sanctity of law upheld.
[1] 77 Eng. Rep. 813 (K.B. 1611)
[2] (1868) LR HL 306
[3] (2013) 1 SCC 613
[4] 1993 1 Crimes 294 (SC)
[5] 2008 (2) scale 2 SC
[6] AIR 1956 SC 33
[7] 1995 CriLJ 4181
[8] AIR 1958 SC 119
[9] 1961 (2) SCJ 68
[10] 1999 5 SCC 253
[11] 2001 SCC (Crl) 1341
[12] See statement of Objects & Reasons, Indian Criminal Law amendment Bill, 193
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