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“The mark of a civilized society is the willingness of the people to obey the unenforceable,” said Martin Luther King. Crime and Conspiracy are two facets of the same coin. While crime is bent on the idea of actus reus and mens rea, which is, a physical act and an ill intention, the conspiracy takes in a stance to correct the abuses acted out by the society that we live in.
The origin of the history of criminal conspiracy is not very recent. Considering the complex nature of the act of criminal conspiracy, the first time it was given legal bearing was in the renowned case known as the ‘Poulters’ Case” which was decided in 1611.
In the Poulters case, the defendants conspired and falsely brought a case of robbery, against a single person, named ‘Stone’. In place of the evidence presented in front of the grand jury, it held Stone innocent and acquitted him of all charges laid out by the defendants. Further, it was in the counter-suit filed by Stone that the court laid down the principle, what we know today as criminal conspiracy.
The court affirmed that the mere presence of conspiracy played out by the defendants, irrespective of whether Stone was falsely indicted or acquitted, lays down the gist of the offence and therefore can be considered as a crime and taken towards an indictment.
As we are aware that most of the laws governed in our country are inspired by English laws, the aforementioned theory can be retracted to a landmark case of Mulcahy v. R. 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. Criminal conspiracy was considered a civil offence, initially. It was considered under the following two sections of the law.
- Abetment in any offence; or
- Conspiracy with criminal intent.
However, it was later considered to be as a criminal offence. Chapter V-A had been introduced in the code by the Criminal Law Amendment Act (8 of 1913).
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 carried forward by illegal means, such persons would be guilty of the commission of the offence of criminal conspiracy. In simpler terms, conspiracy refers to the meeting of minds for the commission of an offence. However, no such agreement would constitute the offence of criminal conspiracy, unless and until an act is performed in furtherance of such an agreement. The explanation attached to Section 120-A makes it clear that it is immaterial whether the illegal act committed in furtherance of such an agreement, is the focal point of the agreement or, is merely incidental to the performance of the ultimate goal of the agreement.
Relevant legal provisions
The relevant legal provisions under the Indian Penal Code which deal with the offence of criminal conspiracy are as follows:
- Section 120A and Section 120B which deal with conspiracy as a substantive offence, i.e., an act, which in itself constitutes as a crime, and a punishment for the same;
- Section 107, which deals with conspiracy as it being a form of abetment;
- Section 121A which deals with an act constituting an offence of conspiracy to wage, attempt to, or abet war against the Government of India;
- Section 310, Section 311, Section 400, Section 401 and Section 402, which deal with conspiracy as constituting involvement in the commission of an offence.
Punishment for Criminal 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 an imprisonment for a term not exceeding six months, or a fine, or both.
Some of the salient features to constitute an offence of criminal conspiracy under the Indian Penal Code, are as follows:
- There must be two or more person involved in the commission of the offence of criminal conspiracy.
- There must be an agreement between the parties.
- Such an agreement must be for the commission of an illegal act or the commission of a legal act by illegal means.
- When the agreement is for the commission of a legal act by illegal means, an overt act must have been carried out by the parties in furtherance of the same, and the mere agreement is not sufficient to establish the commission of the crime.
- The parties must be aware of the illegal object or the illegal means, for the agreement to constitute as a criminal conspiracy. [i]
- The crime of criminal conspiracy is an incomplete or inchoate crime, which needs an additional substantive offence complementing it, to constitute as a crime punishable under the Code.
- Criminal Conspiracy does not take place when the parties involved are husband and wife, of minor age, or is the person against whom the offence was sought to be committed.
It is very pertinent by now that the scope of crime and conspiracy is ever-growing and will always be open for various interpretations. The offence of criminal conspiracy can be sometimes challenging and complex in its application by the judiciary since the “art” of scheming is mostly always carried out in secrecy. Since its inception, there have been various landmark cases that showcase the interpretation by the courts in ascertaining the offence in its truest form.
- Topan Das v.State of Orissa, AIR 1956 SC 33
The court in the aforementioned case stated that it is an established rule of the law that only one person cannot conspire 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.
- B. Narsimha Rao v. Govt. of A.P
In this case, 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.
- The State of Andhra Pradesh v. Subbaiah 1961 (2) SCJ 68
The Supreme Court in the above case 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 observed, “Conspiracy to commit an offence is itself an offence and a person can be separately charged with respect to such a conspiracy”.
- State(Delhi Admn) v. V.C.Shukla
In the above case the court observed that: “To prove a criminal conspiracy which is punishable under S. 120-B of IPC, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of an offence. It is true that in most cases it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence.”
- LK Advani v. CBI
In this case, the court submitted that since there was no prima facie evidence showing an alleged conspiracy and that the mere presence of a few assumed entries and loose sheets cannot entertain the above offence, the court humbly acquitted the accused on the counts of the offence of criminal conspiracy and further explained that to establish conspiracy there shall be evidence of acting on a common intention to carry out an illegal act.
The main object behind the introduction of Section 120A and 120B to the Code, appears to be an attempt to curb criminal thoughts before they take the form of a concrete criminal act, detrimental to the society at large. According to Section 43 of the Code, an ‘illegal’ act under the Indian Penal Code would imply the commission of an offence, or of an act forbidden by law, or of an act which lays ground for a civil liability to arise. For the establishment of the offence of criminal conspiracy, the existence of an agreement between the parties is a sine qua non. This agreement may be express or implied, the important factor is consensus ad idem, i.e., meeting of minds. The agreement must be read as a whole and the object ascertained. It is not necessary that more than one person must always be convicted for the offence of criminal conspiracy, it is sufficient if the court is convinced that more two or persons were actually involved in the conspiracy. The offender might join the conspiracy from the start itself or at any time before the completion of the objective of the agreement, irrespective of the time of joining, each party to the offence would be held equally responsible. A criminal conspiracy is said to persist as long as the parties to the agreement continue to act in furtherance of the objects of the agreement.
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 the 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. 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 to propagate true manifestation of the law and justice. 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.
Authors: Disha Tulsyan from Symbiosis Law School, Pune and Salonee Nayak from School of Law, University of Petroleum and Energy studies, Dehradun.
Editor: Anmol Mathur from Symbiosis Law School, NOIDA.