The offence of criminal conspiracy and its section( section 120A & 120B) came into existence by the Criminal Law (Amendment) Act, 1913. It is an exception to the general law where intent alone doesn’t constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Conspiracy has been made an offence with the aim to curb immoderate power to do mischief which is gained by a combination of the means. Offence of criminal conspiracy has its foundation in an agreement to commit an offence.
Ingredients
The ingredients of this offence are-
- That there must be an agreement between the persons who are alleged to conspire; and
- That the agreement should be
- for doing an illegal act or
- for doing by illegal means a lawful act.
A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During this subsistence, any act done by one of the parties to it related to the agreement, will come under the purview of this section.
Two or more persons needed
In Topandas v State of Bombay [1], it was held that there must be two or more persons and one person alone can never be held guilty of criminal trespass for the simple reason that one cannot conspire with oneself.
In Bimbadhar Pradhan v State of Orrisa[2], it was held that it is not essential that more than one person should be convicted of the offence of criminal conspiracy. All that is required is that the position is such that the court is aware that two or more persons were actually concerned in the criminal conspiracy.
Under the common law since husband and wife constitute one person there cannot be any conspiracy to commit an offence if husband and wife are the only parties to an agreement. However, this state of law does not exist in India, where husband and wife by themselves alone can be parties to a criminal conspiracy. It was held in R v Charstny [3]that where the husband is a party with some others in a conspiracy and his wife joined him in that with knowledge that he was involved with others to commit an unlawful act; she would be guilty of criminal conspiracy.
Agreement is the gist of the Offence
Meeting of minds is an essential. However, mere knowledge or discussion is not sufficient. It is intention to commit crime and joining hands with persons having the same intention. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish that offence be committed. In the absence of an agreement, a mere thought to commit a crime doesn’t constitute the offence. The offence of conspiracy is a substantive offence. It renders the mere agreement to commit an offence punishable even if no offence takes place pursuant to that agreement.
There is a clear difference between an agreement to commit an offence and an agreement of which either the object or methods employed are illegal but do not constitute an offence. In the case of the former, the criminal conspiracy is completed by the act of agreement; in the case of latter, there must be some act done by one or more of the parties to the agreement to effect the object thereof, that is, there must be an overt act.
Participation
It is not necessary that all conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy.
Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences. It is not necessary that all the conspirators must know each and every detail of conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial act. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. The reason is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and Support of the group as a whole to warrant treating each member as a casual agent to each act.
Actus reus
The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it.
Overt act
In a case where the agreement is for accomplishment of an act which itself constitutes an offence, then in that event, unless the Statute so requires, no overt act is necessary to be proved by the prosecution because criminal conspiracy becomes an offence once the agreement is established. 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 any of the acts in furtherance of the commission of the offence do not strictly amount to an offence.
In Nellai Ganesan v State[4], a business man was in great need of money for completing the construction of a theatre complex. He was approached by a person who told him that his financer friend would help him with money. This was followed by a number of meetings between him and the team of financers during which the documents were executed and the money was given in form of cash. This cash was found to be counterfeit currency and every member of the team was held to be guilty of criminal conspiracy and cheating under the Indian Penal Code.
In Mir Naqvi Askari v CBI[5], officials of a nationalized bank in violation of departmental instructions allowed advanced credits on banker’s cheques to the account of a customer dealing in securities. Advanced credits for allowed before the cheques were sent for clearance and in some cases even before the checks were received. This allowed the customer to take pecuniary advantage by over drawing money from his account which he was not entitled to. Public funds were thus misused. They were held to be guilty under this section except for one of them because of lack of evidence.
[1] (1955) 2 SCR 881
[2] AIR 1956 SC 469
[3] (1991) 1 WLR 1381 (CA)
[4] 1991 Cr LJ 2157
[5] (2009) 15 SCC 643
