Criminal Conspiracy | Sec 120A- Indian Penal Code, 1860

Author: Mehrul Arora

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Meaning

The offence of criminal conspiracy has been added through the Criminal Law (Amendment) Act 1913. Criminal conspiracy is exception to the generallaw where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not onlythe intention but there has to be agreement to carry out the object ofthe intention, which is an offence.[1]

Section 120A. Definition of criminal conspiracy –

When two or more persons agree to do, or cause to be done, –

• an illegal act, or
• an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation. – It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

The essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both. Direct evidence to prove conspiracy is rarely available and, therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.[2]There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence.[3]

Elements

The elements of a criminal conspiracy have been stated to be:

(a) an object to be accomplished,

(b) a plan or scheme embodying means to accomplish that object,

(c) an agreement or understanding between two or more of the accused persons whereby, they; become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement. or by any effectual means,

(d) in the jurisdiction where the statute required an overt act.[4]

It is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design.[5]The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not,per se, enough.[6]

Ingredients

The basic ingredients of the offence of criminal conspiracy are –

• an agreement between two or more persons;
• the agreement must relate to doing or causing to be done either
• an illegal act; or
• an act which is not illegal in itself but is done by illegal means.[7]

An agreement between two or more persons –

In Topandas v. State of Bombay[8], which has been cited by the Supreme Court with approval in Haradhan Chakrabarty v. Union of India[9] it was laid down that “two or more persons must be parties to such an agreement and one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself.”

In the case of Ajay Agarwal v. Union of India and Ors[10]it was held that –

It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements:

(1) agreement;

(2) between two or more persons by whom the agreement is effected; and

(3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished.

In the case of Mohd. Arif v. State of NCT of Delhi[11], the Apex Court found that it was nothing but a well-planned conspiracy, in which apart from the sole appellant, some others were also involved and convicted the sole appellant for criminal conspiracy.

Agreement is the gist of the offence –

The gist of the offence is the bare engagement and association to break the law, whether any act be done in pursuance thereof by the conspirators or not.[12]Thus, the gist of the offence is an agreement to break the law.The parties to suchan agreement willbe guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it isnot an ingredient of the offence that allthe parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under s. 43 ofthe Indian Penal Code, an act would be illegal if it is an offence or if it isprohibited bylaw[13].

If pursuant to the criminal conspiracy the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission of the offences[14]. Evidence relating to transmission of thoughts leading to sharing of thought relating to the unlawful act is sufficient.[15]There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongstthe conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or over-shooting by some of the conspirators.[16]

Punishment

Section 120B. Punishment for criminal conspiracy –

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.

Earlier to the introduction of Section 120-A and B, conspiracy per se was not an offence under the Indian Penal Code except in respect of the offence mentioned in Section 121-A. However, abetment by conspiracy was and still remains to be an ingredient of abetment under clause secondly of Section 107 of IPC. The punishment therefor is provided under various sections viz. Section 108 to 117. Whereas under Section 120A, the essence of the offence of criminal conspiracy is a bare agreement to commit the offence, the abetment under Section 107 requires the commission of some act or illegal omission pursuant to the conspiracy. A charge under Section 107/109 should therefore be in combination with a substantive offence, whereas the charge under Section 120-A/120-B could be an independent charge.[17] This section applies to those who are the members of the conspiracy during its continuance. Conspiracy is intended to be treated as a continuous offence and whoever is a party to the conspiracy during the period for which he is charged is liable under Section 120B.[18]

Conclusion

Thus,one cannot conspire with oneself and in order to bring home the charge of criminal conspiracy there should be an agreement between the parties, that is, an agreement between two or more persons to commit an unlawful act or an act which is not illegal by illegal means and this offence is generally hatched in secrecy and circumstantial evidence is generally used to convict the conspirators under this offence. 

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[1] State of Tamil Nadu through Superintendent of Police,CBI/SIT v. Nalini, reported in (1999) 5 SCC 253.

[2]PratapbhaiHamirbhaiSolanke v. State of Gujarat, 2012 (10) JT 286: 2012 (10) SCALE 237.

[3] V. C. Shukla vs State (Delhi Administration), AIR 1980 SC 1382.

[4] Ram Narayan Popli v. Central Bureau of Investigation, (2003) 3 SCC 641.

[5]ShivnarayanLaxminarayan Joshi v. State of Maharashtra, AIR 1980 SC 439.

[6] Russell on Crime (12 Ed. Vol. I, 202); Kehar Singh &Ors vs State (Delhi Administration), AIR 1988 SC 1883.

[7] Yogesh v. State of Maharashtra, AIR 2008 SC 2991: 2008 CrLJ 3872; S. Arul Raja v. State of Tamil Nadu reported in 2010 (8) SCC 233.

[8] AIR 1956 SC 33.

[9] AIR 1990 SC 1210: 1990 CrLJ 1246.

[10]AIR 1993 SC1637.

[11] JT 2011 (9) SC 563.

[12] Mohammad Ismail, (1936) Nag 152.

[13] Major E. G. Barsay v. State of Bombay, AIR 1961 SC 1762.

[14] State of Himachal Pradesh v. Krishan Lal Pardhan and others, (1987) 2 SCC 17.

[15] Esher Singh v. State of A.P., (2004) 11 SCC 585.

[16] Yash Pal Mittal v. State of Punjab, AIR 1977 SC 2433.

[17] State (NCT) of Delhi v. Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600.

[18] Abdul Kadar Saleh Mohomed And Ors. v. State, (1963) 65 Bom LR 864.

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About the Author: Mehrul is a fourth-year law student at Law College Dehradun, Uttranchal University.

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