Report No. 69
VIII. Present Position
7.148. Need for amendment.-
It was suggested to us that the section, as now worded, is not defensible on principle,1 and should be narrowed down.
1. See "Injustice of present wide provision", supra.
7.149. Rational justification furnished by common purpose.-
Although the section is expressed in terms of conspiracy, the real principle and the rational justification, as we have already indicated above, is the common purpose which leads to their being engaged in a common enterprise. In England, for example, where A and B, employed in a Customs House, are charged with conspiring to pass through Custom goods without paying duty, false entries made by A are admissible against B also, since these entries are made in furtherance of the purpose of the conspiracy1.
But, an entry made by A on the counterfoil of his own cheque book, saying how he had shared the proceeds of the, transaction with B, is not admissible against B, not being in furtherance of the common purpose. Similarly, if A and B are charged with conspiracy, a letter written by A to a third person (not a member of the conspiracy) describing the proceedings already taken and enclosing the songs composed by A and sung in the proceedings, is no admissible against B, not being in furtherance of the conspiracy2.
1. R. v. Blake, (1844) 6 QB 126.
2. R. v. Hardy, (1794) 24 Howard ST 200 (451, 453).
7.150. Again, in a trial for illegal abortion, a diary kept by B, incriminating A and a letter intended for A but not sent to him, both written after the abortion would be rejected in the absence of conspiracy.1 In this case, A was charged with causing B's death by an illegal operation, and statements made by B, the woman to a doctor during her illness that A had operated upon her and that her illness was caused thereby, were held to be inadmissible. The rejection of the first mentioned evidence was on the ground that there was no conspiracy.2
1. R. v. Closter, (1888) 16 Cox 471.
2. Q. v. Blake, (1844) 60 B (126). The case is discussed in R. v. Thomson, (1912) 3 King's Bench 19.
1. (a) Hugg, (1730) 2 Stra 883.
(b) Vane v. Vjanauapoulos, 1965 AC 486 (HL).
7.152. Husband and wife.-
It should also be noted that in England, the husband and wife cannot be guilty of conspiracy. This is not so in India. In Queen Empress v. Butch, 1894 ILR 17 Mad 401, it has been held that there is no presumption that a wife and husband constitute one person in India for the purpose of the criminal law1-2. Thus, the Indian law in section 10 is wider than the English law in other respects also.
1. See also Tirurangada Madalai v. Triprasundariammal, ILR 49 Mad 738: AIR 1926 Mad 906.
2. Abdul Khader v. Taib Begum, AIR 1957 Mad 339 (340), para. 5.
152. Husband and wife.- 7.153. Possible reasons for present wording in section 10.-
The reason for the wording of the section is a matter of conjecture. A mere statement made by one conspirator to a third party or any act, not done in pursuance of the conspiracy, is not evidence for or against another conspirator.
Patterson, J. described it in Q.E. v. Blake, (1844) 6 QB 126 as a statement "made after the conspiracy was effected".
Williams J. said that it merely related "to a conspiracy at that time completed". Coleridge J. said that it "did not relate to the furtherance of the common object". The words used in section 10, Evidence Act, are-
"in reference to their common intention".
These words were perhaps chosen as having the same significance as the word "related" used by Williams and Coleridge IL if so, the choice was not happy. In Mirza Akbar1 the Privy Council observed:
"Where the evidence is admissible, it is in their Lordships' judgment on the principle that the thing done, written or spoken, was something done in carrying out the conspiracy and was receivable as a step in the proof of the conspiracy. The words written or spoken may be a declaration accompanying an act and indicating the quality of the act as being an act in the course of the conspiracy; or the words written or spoken may in themselves be acts done in the course of the conspiracy.".
1. See Mirza Akbar, AIR 1940 PC.
7.154 to 7.156. Agency in relation to corporations.-
A reference has been made to the aspect of agency. It may be noted, in this connection, that the attribution of criminality to a corporation originated in the principle of agency. In Mackay v. Commercial Bank of New Burnswik, 1874 LR 5 PC 394, the opinion of the Privy Council (given by Sir Montague Smith) includes this passage, quoted from the judgment of Lord Cranworth, L.C., in Ranger v. Great Western Rly. Co.-
"Strictly speaking, the corporation cannot itself be guilty of fraud. But where a corporation is formed for the purpose of carrying on a trading or other speculation for profit, such as forming a railway, these objects can only be accomplished by the agency of individuals: and there can be no doubt that if the agents employed conduct themselves fraudulently, so that if they had been acting for private employers the persons for whom they were acting would have been affected by their fraud, the same principles must prevail where the principal under whom the agent acts is a corporation.".
7.157. Agency in section 10.-
This aspect of agency, as relevant to section 10, has been noticed in Indian cases. In Indra Chandra's case1 Courtney Terrell, C.J., commenting on section 10, said:
"Now, the object of this section is merely to ensure that one person shall not be made responsible for the acts or deeds of another until some bond in the nature of agency2 has been established between them and the act, words, or writing of another which it is proposed to attribute vicariously to the person charged. The Act, words or writing must be in furtherance of the common design and after such design was entertained.".
1. Indra Chandra v. Emperor, AIR 1929 Pat 145 (146) (F13).
2. Emphasis supplied.