Crux of Criminal Conspiracy Under IPC, 1860


Planning the commission of a crime is no less than a crime actually being committed. This is why there exists a separate section in the IPC to categorize this as an offence. A crime is an act prohibited by law which violates public peace and interest. Such prohibition is strengthened by coupling it with the consequence of punishment. Generally, to commit a crime there must be actus reus, i.e., an act or conduct, that is followed by means rea, which suggests ill will or criminal intent.  Other criminal offences generally require the simultaneous occurrence of wrongdoing and malice, whereas in criminal conspiracy one is punished just at the stage of mens rea.


Introduction


Criminal conspiracy was inserted as Chapter VA in the IPC in 1913 because at that particular time, conspiring to commit a crime became very prevalent in India and there were no laws or statutes which had the provisions to deal with it. Earlier, Conspiracy was considered a tort until its incorporation within the Criminal provisions. Criminal conspiracy under the IPC is a substantive offence in itself and punishable separately. There are very rare instances where people are tried for commission of the substantive act of criminal conspiracy.

Definition of Criminal Conspiracy

“The offence of conspiracy to commit a criminal offence is different from how a crime is defined Generally. That’s the aim of conspiracy because conspiracy precedes commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed doesn’t require the element of conspiracy together with its ingredients, therefore they fall under separate offences.”[1]

Section 120A defines criminal conspiracy. When two or more persons agree to execute a plan, which is illegal in nature, the conspiracy becomes an act in itself. The act of each party, promise against promise actus contra actum capable of being enforced, if lawful, is punishable for a criminal object or for the use of criminal means.[2]

Section 120A of the Penal Code reads as follows-

120A. Definition of criminal conspiracy. —When two or more persons agree to do, or cause to be done,—
a. an illegal act, or
b. an act which is not illegal, but 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 completed 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.”
This definition thus made conspiracy punishable as a substantive offence[3], as a form of abetment[4], conspiracy to wage war against the Government of India[5] and involvement[6] in other specific offences.[7]


Ingredients of Section 120A

The constituent elements of the offence of criminal conspiracy are:

(1) an agreement between two or more persons,
(2) to do an illegal act, or
(3) to commit a legal act by illegal means, and
(4) an overt act committed in pursuance of the conspiracy[8]

The core of criminal conspiracy is the agreement and association to break the law or to do an illegal act. An agreement to do an illegal act which amounts to a conspiracy is punishable as long as the members of the conspiracy remain in the agreement and as long as they are acting in accord and in furtherance of the object for which they entered into an agreement.[9]

(1.1) Two or More Persons:

When two or more person agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and although that no step is taken by any such person to hold out their common purpose, a criminal offence is committed by each one who joins within the agreement. Thus, there have to be two conspirators and there may be more than that.[10] It is not necessary that every one of the persons involved, agrees to the illegal act or acts or that they should be capable, in law, of committing an offence in accordance with that act. It is not an essential element of criminal conspiracy that all the people involved should agree to just a sole illegal act.

(1.2) Agreement

“Consensus ad idem is an agreement between different people or groups about the exact meaning of a contract that is necessary before the contract is considered to be legally acceptable”.[11] To prove criminal conspiracy, there must be evidence or proof to show that there was an agreement between two or more persons to commit an offence wherein they both agreed to the same thing in the same sense. In the Parliament attack case, the accused had never contacted the deceased terrorist but had helped one of the conspirators to flee to a safer place after the incident and thus was not held guilty as a conspirator.[12]

In the case of State of Tamil Nadu v. Nalini (Rajiv Gandhi assassination case) the Supreme Court had laid following important points relating to criminal conspiracy:

(1) Association of the accused with one of main accused or even his knowledge about conspiracy would not make him a conspirator as knowledge is sine qua non of agreement,

(2) Accused harboring main accused persons knowing fully well their involvement in the commission of an offence in itself is not sufficient to infer that he was a member of the conspiracy,

(3) If the accused had no knowledge of the conspiracy, then his mere association with the main conspirator would not make him member of the conspiracy,

(4) The conspirator doesn’t need to be present at the scene of the crime.[13] However, conspirators may be bound in a chain like, A enrolling B, B enrolling C and so on and all will be members of a single conspiracy if they so intend and agreed to.

(2) Illegal Act

There can be no conspiracy if the act is not illegal. According to the IPC, “illegal”[14] applies to everything which is an offence prohibited by law or which furnishes ground for an action. “Act” includes an illegal omission also[15]. Actus reus during a conspiracy is the agreement and the plan to execute the illegal act and not the actual execution of it. It is not sufficient that two or more persons have to conduct the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose.[16] However, it is not obligatory that each conspirator should have been connected to the others.

If the aim of the conspiracy is just committing an act which isn’t illegal, though it is in the knowledge and belief that that act may end in the death or injury of people, that does not amount to do an illegal act. A and B agree that they will induce Y to point his finger at X believing that Y is endowed with some special power which will enable him to kill by doing so, then there is no agreement to do an illegal act and no conspiracy to commit an offence.[17]

(3) Illegal Means

Agreement to commit an act which may be lawful or illegal but by unlawful means accounts to a conspiracy. The conclusion or aim does not justify the manner to do it. For instance, it is not wrong to earn profit in a construction business but to use cheap products and show them to be authentic on legal papers so that you can earn more profit is illegal.

(4) Overt Act

The overt act necessary to be proved to establish conspiracy includes
(i) acts signifying agreement,
(ii) acts preparatory to the offence, and (iii) acts constituting the offence itself[18]

Conviction

It is not essential that any more than one person should be convicted of the offence of criminal conspiracy. It is enough that the court is in a position to find out that two or more persons were actually concerned in the criminal conspiracy. A charge of conspiracy may prejudice the accused because it’s forced them into a joint trial and therefore the court may consider the whole mass of evidence against every accused. The prosecution has to produce evidence not only to point out that every accused has knowledge of object of conspiracy but also of the agreement. A mere suspicion, without the presence of any direct or circumstantial evidence instituting the prior meeting of minds, cannot be the grounds for conviction.[19]


Punishment for Criminal Conspiracy

The offence of criminal conspiracy is punishable under Section 120B of the Indian Penal Code, 1860.

“120B. Punishment of 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 2 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/ fine or with both.

Section 120B has two categories: –

1. Conspiracy to commit a grave offence– Criminal conspiracy to commit an offence punishable with death, imprisonment for all times or rigorous imprisonment for a term of two years or upwards. Punishment as if he had abetted such offence.

2. Conspiracy to commit other offences– Imprisonment of either description for a term not exceeding six months or with fine or with both.


Conclusion

The crux of criminal conspiracy does not lie in committing the act or enacting the goal for which the conspiracy is initially made. Nor does it lie in attempting to do any of the acts or in persuading others to do them, but its crux is in the very chalking up of the plan of action or agreement between the parties. The gist of it is an agreement to interrupt or break the law. Conspiracy may be an affair of conjecture gathered from some criminal acts of the members accused, executed in implementation of a comprehensible criminal purpose common among them. The essence of a criminal conspiracy is the unlawful union and usually, the offence is absolute when the amalgamation is framed[20]. Unless the statute so requires, no overt act has to be done in advancement of the conspiracy, and the aim of it need not be accomplished, to constitute an indictable offence. Each conspirator plays his separate part in one integrated and united effort to attain the common purpose.[21] Every one of them is aware that they are a part of general conspiracy but it is not necessary for them to know each and the details of the conspiracy.
The wicked plan of action could also be promoted by some people in which some may opt out along the way and some may enter at a later phase, but the conspiracy continues till it’s called off. The conspiracy may develop in the consecutive stages. Many people contradict or oppose the strictness towards the offence of conspiracy but one should consider that it is not punished for the planning of an execution but what could result out of it. If it is not stopped in the preparation stage it may lead to some serious consequences.


[1] Leo Roy Frey V. Suppdt. Distt. Jail (AIR 1958 SC 119)

[2] Mulcahy v. R., (1868) 3 HL 306

[3] Section 120A and 120B, Indian Penal Code, 1860

[4] Section 107, Secondly, Indian Penal Code, 1860.

[5] Section 121A.

[6] Criminal Conspiracy By Kanika Kalra September 3, 2019 , http://lawtimesjournal.in/criminal-conspiracy-2/

[7] Section 310, 311, 400, 401 and 402.

[8] State of Rajasthan v. Jaigovind, AIR 1951 Raj 89

[9] P.K.Narayanan v. State, 1995 (1) SCC 142

[10] State of Tamil Nadu v. Nalini, 1999 Cr LJ 3124 (SC)

[11] Meaning- https://dictionary.cambridge.org/dictionary/english/consensus-ad-idem

[12] NCT of Delhi v. Navjot Sandhu, 2005 Cr LJ 3950 (SC)

[13] AIR 1999 SC 2640

[14] Section 43, Indian Penal Code,1860

[15] Section 33, Indian Penal Code,1860

[16] Halsbury’s Laws of England, 4th Edition, Vol.11, para 58, p.44

[17] Emperor v. Shanharaya, AIR 1940 Bom 365

[18] Prof. SN Mishra,  Indian Penal Code, 21st  Edition, 2018, Central Law Publications, p.311

[19] PK Narayanan v. State of Kerala [1995] 1 SCC 142

[20] Yakub Abdul Razak Memon Vs. The State of Maharashtra through CBI, Bombay Criminal Appeal No. 1728 of 2007

[21] Mohd Hussain Umar Kochra v. KS Dalip Singhji AIR 1970 SC 45

Anushka Singh from Sharda University, Delhi

Anushka aspires to excel in the legal field and actively work towards contributing to the society as a humanitarian. She is a very optimistic person who dreams to achieve great heights while staying grounded

Editor: vatsala sood

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