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Report No. 156

Chapter IV

Criminal Conspiracy

4.01. So long as a crime generates in the mind, it is not punishable. Thoughts even criminal in character often involuntary are not crimes. But when the thoughts take the 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 then even if nothing further is done, the agreement is designated as criminal conspiracy.

However, the proviso to section 120A makes it clear that except on agreement to commit an offence, a bare agreement of the aforementioned nature would not amount to an offence of criminal conspiracy unless some act besides the agreement is done by one or more parties to the agreement in pursuance thereof. It is the next overt step which may otherwise be of a preparatory nature such as buying arms to implement the criminal conspiracy that makes it punishable. The act of purchasing arms pursuant to an agreement to do an illegal act or an act which is not illegal by illegal means shall constitute an offence. Section 120A of the I.P.C. is as follows:-

"120A. Definition of criminal conspiracy.-When two or more persons 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."

4.02. The offence of criminal conspiracy was introduced in the Penal Code by the Criminal Law Amendment Act of 1913, which inserted a separate Chapter VA consisting of only two sections 120A and 120B. Despite the obvious and considerable overlapping between the provisions of these two sections and the provisions governing abetment of an offence by conspiracy contained in Chapter V, the legislature did not think it necessary to amend the earlier Chapter in any way.

Now whether or not some act or illegal omission takes place, he is guilty of a criminal conspiracy as soon as he becomes a party to the agreement to commit the offence and is punishable under sub-section (1) or sub-section (2) of section 120B, as the case may be. So far as conspiracies to commit serious offences are concerned, section 120B(1) puts a party to the conspiracy in exactly the same position as an abettor of the offence for the purpose of punishment.

Although it is theoretically possible to charge a person with conspiring to commit an offence even where no overt act in pursuance of the conspiracy has been done, it seldom, if ever, happens that two or more persons are prosecuted for a criminal conspiracy merely on the strength of evidence proving the agreement and nothing more.

4.03. However, that may be, there is no doubt that, after the enactment of Chapter VA, abetment by conspiracy is of little practical use, and is redundant as a criminal law concept. It may be noted, that in England there is no separate mention of conspiracy as a species of abetment. Therefore, in the 42nd report, the Law Commission had recommended the omission of the second paragraph of section 107 and all subsequent references in Chapter V of the Code of abetment by conspiracy.

One is struck by the wide sweep of the definition of criminal conspiracy in section 120A. It covers not only: (i) an agreement to commit an offence, but also (ii) an agreement to commit an illegal act, and (iii) an agreement to commit an act not illegal by illegal means. This distinction between achievements of any object by illegal means must involve the doing of something illegal, i.e. the committing of an illegal act.

The act which is an offence punishable under sub-section (1) or sub-section (2) of section 120B is being a party to a criminal conspiracy as defined in section 120A. In other words, now criminal conspiracy is not an offence ancillary to another offence, but an independent and substantive offence by itself.

4.04. In fact, the modern crime of conspiracy is almost entirely the result of the manner in which a conspiracy was treated by the Court in the doctrine of conspiracy which does not commend itself to jurists of civil law countries, despite universal recognition that an organised society must have legal weapons for combating organised criminality. Most other countries have devised what they consider more discriminating principles upon which to prosecute criminal gangs, secret associations, and subversive syndicates.

According to the definition of criminal conspiracy two or more persons must be parties to such an agreement and one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself.1 The offence of criminal conspiracy consists in the very agreement between two or more persons to commit a criminal offence irrespective of the further consideration whether or not those offences have actually been committed.

The very fact of the conspiracy constitutes the offence and it is immaterial whether anything has been done in pursuance of the unlawful agreement2

Thus, even if there is concurrence in the intention of the accused persons to do an illegal act it is not enough for the purpose of establishing a charge of conspiracy. In other words, where there is no meeting of minds there cannot be a conspiracy.3

1. Topandas v. State, (1955) 25 SCR 881.

2. Noor Mohammad v. State, 1970 SCC (Cri) 274.

3. Union of India v. Prafulla K. Sonal, 1979 SCC (Cri) 609.

4.05. It is not an ingredient of the offence under this section that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Where the accused are charged with having conspired to do three categories of illegal acts, the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed.

They can all be held guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable.1 It is not necessary that each member of the conspiracy must know all the details of the conspiracy.2 An offence under this section consists in the conspiracy without any reference to the subject-matter of the conspiracy and it is not necessary to establish the offence that there must have been definite purpose about which the parties are negotiating or which they have conspired.

1. Major EG Barsay v. State, AIR 1961 SC 1762

2. Dalmia Rk. v. Delhi Administration, (1962) II Cr LJ 805.

4.06. The Law Commission in its 42nd report was 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 the Criminal Procedure Code. Therefore, it was recommended that section 120A which defines criminal conspiracy should be revised as follows:-

"120A. When two ore 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."

4.07. It may be mentioned that the I.P.C. (Amendment) Bill, 1978 is silent and has not indicated any change about the offence of criminal conspiracy. But the then Law Commission in its 42nd report was of the view that criminal conspiracy for petty offences should not be covered under this chapter. In this context, it is submitted that a petty offence may lead to an offence of serious nature and it would not be easy to separate such crimes as per doctrine of Res-gestae.

Moreover, the crime of criminal conspiracy differs from other offences. In other offences, the intention to do a criminal act is not a crime in itself until something is done amounting to the doing or the attempting to do some act to carry out the intention. On the other hand conspiracy consists simply in the agreement or confederacy to do some act, no matter whether it is done or not. Further, section 120A does not just contain a principle of constructive liability, therefore, if an accused is found guilty of criminal conspiracy, may be for a petty offence, he should be convicted under this section.

4.08. Therefore, it is suggested not to disturb this section as the same is working well.

"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."

4.09. This section is the supplement of previous section and provides punishment for the crime committed thereof. It will be noticed that, for the 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 upwards, a party to the conspiracy is punished in the tame 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 provision is made in the Criminal Procedure Code, 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.

In other words, the punishment for a criminal conspiracy is more severe if the agreement is one to commit a grave offence; and less severe if agreement is to commit an act, which although illegal, is not an offence punishable with death, imprisonment for life or rigorous imprisonment for more than two years. This section applies where no offence has been actually committed by the members of the conspiracy who are parties during the period of conspiracy for which they are charged under this section.

4.10. 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 ore more persons to effect some "unlawful" purpose.

While the commission of a crime, even a non-indictable 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.

4.11. 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, the 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 as suggested by the Law Commission in its 42nd Report 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.

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 V will have to be found out and applied. It would obviously be preferable to make the section self-contained.

Therefore, in the 42nd report, the then Law Commission had recommended that section 120B should be revised as follows:

"120B. 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-half of the longest term provided for that offence, or with such fine as is provided for that offence, or with both."

4.12. It appears that the Law Commission made the recommendation for the revision of section 120B with the intention to make the section self-contained. But the recommendation will make the language ambiguous. Therefore, this recommendation could not find a place in the I.P.C. (Amendment) Bill, 1978 which is silent about this section.

This section, no doubt, is very important as it provides a punishment only for criminal conspiracy where no express provision is made in the Code for the punishment of such a conspiracy. Where, therefore, a criminal conspiracy amounts to an abetment under section 107, it is unnecessary to invoke the provisions of this section, because the Code has made specific provisions for the punishment of such a conspiracy. Now it is well settled that a criminal conspiracy is a separate offence, punishable separately from the main offence.1

1. Mahesh Chand, 1986 (1) Crimes 63. Also Hazari Baria, (1928) 30 Cr 14 473.

4.13. In the light of the above discussion, we are of the view that our recommendation in the matter is same for both the sections for the reasons mentioned earlier. In other words, there is no need to disturb Chapter VA as it works like residuary provision for the crime of conspiracy.



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