The offence of ‘criminal conspiracy’ originally was not in the IPC. It was inserted by the Amendment Act of 1913. Section 3 of the Amendment Act had inserted Chapter VA which consists of two sections only, section 120A which defines the offence of ‘criminal conspiracy’ and section 120B which provides punishment therefor.
(1) DEFINITION OF CRIMINAL CONSPIRACY
The common law definition of ‘criminal conspiracy’ was first time defined in 1832 by Lord Denman. He said that an indictment for conspiracy must “charge a conspiracy to do an unlawful act by unlawful means”.[1]
The definition was elaborated and reiterated by House of Lords in later cases. 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, or to do a lawful act by unlawful means. So long as such a design rests in intention only it is not 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 of for a criminal object or for the use of criminal means. All most same definition has been accepted by the IPC.
Section 120A of IPC defines ‘criminal conspiracy’ to mean that 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 as criminal conspiracy. 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 furtherance thereof. Further, the explanation to the section made it clear that it is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
Dr. Hari Singh Gour had elaborated criminal conspiracy by stating that in order to constitute a single general conspiracy there must be a common design. The evil scheme may be promoted by a few, some may drop out and some may join at a later stage, but the conspiracy continues until it is broken up. The conspiracy may develop in successive stages. There may be general plan to accomplish the common design by such means as may from time to time be found expedient.[2]
(1.1) NATURE AND SCOPE OF CRIMINAL CONSPIRACY
F Conspiracy is a substantive offence. The offence of criminal conspiracy exists in the very agreement between two or more persons to commit a criminal offence, irrespective of the further consideration whether or not the offence has actually being committed.
F Conspiracy is a continue offence and it continues to subsists and committed, whenever one of the conspirators does an act or a series of acts. So long as its performance continues, it is a continuing offence, till it is executed or frustrated by choice or necessity.
F It is immaterial whether anything has been done in pursuance of an agreement. If there are more than two persons involved in a conspiracy and if it is shown that the object of conspiracy has been achieved, and even some of other accused had been acquitted, the remaining accused [even if it is one] could be convicted under 120B penal code.
F The essentials of a single conspiracy required that there must be a common design and common intention of all to work in furtherance of the common desire. A single conspiracy is separate and distinct from separate acts committed by different people without a common purpose.
F It is not necessary for all the conspirators to know each other they may adopt many devices to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with the object to realm an end of which a collaborator must be aware of and in which one of them must be interested. There may be unity of objects of purpose, but there may be plurality of means, sometimes even unknown to one another among the conspirators.
F In order to proof a criminal conspiracy punishable under section 120B, there must be direct or circumstantial evidence to show the act, there is an agreement between two or more persons to commit an offence. A conspiracy can be informed even from circumstances giving rise to a conclusive on irresistible inference of an agreement between two or more persons to commit an offence.
F The evidence must show a common concerted plan so as to exclude a reasonable possibility of the acts of the conspirators having been separately and connected only by co-incidence.
F Every conspirator is liable for all the acts for the co-conspirators, if they are towards attaining the goals of conspiracy, even if some of them had not actively participated in the commission of the offences.
F When an offence committed by different person acting in same manner but independently can’t be said that there was necessarily a conspiracy.[3]
(2) INGREDIENTS OF CRIMINAL CONSPIRACY
It is clear from section 120A that 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. It is immaterial whether this is found in the ultimate objects. The ingredients of the offence of criminal conspiracy are :
(i) There should be an agreement between two or more persons (agreement);
(ii) Such agreement shall be to do or cause to be done an illegal act or an act which is not illegal by illegal means (unlawful combination); and
(iii) Some act besides the agreement is done by one or more parties to such agreement in pursuance thereof (act in pursuance thereof).
(2.1) AGREEMENT BETWEEN TWO OR MORE PERSONS
Agreement is the rock bottom of criminal conspiracy. Its essence is the unlawful combination. It consists of this scheme or adjustment between two or more persons which may be expressed or implied or partly expressed or partly implied. Agreement is sin qua non for constituting the offence of criminal conspiracy. It is complete when the combination is framed to commit an offence.
To constitute a conspiracy meeting of minds of two or more persons for doing an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every details of conspiracy nor be a participant at every stage. Neither it is necessary that every man of conspirators take active part in commission of each and every conspiratorial act. Conspirators may appear and disappear from stage to stage in course of conspiracy. It is necessary that they should agree for design or object of the conspiracy.
A conspiracy involved an agreement express or implied. A conspiratorial agreement is not a contract, not legally binding because it is unlawful. But as an agreement it has its three stages, namely, (i) making or formation; (2) performance or implementation; (3) discharge or termination.
When the conspiratorial agreement has been made, the offence of conspiracy is complete, it has been committed, and the conspirator can be prosecuted even though no performance had taken place. But the fact that of the offence of conspiracy is complete at that stage does not mean that the conspiratorial agreement is finished with. It is not dead. If it is being performed, it is very much alive. So long as the performance continues, it is operating, it is being carried out by the conspirators, and it is governing or at any rate influencing their conduct. The conspiratorial agreement continues in operation and therefore in existence until it is discharged (terminated) by completion of its performance or by abandonment or frustration or, however, it may be.[4]
Agreement to carry out the object of the intention.- The Supreme Court held that the offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only has the intention but there had to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever horrendous it may be, that offence be committed.[5]
Each conspirator plays his separate part.- It was noted that to establish an offence of criminal conspiracy it is not required that a single agreement should be entered into by all the conspirators at one time. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose.[6] There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others.
It may be concluded that mere knowledge, or even discussion, of the plan is not, per se enough to establish criminal conspiracy. Meeting point of two or more persons is necessary. Conclusion of meeting point does not required express agreement. The agreement between the accused persons may be to do or continue to do something.
(2.2) AGREEMENT TO DO OR CAUSE TO BE DONE AN ILLEGAL ACT
The gist of the offence of criminal conspiracy is to break the law. There is no condition imposed in the provision that all the party aggrieved to do a single act. The conspiracy may comprise the commission of a number of illegal act. It is sufficient if the agreement commit the illegal act is established. In such a case, all of them will be held liable for the offence of conspiracy. This implies that establishing the charge of conspiracy knowledge about the involvement indulgence and either an illegal act or legal act by illegal means is necessary. It is immaterial whether the illegal act is the ultimate object of such agreement.
The gist of the offence is illegal agreement.- The offence under section 120B is an agreement between the parties to do a particular act. Association of relation to lead a conspiracy is not enough to establish to kill the deceased. The offence of conspiracy is complete when two or more conspirators have agreed to do or cause to be done an act which is itself an offence, in which case no overt act need be established.
In some cases knowledge of illegal act is necessary.- When the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do.
Need agreement, not completion of the act.- The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of IPC, an act would be illegal if it is an offence or if it is prohibited by law.
A conspiracy may further be a general one and a separate one. A smaller conspiracy may be a part of a larger conspiracy. It may develop in successive stages. New techniques may be invented and new means may be devised for advancement of common plan. For the said purpose, conduct of the parties would also be relevant.
The agreement not illegal at its inception would become illegal by subsequent conduct and an agreement to do an illegal act or to do a legal act by illegal means, must be viewed as a whole and not in isolation. It was also implied that the agreement shall continuing till the object is achieved. The agreement does not get terminated by merely entering into an agreement but it continues to subsist till the object is either achieved or terminated or abandoned.
(2.3) ACT IN FURTHERANCE OF AGREEMENT
The law of criminal conspiracy as outlines in the Penal Code text the following two forms : (i) where over act is not necessary and an agreement per se is made punishable; and (ii) where over act is necessary. In the former a near agreement to commit an offence amounts to criminal conspiracy. In the later form, a mere agreement to do or caused to be done an illegal act or a legal act by illegal means does not amount to criminal conspiracy unless a party to the agreement commits an over act in pursuance of agreement.
When any overt act by the accused not necessary.- In the case of conspiracy to do a legal act by illegal means there ought to be some over act which should have been committed by one or more parties to the assignment, apart from the agreement itself. Where the agreement between the accused is a conspiracy to do or continue to do something, which is illegal, it is immaterial whether the agreement to do any of the acts in furtherance of the commission of the offence do not strictly amount to an offence. The entire agreement must be viewed as a whole and it has to be ascertained as to what in fact the conspirators intended to do or the object they wanted to achieve.
Where the conspiracy alleged is with regard to commission of a serious crime of the nature, then in that event mere proof of an agreement between the accused for commission of such crime alone is enough to bring about a conviction under section 120B and the proof of any overt act by the accused or by any one of them would not be necessary.
Conspiracy must be put to action.- A criminal conspiracy must be put to action and so long a crime is merely generated in the mind of the criminal, it does not become punishable. Thoughts, even criminal in character, often involuntary, are not crimes but when they take concrete shape of an agreement to do or cause to be done an illegal act or an act which is not illegal but by illegal means then even if nothing further is done, the agreement would give rise to a criminal conspiracy.[7]
(3) PUNISHMENT FOR CRIMINAL CONSPIRACY
According to section 120B, 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 IPC for the punishment of such a conspiracy, be punished in the same abetted such offence.
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.
Once the Court finds an accused guilty of Section 120B, where the accused had conspired to commit an offence and actually committed the offence with other accused with whom he conspired, they all shall individually be punishable for the offence for which such conspiracy was hatched.
Criminal Conspiracy under section 120B of IPC, where appellants convicted for crediting bankers’ cheques without them having been presented or sent for clearance. The court held that documents for the purpose of giving credit in the account of a customer cannot be prepared in anticipation of receipt of a cheque. Fact that credit and debit vouchers were prepared and other registers were filled up, although the cheques were not in physical possession of the bank, proves the existence of criminal conspiracy between the ultimate beneficiary and some of the officers of the bank was established.[8]
Extra territorial jurisdiction.- The appellant a NRI who never visited India in relation to criminal conspiracy contented that no proceedings can be initiated against him without approval of Central Government. The court held that physical absence of appellant irrelevant. The fraud committed by sending forged letters to India cannot be treated as an offence committed outside India. Therefore, a proceeding against appellant is justified.[9]
The Division Bench held that though the conspiracy was entered in a foreign country and was completed as soon as the agreement was made, yet it was treated to be a continuous offence and the persons continued to be parties to the conspiracy when they committed acts in India.[10] Accordingly, it was held that the Indian Courts had jurisdiction to try the offence of conspiracy.
(3.1) CRIMINAL CONSPIRACY IS A SUBSTANTIVE OFFENCE
Section 120B of IPC makes the criminal conspiracy as a substantive offence which offence postulates an agreement between two or more persons to do or cause to be done an act by illegal means. If the offence itself is to commit an offence, no further steps are needed to be proved to carry the agreement into effect.
Criminal conspiracy in terms of section 120B is an independent offence. It is punishable separately. Prosecution, therefore, must prove the same by applying the legal principles which are applicable for the purpose of proving a criminal misconduct on the part of an accused. [11] To bring home the charge of conspiracy within the ambit of section 120B, it is necessary to establish conspiracy by direct evidence whenever necessary.
(3.2) CONSPIRACY IS A CONTINUING OFFENCE
A conspiracy always does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry out the design. It would be highly unreal to say that the conspiracy to carry out the gun power plot was completed when the conspirators met and agreed to the plot at Catesby.
The Supreme Court held that a conspiracy is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so. The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalised or done, attempted or even frustrated and vice versa.[12]
The question then is whether conspiracy is a continuing offence. Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy. Yet, the agreement does not come to an end with its making, but would endure till it is accomplished or abandoned or proved abortive.
(3.3) CONSPIRACY MAY BE PROVED FROM CIRCUMSTANCES
The Supreme Court emphasized 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. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn.[13]
The conspiracy is mostly proved by circumstantial evidence.- The Supreme Court after referring various earlier decisions opined that as conspiracy is mostly proved by circumstantial evidence, usually both the existence of conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. The court observed that one more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution.[14]
The courts, however, while drawing an inference from the materials brought on record to arrive at a finding as to whether the charges of the criminal conspiracy have been proved or not, must always bear in mind that a conspiracy is hatched in secrecy and it is, thus, difficult, if not impossible, to obtain direct evidence to establish the same.[15]
The manner and circumstances in which the offences have been committed and the level of involvement of the accused persons therein are relevant factors. For the said purpose, it is necessary to prove that the propounders had expressly agreed to or caused to be done the illegal act but it may also be proved otherwise by adduction of circumstantial evidence and/ or by necessary implication.
(4) DISTINCTION OF CONSPIRACY FROM ABETMENT AND COMMON INTENTION
The whole idea of provisions for common intention, abetment, conspiracy and common object is to capture everyone involved in a group crime, e.g. gang crime, particularly when it may be difficult to determine whom actually pulled the trigger, whom was the lookout, whom was the getaway driver, etc.
Whereas participation in the commission of the offence in furtherance of the common intention invites its application of section 34, instigation of a person to commit offence by aiding conspiracy under section 107 and agreeing to participate in criminal conspiracy under section 120A are the specific situations dictate role of the wrong doer. All three had their own area which is distinguished from each other. Let us understand basic differences between common intention, abetment and conspiracy.
(4.1) CRIMINAL CONSPIRACY AND ABETMENT BY CONSPIRACY
The offence of abetment by conspiracy is not similar to the offence of criminal conspiracy under section 120A. There are number of differences in terms of act upon agreement, nature of crime, criminal liability in nature of punishment, etc.
(1) Agreement or act upon agreement.- Abetment by conspiracy under second clause of section 107, an act or illegal omission must also take place in pursuance of the conspiracy and the act or illegal omission must also be in order to the doing of the thing agreed upon between them. But for an offence of criminal conspiracy under section 120A a mere agreement between two or more persons to commit a crime is the gist of the offence of conspiracy.
(2) Conspiracy is conduct crime whereas the abetment is individual crime.- In criminal conspiracy more than one person is necessary to be involved and there has to be an act or first step taken in the conspiracy. Therefore, conspiracy is not a result crime but a conduct crime. Nothing bad actually needs to happen but all that is required is that there are several people plotting together and that any one of them takes a first step towards advancing the plot. Unlike conspiracy, abetment is used on an individual that is linked to the crime. However, there are only four forms of abetment as specified under the section 107: one can instigate, command, engage or aid in the commission of the crime. In case of abetment, the crime itself does not need to have been carried out. The abetment of another abetment is also a crime, which can invariable pull in anyone higher up along the chain. This section can be read quite widely as the cases show.
(3) Participation in offence.- As regards the difference between abetment and conspiracy the former is the wider of the two; in point of fact it is a genus of which the offence of conspiracy is a species. Section 107(b) makes one person guilty of abetment in a conspiracy. The key point here is to remember that the abettor does not himself need to be part of the conspiracy e.g. the mastermind.
(4) Way of commitment.- Abetment may be committed in various ways enumerated in Sections 107 and 108 and conspiracy is one of them. In the next place abetment per se is not a substantive offence, while criminal conspiracy is a substantive offence by itself and is punishable as such.
(5) Punishment.- The punishment is imposed depending on variable circumstances explained in section 109 to 120. On the other hand, the punishment for criminal conspiracy is prescribed by section 120B is in two parts, namely for serious offences punishable with death, imprisonment for life and any rigorous imprisonment for more than two years – the conspirator is punished similar to abettor and in all other cases with imprisonment to six months and/or fine.
(4.2) COMMON INTENTION AND CRIMINAL CONSPIRACY
(1) Substantive offence.- Unlike conspiracy under section 120A and abetment under section 107, the ‘common intention’ is not a substantive section and can only be used alongside any other substantive section. The elements are that the criminal act is done by several persons to further a common intention.
(2) Contribution in criminal act.- Both offences distinguished themselves on the basis of contribution made by the person. Section 34 embodies the principle of joint liability in the doing of a criminal act, the essence of that liability being the existence of a common intention. Participation in the commission of the offence in furtherance of the common intention is necessary. On the other hand, criminal conspiracy under section 120B is a substantive offence. It differs from the other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement. Participation in illegal agreement to arranged plan to execute the illegal act is sufficient for conspiracy.
(3) Proving before the court.- Conspiracy from its very nature is hatched in secrecy and it is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming, but like other offences it can be proved by circumstantial evidence.
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[1] Jones’ case (1832 B & AD 345).
[2] Dr. Hari Singh Gour, Commentary on Penal Law of India, Vol.2, 11th Edn. p. 1138.
[3] Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326.
[4] Lord Pearson in Director of Public Prosecutions v. Doot, 1973 AC 807 at page 827.
[5] State through Superintendent of Police, CBI/SIT v. Nalini, (1999) 5 SCC 253.
[6] Kehar Singh v. State (Delhi Administration), 1988 (3) SCC 609 at 731.
[7] R. Venkatakrishnan v. Central Bureau of Investigation, (2009) 11 SCC 737 : AIR 2010 SC 1812.
[8] Mir Nagvi Askari v. CBI, AIR 2010 SC 528 : (2009) 1 SCC 643
[9] Ajay Agarwal v. Union of India, AIR 1992 SC 1637 : (1993) 3 SCC 609
[10] Abdul Kader v. State of Maharashtra, AIR 1964 Bom 133; also see U.S. v. Kissal, 218 US 601; Ford v. U.S., 273 US 593
[11] R. Venkatakrishnan v. Central Bureau of Investigation, (2009) 11 SCC 737 : AIR 2010 SC 1812.
[12] Ajay Agarwal v. Union of India, AIR 1992 SC 1637 : (1993) 3 SCC 609.
[13] Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra, (2008) 6 SCALE 469 in para 23.
[14] State (NCT) of Delhi v. Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600, (commonly known as the Parliament Attack case).
[15] R. Venkatakrishnan v. Central Bureau of Investigation, (2009) 11 SCC 737 : AIR 2010 SC 1812.