A crime is an act prohibited by law for it violated public interest. Such prohibition is under the threat of punishment. This means that if the act is committed, it would be followed by a specific punishment.
To constitute a crime therefore, it is essential that there is actus reus. i.e. an act or conduct, followed by means rea, which means ill will or criminal intent. Such an act with the intention shall have certain external consequences involving causing harm or injury to the community.
A crime could involve a positive or a negative act. Therefore doing an illegal act could amount to a crime as much as omission from doing an act which causes harm or injury to the other person.
For example, A with the intention of winning the elections in the Resident Welfare Association spreads around false information about B, a competition who is also seen as a viable candidate for the election. This not only leads to B losing the elections but also, B being portrayed in a bad light in the society. This affected B’s life, personally and professionally.
This thus amounted to Defamation under Section 499, punishable under Section 500 of the Indian Penal Code, 1860 (hereinafter referred to as IPC).
Unlike other criminal offences which require simultaneous occurrence of actus reus and mens rea, Criminal conspiracy is made punishable only at the stage of mens rea. Therefore, omission of the act in furtherance of intention is not an essential aspect of criminal conspiracy.
A brief history
Initially, Conspiracy was considered to be a civil wrong until its inclusion in the Criminal provisions. IPC made conspiracy punishable only in 2 formats.
- Conspiracy by way of abetment [1]
- Conspiracy involved in certain offences. For example- “thug”, “robbery” etc.[2]
However, in the year 1868, the scope of conspiracy was widened and it was agreed upon that when 2 or more agree to do an unlawful act, or to do a lawful act via unlawful means, this very plot forms becomes an act which is punishable. Therefore, under criminal conspiracy, the intention is punishable without performances of the explicit overt action. This widened scope was accommodated under Section 121A[3] of the Indian Penal Code, 1870. This provision did not require the act or omission to be is pursuance of the conspiracy.
This position then changed with the introduction of Chapter V-A in the IPC, which contain ss. 120A and 120B. These sections gave an extended meaning to the law of conspiracy in the country.
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 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.”
This definition thus made conspiracy punishable as a substantive offence[4], as a form of abetment[5], conspiracy to wage war against the Government of India[6] and involvement in other specific offences.[7]
Requirements under Section 120A, IPC
a. There should be an involvement of 2 or more persons
It is an established principle that conspiracy requires involvement of 2 persons and one alone cannot commit the offence of conspiracy.[8]
b. Who are in agreement with one another
c. This agreement relates to causing or getting done-
- an illegal act; or
- a legal act by illegal means.
This agreement would be designated as a conspiracy. ‘Agreement’ is thus the sine qua nonor the bottom rock for constituting conspiracy. It reflects the unlawful combination which in turn reflects the object and purpose of the conspiracy.
Section 120A was interpreted by the Court in Rajiv Kumar v. State of U.P[9]., where it was observed that–
“The essential ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy.”
Merely discussing or having knowledge or having any ill intentions of committing a crime would not constitute Criminal conspiracy. It is essential for the combination to commit the offence to be framed. Any action taken in pursuance of this unlawful agreement becomes immaterial. “Meeting of minds” between all the conspirators becomes an essential to commit such conspiracy.
The proviso to the provision further makes it clear that a mere agreement between the parties to commit an offence is clear and it shall not require commission of an overt act in furtherance of this conspiracy.
However, when the act being done is legal but through illegal means, then it is essential for the party to the agreement to do some overt act in pursuance of this agreement.[10]
Therefore, the essence of the crime of conspiracy, as captured under Section 120A is that there is a combination which is unlawful, i.e. to do an act which is unlawful or to do a lawful act via law unlawful means, and the offence is complete when the combination is complete. Criminal conspiracy is therefore called an inchoate offence because it does not require commission of any act in furtherance of this intention. Therefore, conspiracy is punishable not for what the conspirators do but what they agree to do. The essence of criminal conspiracy is what the parties agree to do and not the commission of the substantive crime.[11]
For example- Persons A, B, C and D conspire to rob the local bank for which they decide that A and B would threaten the bank manager at the counter, C would take care of the situation at the gate and D would keep the car ready for A, B, and C when they successfully rob the bank.
Here, there is a criminal conspiracy between A, B, C and D to rob the bank and they shall all be liable for the act.
Mere knowledge or discussion of the plan wouldn’t amount to conspiracy. The Supreme Court observed that-
“For a person to conspire with another, he must have knowledge of what the co-conspirators were wanting to achieve and thereafter having the intent to further the illegal act takes recourse to a course of conduct to achieve the illegal end or facilitate its accomplishment.”[12]
Therefore, the crime of conspiracy requires for there to be knowledge of the main object and purpose.[13]
In the above example, if D did not know of the objective and intention of A, B and C and was merely a taxi driver who was being paid for his job, then D would not be liable for the act as A, B and C would be. This is because he did not have knowledge of the main object and purpose for which A, B and C came together.
The objective behind making conspiracy a punishable offence is explained by the Supreme Court in the case of Devender Pal Singh v. State (NCT of Delhi)[14]. The Court explained that the rationale behind criminalizing conspiracy by stating that this agreement between the parties gives a momentum to commission of the crime. The Apex Court thus made the following observations-
“Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by the combination of means. The encouragement and support which co-conspirators give one another rendering enterprises possible, which if left to the hands of individual effort, would have been impossible, furnish the ground of visiting conspirators and abettors with the condign punishment.”
With respect to the responsibility of all the co-conspirators, it is not essential for the Conspirators to be a part of the conspiracy from its very inception. It is also not essential for the conspirators to continue till the very end. Conspirators may appear and disappear from stage to stage in course of conspiracy.[15]
Therefore, if A and B first decided to rob the bank and later C joined them, knowing what the agreement is for and having the intention to do the same, C later cannot ask for the relief that he was not a part of the conspiracy from its very inception and therefore, should not punished for the same.
The role of each conspirator in Conspiracy was explained by the Supreme Court of India as follows-
“The agreement is the gist of the offence. In order to constitute a single general conspiracy there must be a common design and a common intention of all to work in furtherance of the common design. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished. The evil scheme may be promoted by a few, some may drop put and some may join at a later stage, but conspiracy continues till it is broken up. The conspiracy may develop in successive stages. There may be a general plan to accomplish the common design by such means as may from time to time be found expedient. New technologies may be invented and new means may be devised for advancement of the common plan. A general conspiracy must be distinguished from a number of separate conspiracies having a similar, general purpose. Where different groups of persons cooperate towards their separate ends without any privity with each other, each combination constitutes a separate conspiracy. The common intention of the conspirators is then to work for the furtherance of the common design of his group only.”[16]
For the purpose of achieving the common object of Conspiracy to which everybody agreed to, there shall be various stages and it is not necessary for all the conspirators to be involved in all the stages. Under such chain of actions, it may also happen that the conspirators are not even aware what the other collaborators would or would not do. It is not necessary for all the conspirators to know all the stages of actions or be involved in every stage.[17]
Conspiracy is thus an inchoate and continuing offence. With every action or series of action of any one or all the conspirators, the offense subsists and continues. The offence continues till it is executed, rescinded or frustrated by choice or necessity.[18]
Coming to proving the existence of conspiracy, it is difficult to bring direct evidence for the purpose of proving this common object and common intention because, if nothing has been done in furtherance of this common intention, it is all in the head. In Subramaniam Swamy v. A Raja[19] it was held that “suspicion cannot take the place of legal proof and existence of a meeting between the accused persons is not by itself sufficient to infer the existence of criminal conspiracy.”
The crime of conspiracy is ‘hatched in secrecy and executed in darkness’[20] and therefore, can be proven only with the help of circumstantial evidence and evidence of various acts of the parties.
Conspiracy is therefore generally adduced from the illegal acts and omissions of the accused which is done in pursuance of the common intention and the apparent criminal purpose in common amongst them.
Punishment of Criminal Conspiracy
The offence of criminal conspiracy is punishable under Section 120B of the Indian Penal Code, 1860. The provision reads as follows-
“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 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.”
Section 120B thus categorizes conspiracy into 2 categories.
1. Conspiracy to a serious offence– This is an offense punishable with imprisonment of more than 2 years- In the absence of any express provisions in the IPC, it would be punishable in the same manner as if he had abetted the offence.
2. Conspiracy to commit other offences– Shall be punishable with uniform punishment, i.e. fine or imprisonment upto 6 months or both.
Section 120B is to be read with Section 196 of the Code of Criminal Procedure,1973, which reads as follows-
“196. Prosecution for offences against the State and for criminal conspiracy to commit such offence.
1. No Court shall take cognizance of-
a. any offence punishable under Chapter VI or under section 153A, of Indian Penal Code, or2 Section 295 A or sub section (1) of section 505] of the Indian Penal Code (45 of 1860 ) or
b. a criminal conspiracy to commit such offence, or
c. any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860 ), except with the previous sanction of the Central Government or of the State Government.
1A. No Court shall take cognizance of-
a. any offence punishable under section 153B or sub- section (2) or sub- section (3) of section 505 of the Indian Penal Code (45 of 1860 ), or
b. a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.]
2. No Court shall take cognizance of the offence of any criminal conspiracy punishable under section 120B of the Indian Penal code (45 of 1860 ), other than a criminal conspiracy to commit an offence] punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings: Provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be necessary.
3. The Central Government or the State Government may, before according sanction under sub- section (1) or sub- section (1A) and the District Magistrate may, before according sanction under sub- section (1A) and the State Government or the District Magistrate may, before giving consent under sub- section (2), order a preliminary investigation by a police officer not being below the 1 Subs. Act. 45 of 978, s. 16, for” a cognizable offence” (w. e. f. 18- 12- 1978 ) 2 subs. and ins by act 63 of 1980 s. 3 (w. e. f. 23- 9- 1980 ).”
Therefore, under the above mentioned circumstances, it is required for the Court to take the consent of the District Magistrate or the State Government before taking cognizance of the conspiracy. Either of them by virtue of Section 196(3) shall be required to hold preliminary investigation with the help of the Police, before granting the sanction or consent.
Illustrations
1. A,B and C conspired to kill P. Though A had rivalry with P, B and C decided to help A in conducting the act. A conducted the entire act of killing P by himself, however, used B and C’s help in carrying and disposing off the body and burying other evidence. Here, all 3 of them shall be guilty of P’s murder and criminal conspiracy.
2. P, Q, R and S together committed theft. Though P and Q knew the intention behind the act. R and S were made to see the gate and wait and drive the car. They were not aware of P’s and Q’s intention. There was therefore no meeting of minds before the 4 of them. Here, R and S shall not be convicted of criminal conspiracy as they did not carry the same intention as P and Q did.
Frequently Asked Questions
1. What does ‘meeting of minds’ mean?
In a conspiracy, it is essential for there to be meeting of minds. This means that all the persons involved in the conspiracy and aware of the objective and intention behind the conspiracy and is working towards the same. Thus agreement between the parties to do a particular offence is an essential.
2. What is an inchoate offence?
Generally, to constitute an offense in the Indian Penal Code, it is essential for there to be both actus reus and mens rea, i.e. ill intention and an act towards the same. However, Criminal Conspiracy is an exception to same. This offence is punishable at the stage of finding out ill intention itself. However, as they say, crime of conspiracy is ‘hatched in secrecy and executed in darkness’, therefore it becomes difficult to prove the offence through direct evidence.
Edited by Parul Soni
Approved & Published – Sakshi Raje
Reference
[1] A person is said to abet the doing of a thing by conspiracy if he engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing (S.107,I.P.C.).
[2] “Thugi” (S.31O); “Belonging to a gang of thieves” (S.401); “Being member of a gang of dacoits” (S.402).
[3] Indian Penal Code (Amendment) Act, 1870.
[4] Section 120A and 120B, Indian Penal Code, 1860.
[5] Section 107, Secondly, Indian Penal Code, 1860.
[6] Section 121A.
[7] Section 310, 311, 400, 401 and 402.
[8] Topan Das v. State of Bombay AIR 1956 SC 33.
[9](2017) 8 SCC 791.
[10] K Hashim v. State of Tamil Nadu (2005) 1 SCC 237.
[11] United States v. Nims, 524 F.2d 123, 126 (5th Circ. 1976).
[12]State of Maharashtra & Ors. v. Som Nath Thapa &Ors. (1996) 4 SCC 659.
[13] Mohd Amin v. Union of India (2008) 15 SCC 178.
[14] (2002) 5 SCC1661.
[15] Raghuvir Singh v. State of Bihar AIR 1987 SC149.
[16] Mohd Hussain Umad Kochra v. KS Dalip Singhji AIR 1970 SC 45.
[17] Ajay Agarwal v. Union of India AIR 1994 SC 1637.
[18] KR Purushothaman v. State of Kerala AIR 2006 SC 35.
[19](2012) 9 SCC 257.
[20] Badri Rai and Another v. The state of Bihar 1958 AIR 953.
