Research Paper

(for B.B.A. LL.B. (Hons.)

The Law of Criminal Conspiracy Section

120A & 120B of Indian Penal Code

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 LIST OF ACRONYMS & ABBREVIATIONS

AIR ALL I NDIA REPORTER

CR. L. J. CRIMINAL LAW J OURNAL
ICA INTERNATIONAL CENTRE FOR ARBITRATION
ICADR I NTERNATIONAL CENTRE FOR ALTERNATIVE DISPUTE RESOLUTION
NALSA NATIONAL LEGAL SERVICES AUTHORITY
SCC SUPREME COURT CASES
UNCITR THE UNITED NATION COMMISSION ON I NTERNATIONAL TRADE
V. VERSUS
WLR WEEKLY LAW REPORTS
 LIST OF CASES

1. TOPANDAS V S TATE OF BOMBAY

2. BIMBADHAR PRADHAN V S TATE OF ORRISA
3. R V CHARSTNY
4. NELLAI GANESAN V STATE
5. MIR NAQVI ASKARI V CBI
6. REG V. HODGE (1838) 2 LEW 227
7. FIROZUDDIN BASHEERUDDIN AND OTHERS VS. STATE OF KERALA, 2001 SCC (CRL) 1341
8. LEO ROY FREY V. SUPPDT. DISTT. J AIL (AIR 1958 SC 119)
9. STATE V. NALINI, (1999) 5 SCC 253
10. RAJIV KUMAR V. STATE OF U.P., (2017) 8 SCC 791
11. STATE (NCT OF D ELHI) V. NAVJOT SANDHU, AIR 2005 SC 3820
12. STATE OF MAHARASHTRA & ORS. V. SOM NATH THAPA &ORS., (1996) 4 SCC 659
13. SUBRAMANIAM SWAMY V. A RAJA, (2012) 9 SCC 257
14. SARDAR SARDUL SINGH CAVEESHAR V. STATE OF MAHARASHTRA [(1964) 2 SCR 378
 Abstract

The gradual evolution of the law of conspiracy, its widened scope and
general application can be traced in close association with the law of
principal and accessory. At Common law, Conspiracy had its origin
primarily as a civil wrong. It was originally used to explain the acts of
agreement of those who combined to carry on legal proceedings in a
vexatious or improper way.
When two or more people agree to do , or cause to be done,
1. an illegal act, or
2. 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.
 Introduction

I. PURPOSE OF INSERTION OF SECTION 120A & 120B IPC, 1860 The

underlying purpose for the insertion of Sections 120A and 120B IPC was to
make a mere agreement to do an illegal act or an act which is not illegal by
illegal means punishable under law. The criminal thoughts in the mind when
take concrete shape of an agreement to do or cause to be done an illegal act or
an act which is not illegal by illegal means than even if nothing further is done
an agreement is designated as a criminal conspiracy. The proviso to Section
120A engrafts a limitation 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.

II. INGREDIENTS OF CRIMINAL CONSPIRACY In Pratapbhai Hamirbhai

Solanki v. State of Gujarat and another, 4 the Hon’ble Supreme Court has
explained the ingredients of criminal conspiracy as under: - The most
important ingredient of the offence being the agreement between two or more
persons to do an illegal act. In a case where criminal conspiracy is alleged, the
court must inquire whether the two persons are independently pursuing the
same end or they have come together to pursue the unlawful object. The former
does not render them conspirators but the latter does. For the offence of
conspiracy some kind of physical manifestation of agreement is required to be
established. The express agreement need not be proved. The evidence as to the
transmission of thoughts sharing the unlawful act is not sufficient. A
conspiracy is a continuing offence which continues to subsist till it is executed
or rescinded or frustrated by choice of necessity. During its subsistence
whenever any one of the conspirators does an act or a series of acts, he would
be held guilty under Section 120- B of the Penal Code, 1860. Further citing
Ram Narayan Popli v. CBI, 5 under Para 22 of its verdict it was observed that
the elements of a criminal conspiracy have been stated to be (a) an object to be
accomplished, (b) a plan or scheme embodying means to accomplish that
object, (c) an agreement or understanding between two or more of the accused
persons whereby, they become definitely committed to cooperate for the
accomplishment of the object by the means embodied in the agreement, or by
any effectual means, and (d) in the jurisdiction where the statute required an
overt act. It has been further opined that the essence of a criminal conspiracy
is the unlawful combination and ordinarily the offence is complete when the
combination is framed no overt act need be done in furtherance of the
conspiracy, and that the object of the combination need not be accomplished,
in order to constitute an indictable offence. Law making conspiracy a crime is
designed to curb immoderate power to do mischief which is gained by a
combination of the means. The encouragement and support which co-
conspirators give to one another rendering enterprises possible which, if left to
individual effort, would have been impossible, furnish the ground for visiting
conspirators and abettors with condign punishment. The conspiracy is held to
be continued and renewed as to all its members wherever and whenever any
member of the conspiracy acts in furtherance of the common design.

III. INTRODUCTION In India the Law relating to criminal Conspiracy is

contained by Indian Penal Code, 1860. The function of the Code is to define the
offence and thereafter to prescribe its punishment. The provision was inserted
by virtue of Criminal Law (Amendment) Act, 1913. Conspiracy under the Indian
penal code originally was punishable only in two forms:- 1. Conspiracy by way
of abetment 2. Conspiracy involved in certain offence. In former an act or illegal
omission must take place in pursuance of conspiracy in order to be punishable
while in the latter membership suffices to establish the charge of conspiracy.
However the law of conspiracy was widened in 1870 by insertion of Section
121A, IPC. Under Section 121A, it is an offence to conspire to commit any of
the offences punishable by section 121 of the Indian Penal Code, or to conspire
(to deprive the government or any part thereof) to overawe by means of criminal
force, or the show of criminal force , the Government of India , or any local
government . under this section it was not necessary that any act or illegal
omission should take place in pursuance thereof, where as section 107
abetment includes the engaging with one or more persons in any conspiracy for
the doing of a thing, if an act or illegal omission take place in pursuance of that
conspiracy, and in order of doing that thing. In short except in respect of the
offences particularized in section 121A, conspiracy per se was not an offence
under the Indian Penalo Code until Criminal Law Amendment Act of 1913.
 Criminal Conspiracy

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-

1. That there must be an agreement between the persons who are alleged
to conspire; and
2. 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 ,

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,

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 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 rende 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 ,

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,

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
 The Law and its applicability

“The mind was apt to take pleasure in adapting circumstances to one another, and even
in straining them a little, if need be, to force them to form parts of one connected whole,
and the more ingenious the mind of the individuals, the more likely was it, considering
such matters, to overreach and mislead itself, to supply some little link that is wanting, to
take for granted some fact consistent with its previous theories and necessary to render
them complete” – A warning addressed by Baron Alderson to the jury in

Reg v. Hodge (1838) 2 Lew 227,

on danger that conjecture or suspicion may take the place of legal proof.

“The conspirators invariably deliberately, plan and act in secret over a period of time. It is
not necessary that each one of them must have actively participated in the commission
of the offence or was involved in it from start to finish. What is important is that they were
involved in the conspiracy or in other words, there is a combination by agreement, which
may be expression or implied or in part implied…”

Firozuddin Basheeruddin and others vs. State of Kerala, 2001 SCC (Crl) 1341.

“The offence of conspiracy to commit a crime is different offence from the crime that is
the object of the conspiracy because the conspiracy precedes the commission of the
crime and is complete before the crime is attempted or completed, equally the crime
attempted or completed does not require the element of conspiracy as one of its
ingredients they are, therefore quite separate offences.”

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

“Acts subsequent to the achieving of the object of conspiracy may tend to prove that a
particular accused was party to the conspiracy. Once the object of conspiracy has been
achieved, any subsequent act, which may be unlawful, would not make the accused a
part of the conspiracy.”

State v. Nalini, (1999) 5 SCC 253

“The essential ingredients of the offence of criminal conspiracy are:

(i) an agreement between two or more persons;

(ii) (ii) the agreement must relate to doing or causing to be done either (a)
an illegal act; or

(iii) (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.

Rajiv Kumar v. State of U.P., (2017) 8 SCC 791

The above mentioned judicial pronouncements crystallize the law on criminal conspiracy
as applicable in India.

Criminal conspiracy under the Indian Penal Code (IPC) is a substantive offence in itself
and punishable separately. There have been rare instances where persons have been
tried for commission of the substantive act of criminal conspiracy.

However, most commonly, the charge of criminal conspiracy is slapped on an accused

person along with the charge of a substantive offence under the IPC or any other law
which he may be accused of committing along with other co-conspirators.
Criminal conspiracy is hatched to commit an illegal act which is an offence punishable
under law. It is not essential that the accused person must do an overt act, and mere
agreement between two or more persons to commit an illegal act is sufficient to constitute
the offence of criminal conspiracy. It is also not necessary that the object of the
conspiracy should have been achieved for it to be considered as an offence. Even if the
conspiracy fails on account of abandonment or detection before commission of offence,
the very act of entering into an agreement by the co-conspirators is itself an offence and
punishable under the law.

However, it has to be kept in mind that the standard of proof for the act of criminal
conspiracy is the same as that of any other criminal offence i.e. beyond reasonable doubt.

In the case of

State (NCT of Delhi) v. Navjot Sandhu, AIR 2005 SC 3820, it was held that:

“A few bits here and a few bits there on which the prosecution relies cannot be held to be
adequate for connecting the accused in the offence of criminal conspiracy”.

Also, in the case of

State of Maharashtra & Ors. v. Som Nath Thapa &Ors., (1996) 4 SCC 659,

it was 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.”

In Subramaniam Swamy v. A Raja, (2012) 9 SCC 257, 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.”

But the use of the offence of criminal conspiracy in contemporary times by investigating
agencies and courts is not in accordance with the above stated well-settled principles of
law. This has resulted in dilution of the law relating to criminal conspiracy.

In many cases today, the concept of 'deemed presumption' is applied, which is otherwise
not available under the IPC. Undoubtedly, criminal conspiracies are hatched in secrecy
and can only be perceived by actions of the participants, however that should not in any
way dilute the standard of proof of “beyond reasonable doubt” that must be met by the
prosecution.

It has never been easy to get direct evidence for proving an offence under Section 120-
A, which defines criminal conspiracy. Considering this fact, Section 10 of the Indian
Evidence Act comes into play.

This section can be divided into two parts: firstly where there is reasonable ground to
believe that two or more persons have conspired to commit an offence or an actionable
wrong. Only when this condition precedent is satisfied, the second part of the section
comes into operation i.e. anything said, done or written by any one of such persons in
reference to the common intention after the time when such intention was first entertained
by any one of them is a relevant fact against each of the persons believed to be so
conspiring as well for the purpose of proving the existence of the conspiracy.

It is therefore necessary that a prima facie case of conspiracy has to be established for
application of Section 10. The second part of section permits the use of evidence which
otherwise could not be used against the accused person.

Sardar Sardul Singh Caveeshar v. State of Maharashtra [(1964) 2 SCR 378], is an

authority on this issue.
The English rule on this matter is, in general, well settled. It is a common law
rule.R.v. Blake illustrates the two aspects of it, i.e. what is admissible and what is
inadmissible. What was held to be admissible against the conspirator was the evidence
of entries made by his fellow conspirator contained in various documents actually used
for carrying out the fraud. But a document not created in the course of carrying out the
transaction, but made by one of the conspirators after the fraud was completed, was held
to be inadmissible against the other.

The basic concepts of criminal conspiracy as enumerated above are losing their essence,
resulting in misuse of this provision to the detriment of proper manifestation of law on this
subject. It has been observed that trial courts in India are not following these principles.
What is being done is that first they look for evidence which may be permitted under
Section 10 of the Evidence Act and then apply it to the facts of a case to presume
existence of criminal conspiracy.

It has to be ensured that all the stakeholders of the justice delivery mechanism do their
duty diligently, and in a manner which is in consonance with the concept of criminal law
as settled, followed and practiced.

The police and other investigating agencies, wanting to make someone an accused, in
spite of a case having no evidence, use this age-old formula of invocation of Section 120-
B IPC and bring all named in the charge sheet under its umbrella.

There have been numerous instances of such invocation of Section 120B IPC, like in the
Indira Gandhi murder case, where Balbir Singh was convicted by the trial court. His
conviction was upheld by High Court, but he was ultimately acquitted by the Supreme
Court. In the Parliament House Attack case, the trial court convicted all the accused, but
the High Court acquitted SAR Gillani and Afsan Guru. The Supreme Court ultimately
upheld the judgment of the High Court for these two persons. Similarly, in the Jain Hawala
case, the trial court framed charges against both VC Shukla and LK Advani along with
the Jain Brothers. However, the High Court discharged them, an order which was
confirmed by the Supreme Court by dismissing the appeal of the CBI.

Certain pressure groups in their zeal to prove their relevance, start exerting unnecessary
pressure on our very robust and independent justice delivery mechanism. This should be
shunned, otherwise there are chances of misuse or wrong implementation of the law of
criminal conspiracy to achieve misplaced moral victories.

The well-established rule of criminal justice “fouler the crime higher the proof” should
always be remembered and followed. This, in my belief, is still the hallmark of our superior
courts, but we have to remain cautious and not allow it to get diluted, especially by our
investigating agencies.
 Conclusion
CONCLUSION From the above discussion, it becomes clear that the prosecution must adduce
evidence to prove that:- 1. the accused agreed to do or caused to be done an act; 2. such an act
was illegal or was to be done by illegal means within the meaning of IPC; 3. Irrespective of
whether some overt act was done by one of the accused in pursuance of the agreement. 8
(1977) 4 SCC 540 Vijeta al. International Journal of Recent Research Aspects ISSN: 2349-7688,
Vol. 4, Issue 1, March 2017, pp. 148-151 © 2018 IJRAA All Rights Reserved page - 151- Under
Section 120A IPC offence of criminal conspiracy is committed when two or more persons agree
to do or cause to be done an illegal act or legal act by illegal means. When it is legal act by
illegal means overt act is necessary. Offence of criminal conspiracy is 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 had 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. As
already stated, in a criminal conspiracy, meeting of minds of two or more persons for doing an
illegal act is the sine qua non but proving this by direct proof is not possible. Hence, conspiracy
and its objective can be inferred from the surrounding circumstances and the conduct of the
accused. Moreover, it is also relevant to note that conspiracy being a continuing offence
continues to subsist till it is executed or rescinded or frustrated by the choice of necessity. It is
not necessary that all conspirators should agree to the common purpose at the same time.
They may join with other conspirators at any time before the consummation of the intended
objective, and all are equally responsible. What part each conspirator is to play may not be
known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.
A man may join a conspiracy by word or by deed. However, criminal responsibility for a
conspiracy requires more than a merely passive attitude towards an existing conspiracy. One
who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly
consents to the object of a conspiracy and goes along with other conspirators, actually standing
by while the others put the conspiracy into effect, is guilty though he intends to take no active
part in the crime.9 A person who is found to be the guilty of committing criminal conspiracy
shall be punished as per section 120B which prescribes punishment for the same to a person
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. And 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.
 Reference

BOOKS

 Indian Penak Code, By K.D Gaur

 The Indian Penal Code,Bare Act

WEB DOCUMENTS

 Wikipedia
 Bar And Bench
 Live Law