Report No. 42
5.31. Conspiracy on inchoate crime.-
The stage at which a person becomes liable to be punished for a criminal conspiracy is much earlier than the stage when an attempt to commit an offence becomes punishable under the Code. A mere agreement to commit an offence is enough. No physical act need take place. No consummation of the crime need be achieved or even attempted. In fact, even preparation, in the sense of devising and arranging means for the commission of the offence, is not required. In this sense, conspiracy is an incomplete or inchoate crime. And when one considers a conspiracy to commit an illegal act which is not a crime, it is not even classifiable as an inchoate crime. The question arises whether it is proper for the law to intervene and use criminal sanctions at such an early stage.
5.32. Classification under section 120B.-
It will be noticed that, for purposes of punishment, section 120B divides criminal conspiracies into two classes. Where the conspiracy is to commit a serious offence, (i.e. an offence punishable with imprisonment for two years or with a more severe punishment), a party to the conspiracy is punished in the same manner as if he had abetted the offence. In the second category there are included conspiracies to commit any other offence (including offences punishable only with fine) and conspiracies to commit illegal acts other than offences; and for these, sub-section (2) provides a uniform punishment, viz. imprisonment of either description upto six months or fine or both. Recognising that it would be dangerous to leave these petty conspiracies to be alleged before courts by any person so minded, provision is made in the Criminal Procedure Code, section 196A, that no court shall take cognizance of them except upon complaint made by order or under authority from the State Government or some officer empowered in this behalf.
5.33. Criminal conspiracy in English Law.-
We note that in England the law of conspiracy is not so widely drawn as in India. Conspiracy is a common law misdemeanour punishable with fine or imprisonment at the discretion of the court, except in the case of murder where by statute there is a maximum punishment of ten years. It consists in the agreement between two or more persons to effect some "unlawful" purpose. While the commission of a crime, even a non-indicatable crime, is naturally recognised as an unlawful purpose, there are no precise or clear rules in regard to non-criminal unlawful purposes of an indictable conspiracy. Conspiracies to defraud, to commit a tort involving malice, or to commit a public mischief, are, broadly speaking, indictable. A conspiracy to commit or induce breach of contract is probably not indictable at the present day.
5.34. Justice Wright's critical observations.-
In his Law of Criminal Conspiracies and Agreements published in 1873, Mr. Justice R.S. Wright1 distinguishes between (i) agreements for the commission of crimes, (ii) agreements for minor offences, and (iii) agreements for acts which would not be crimes or offences. He treats the first class of agreements as being merely auxiliary to the law which creates the crime. As to agreements for minor offences, he says:
"It is next to be considered in what manner agreements ought to be treated when they are for offences punishable only on summary prosecution and by minor penalties. There is great difficulty in discovering the principles which are here applicable; but the difficulty will be diminished by dismissing at the outset all offences which ought in a good penal system to be treated as crimes, but which happen to be treated only as minor offences in any particular penal system.
These being eliminated, the remaining offences consist in the production of results which, ex hypothesi, are not in themselves of grave enough consequence to be matters for indictment; and if so, it must in general be immaterial whether the results are produced by one person or by two or more persons. To permit two persons to be indicted for a conspiracy to make a slide in the street of a town, or to catch hedge-sparrows in April, would be to destroy that distinction between crimes and minor offences which in every country it is held important to preserve."
In dealing with the third class, i.e. agreements for acts which in the absence of agreement would not be crimes or offences, after referring to two peculiar classes he proceeds:
"Apart from cases falling within one or other of these two classes, there appear to be great theoretical objections to any general rule that agreement may make punishable that which ought not to be punished in the absence of agreement; for, if the act is one which can be done by a person acting alone, and when so done ought not to be punished, it is difficult to see at what point and on what ground criminality can be generally introduced by the fact that two or more persons concur in the act."
5.35. We consider the above criticism fully applicable to the agreements which are made criminal and punishable under sub-section (2) of section 125B, i.e. agreements to commit comparatively minor or petty offences and agreements to commit illegal acts which are not offences. Agreements to commit serious offences, however, stand on a different footing and may, with justification, be punished even when no other act is done by any of the parties in pursuance of the agreement, on the ground that "to unite, back of a criminal purpose, the strength, opportunities and resources of many is obviously more dangerous and more difficult to police than the efforts of a lone wrongdoer."1
1. Krulewitch v. U.S., (1949) 93 L Ed 790: 336 US 440 (Concurring judgment of Jackson J.).
5.36. U.S. Supreme Court's view.-
In the United States also, where the law of criminal conspiracy is the same as in England, it has come in for strong criticism from the viewpoint discussed above. Justice Jackson of the Supreme Court said:.-
"Conspiracy in federal law aggravates the degree of crime over that of unconcerted offending. The act of confederating to commit a misdemeanour, followed by even an innocent overt act in its execution, is a felony and punishable as such even if the misdemeanour is never consummated. The more radical proposition also is well established, that at common law and under some statutes a combination may be a criminal conspiracy even if it contemplates only acts which are not crimes at all when perpetrated by an individual or by many acting severally.
"Thus, the conspiracy doctrine will incriminate persons on the fringe of offending who would not be guilty of aiding and abetting or of becoming an accessory, for those charges only lie when an act which is a crime has actually been committed.
"Attribution of criminality to a confederation which contemplates no act that would be criminal if carried out by any one of the conspirators is a practice peculiar to Anglo-American law. 'There can be little doubt that this wide definition of the crime of conspiracy originates in the criminal equity administered in the star Chamber.' In fact, we are advised that 'the modern grime of conspiracy is almost entirely the result of the manner in which a conspiracy was treated by the Court of the Star Chamber.' The doctrine does not commend itself to jurists of civil law countries, despite universal recognition that an organised society must have legal weapons for combatting organised criminality. Most other countries have devised what they consider more discriminating principles upon which to prosecute criminal gangs, secret associations, and subversive syndicates."
1. Krulewithch v. U.S., (1949) 93 L Ed 790: 336 US 440.
5.37. Revised definition of criminal conspiracy.-
We are strongly of the view that there is neither theoretical jurisdiction nor practical need for punishing agreements to commit petty offences or non-criminal illegal acts. In practice, few private prosecutions of such petty conspiracies are sanctioned by the State government or its officers under section 196A of the Criminal Procedure Code. We, therefore, recommend that section 120A which defines criminal conspiracy should be revised as follows.-
"120A. Definition of criminal conspiracy.- When two or more persons agree to commit an offence punishable with death, imprisonment for life or imprisonment of either description for a term of two years or upwards or to cause such an offence to be committed, the agreement is designated a criminal conspiracy.
Explanation 1.- It is immaterial whether the commission of the offence is the ultimate object of such agreement or is merely incidental to that object.
Explanation 2.- To constitute a criminal conspiracy, it is not necessary that any act or illegal omission shall take place in pursuance of the agreement."
Though the present sub-section (1) of section 120B only refers to offences punishable with rigorous imprisonment for a term of two years or upwards, we think that offences which are punishable with imprisonment of either description for a term of two years or upwards should be brought within the definition of criminal conspiracies. The second explanation is on the same lines as the explanation to section 121A; though not strictly necessary, it seems desirable to have it in this section also.
5.38. Is person pretending to conspire guilty.-
We considered the question whether a person who pretends to join a criminal conspiracy, but does not in fact share the object of the other conspirators, is liable to be punished as 'being a party to the conspiracy' under section 120B. In an old English case,1 where a police spy pretended to aid the designs of conspirators for the purpose of betraying them, it was held that his evidence did not require corroboration as an accomplice since the complicity of such a person extend only to the actus reus, and not to the mens rea, and therefore he was not an accomplice.
In a recent English judgment,2 the point was made that if a person had never entertained any intention of going through with the project, then he cannot be convicted of a conspiracy to commit the crime. An agreement required an intention to carry out the unlawful purpose, and this element of mens rea would be missing so far as he was concerned. We think the same view should be taken in similar cases under section 120B.
1. Mallins, (1848) 3 Cox 526 (Maule J.); Archbold, (1966), para. 1294.
2. Rag. v. Thompson, (1966) 50 Cr App Rep 1 (Nottinghamshire Assizes-Lawton J.), noted in (1966), Current Law, item 2182.
5.39. Section 120B revised.-
Under sub-section (1) of section 120B a party to a criminal conspiracy is liable to be punished in the same manner as if he had abetted the intended offence. This means that, in every case of conspiracy, the appropriate provision contained in Chapter 5 will have to be hunted out and applied. It would obviously be preferable to make the section self-contained. We recommend that section 120B should be revised as follows.-
"120B. Punishment of criminal conspiracy.- Whoever is a party to a criminal conspiracy shall, where no express provision is made for the punishment of such a conspiracy.-
(a) if the offence which it is the object of the conspiracy to commit or cause to be committed is committed in pursuance of the conspiracy, be punished with the punishment provided for that offence; and
(b) if the offence is not committed in pursuance of the conspiracy, be punished with imprisonment of any description provided for that offence for a term which may extend to one-half1 of the longest term provided for that offence, or with such fine as is provided for that offence, or with both."
1. See para. 5.21, above and section 116,as proposed to be amended.
5.40. Consequential amendment in the Cr. P.C.-
When criminal conspiracies are limited to agreements to commit serious offences as recommended above, there will be no need for section 196A in the Code of Criminal Procedure, 1898. This section will require to be repealed.