INDIAN Laws and CRIMINAL CONSPIRACY

Submitted to: Mr.Rasheed CA Submitted by: Arsalan Ahmad

rd th
(3 year, 5 semester)

Faculty of Law

Jamia Milia Islamia, New Delhi.

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 Acknowledgement
It gives me immense pleasure and gratitude to thank my Criminology teacher, Mr.
Rasheed CA who gave me the golden opportunity to do this wonderful project which
helped me in doing a lot of research and I came to know about so many new things. I
am really thankful to him.

Secondly, I would also like to thank my parents and friends who helped me a lot
in finalizing this project within the limited time frame.

Yours sincerely,

Arsalan Ahmad

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 CONTENTS

SERIAL PAGE
NUMBER TOPIC NUMBER
1 INTRODUCTION 4
2 THE IPC 4
3 HISTORY 5
4 ESSENSTIALS OF SECTION 120A 6
5 SECTION 120A EXPLAINED 6
6 PROVING A CONSPIRACY 9
7 THE RAJIV GANDHI ASSASSINATION 11
CASE
8 PUNISHMENT OF CRIMINAL 13
CONSPIRACY
9 NATURE AND SCOPE OF SECTION 14
120B
10 FRAMING A CHARGE AGAINST A 15
SINGLE PATRY
11 FRAMING A CHARGE 16
12 ABETMENT AND CRIMINAL 17
CONSPIRACY
13 BIBLIOGRAPHY 19

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 INTRODUCTION
“If the mere intention of one person to commit a crime is not criminal, why should the
agreement of two people to do it make it criminal? The only possible reply is that the law is
fearful of numbers, and that act of agreeing to offend is regarded as such a decisive step as to
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justify its own criminal sanction.”
The principles governing the law of conspiracy have faced many a challenge and at the same
time evolved at a rapid rate over the course of time. Sensational cases like the cases involving the
assassination of Rajiv Gandhi and Indira Gandhi apart from regular cases involving deliberate
planning and execution have all involved charges of conspiracy as the core allegation of the
prosecution case.

The scope and nature of conspiracy, and the degree of proof required to establish the same has
been constantly evolving in recent years.

THE INDIAN PENAL CODE

Section 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’s immaterial whether the illegal act is the ultimate object of such agreement, or
is merely incidental to that object.

Section 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 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.

1
Glanvile Williams, textbook of criminal law, second edition, London, 1983.

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 HISTORY OF THE LAW OF CONSPIRACY IN INDIA
Originally, the IPC contained only two provisions by which conspiracy was made punishable:

1) Section 107 made conspiracy by way of abetment punishable.

An act or an illegal omission had to take place in pursuance of conspiracy before the
accused was liable for punishment.

2) Specific provisions involving offences which included conspiracies to commit them.

Example- in the definition of thug(S/310), by way of belonging to a gang of dacoits(S/400) or

thieves(S/401).

The Mulachy dictum

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In Mulachy v. R the House of Lords introduced the principle in common law that a mere
agreement of two or more persons to do an unlawful act or a lawful act by unlawful means was
sufficient to attract liability under conspiracy, even if no specific overt act had been committed.

As a result, Section 121A was introduced in the IPC in 1870 by an amendment making it an
offence to commit any of the offences punishable under section 121(waging war or attempting to
wage war against Government of India). Under this provision, it was not necessary that any act
or omission had actually taken place in pursuance of the conspiracy.

Thus, except in respect of offences specially mentioned in Section 121A, IPC, conspiracy per
se was not made an offence under the IPC.

LATER TREND AND THE PRESENT SITUATION

The Indian Criminal Law Amendment Act of 1913(8 of 1913) added chapter V-A (ss 120A and
120B) to the IPC to assimilate the Law of conspiracy in India with that of to England and to give
extended effect to the law of conspiracy in India.

Thus, the IPC (inclusive of Sections 120A and 120B) encompasses the law of conspiracy
to cover the following:

1) Conspiracy as a substantive offence (chapter V-A:ss 120A and 120B);

2) Conspiracy as form of abetment (chapter V: section 107 secondly);
3) Conspiracy to wage, attempt to or abet war against the Government of India (chapter
VI: section 121A), and
4) Involvement in specific offences (chapter XVI: ss 310 and 311; chapter XVII: ss
400, 401 and 402).

2 (1868) LR 3 HL 306. This dictum was followed in R v. Brailsford[1905] 2 KB 730

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 ESSENSTIALS OF SECTION 120A
1) There should be two or more persons.
2) There should be an agreement between them (themselves).
3) The agreement must be to do or cause to be done:
a) An illegal act; or
b) A legal act by illegal means.

In case of a conspiracy to commit an offence, the mere agreement is sufficient to impose liability
without the requirement that some overt act in furtherance of the conspiracy should have been
committed.

But in case of a conspiracy to do a legal act by illegal means, there ought to be some overt
act which should have been committed by one or more parties to the agreement, apart from
the agreement itself.
3 4
In Mohd. Khalid’s case and in Devender Pal Singh’s case the Supreme Court has
summarized the broad essentials of criminal conspiracy as follows:

1) An object to be accomplished;
2) A plan which is embodying the means to accomplish that object;
3) An agreement between two or more accused persons whereby they become definitely
committed to co-operate for the accomplishment of the object by the means embodied
in the agreement, or by any effectual means, in case of a non-offence act.

WHAT DOES SECTION 120A TALK ABOUT?? SCOPE AND NATURE

1) Conspiracy is a substantive offence. Criminal conspiracy exists in the very agreement

between two or more persons to commit a criminal offense, irrespective of further
consideration whether or not the offense has actually been committed or to break
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the law.
2) ‘Agreement’ is sine qua non for constituting the offense of criminal conspiracy. It consists of
the scheme between two or more persons which may be express or implied or partly express
and partly implied. It involves unity of the purpose rather than physical unity. Neither
entertaining an evil wish nor mere coincidence of blemish intentions among persons make
them parties to an agreement. A mere thought of criminal character or discussion to commit a
crime does not per se constitute agreement. It is complete when

3 Mohd Khalid v. State of West Bengal, (2002) 7 SCC 334

4Devender Pal singh v. State (NCT of Delhi), (2002) 5 SCC 234
5Bimbadhar Pradhan v. State of Orissa, AIR 1956 SC 469

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 the combination is framed to commit an offense. It is immaterial whether anything
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has been done in pursuance of the unlawful agreement.
3) To constitute a conspiracy, meeting of minds of two or more persons for doing of an
illegal act or act by illegal means is the first condition and it is not necessary that all the
conspirators must know each and every detail of the conspiracy. Neither it is necessary
that every one of the conspirators takes active part in the commission of the conspiratorial
acts. In reaching the stage of meeting of minds, two or more persons share information
about doing the act by illegal means. Those who form the requisite intention after sharing
the information among themselves would be parties to the agreement and would be
conspirators but those who drop out cannot be called as collaborators on mere bases of
knowledge unless the commit acts or omissions from which a guilty common intention
can be inferred.

It is not necessary that all the conspirators should participate from the inception to the
end of the conspiracy; some may join the conspiracy after the fixation of the intention by
any one of them and some others may quit from the conspiracy. All of them can’t be
treated as conspirators.

Where in pursuance of the agreement the conspirators commit offenses individually or

adopt illegal means to do a legal act which has a relation to the object of conspiracy, all
of them will be liable for such offenses even if some of them did not actively
participate in the commission of those offenses.

The conspirators may appear and disappear from stage to stage in course of the
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conspiracy.
4) If there are more than two persons in a conspiracy, and if it is shown that the object of the
conspiracy has been achieved, then even if some of the other accuses had been acquitted, the
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remaining accused (even if it is one) could be convicted under this section.
5) There is no condition imposed in this provision that all the parties should agree to do a
single illegal act. It is sufficient if the agreement to commit the illegal acts is established.

In such a case all of them will be held liable for the offense of conspiracy, although
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for individual offenses, all of them may not be held liable.
6) The essence of the agreement to break the law is the agreement to do an illegal act.
Therefore, to establish the charge of conspiracy, knowledge about the involvement
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in either an illegal act or a legal act by illegal means is necessary.
7) When an offense is committed by different persons acting in the same manner but
independently, it cannot be said that there was necessarily a conspiracy. Similarity of

6 Chaman Lal v. State of Punjab, AIR 2009 SC 2972

7Rahuvir Singh v. State of Bihar, AIR 1987 SC 149
8Mohd Arif v. State of NCT of Delhi, (2011) 13 SCC 621
9BG Barsay v. State of Bombay, AIR 1961 SC 1762
10 State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744

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 methods followed by them does not establish a planned operation with common
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intention or consensus, hence, no conspiracy can said to be established.
8) It is not necessary for all the conspirators to know each other. They may adopt many
devices to achieve the common goal of conspiracy and there may be division of
performances in the change of actions with one object to achieve the real end of which
every collaborator must be aware of and in which each one of them must be interested.
The only relevant factor is that all means adopted and illegal acts done must be and
purported to be in furtherance of the object of the conspiracy, even though there may be
sometimes misfire by some of the conspirators.

Even if some steps are resorted to by some of the conspirators without the knowledge of
the others, it will not affect the culpability of those others when they are associated with
the objects of conspiracy.

9) When he ultimate offense consists of a chain of actions, it’s not necessary for the
prosecution to establish, to bring home the charge of conspiracy, that each of the
conspirators had the knowledge of what the collaborator has done or would do, so long
as it is known that the collaborator would put the goods or service to an unlawful use.

It is not necessary that each conspirator to either know all the details of the scheme
or participate at every stage of the conspired act.

10) Every conspirator is liable for all the acts of the co-conspirators, if they are towards
attaining the goals of the conspiracy even if some of them had not actively participated in
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commission of the offenses.
11) Where the agreement between certain persons is a conspiracy to do or continue to do
something which is illegal, it is immaterial whether the agreement to do any of the acts in
furtherance of the commission of the offense does not strictly amount to an offence.
Even if the acts done by a conspirator in furtherance of the criminal conspiracy don’t
strictly amount to an offense he is liable to be convicted under this provision. It has to be
ascertained as to what in fact the conspirators intended to do or the object they wanted to
achieve.
12) Conspiracy is a continuing offense and it continues to subsist and committed, whenever
one of the conspirators does an act or a series of acts. And during its subsistence, whenever
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any one of the conspirators does an act or series of acts, he would be guilty.
13) A criminal conspiracy requires that there must be a common intention of all work in
furtherance of the common design. A single conspiracy is distinct from separate acts
committed by different people without common purpose.

In Mohd Hussain Umar Kochra v. KS Dalip Singhji, the Supreme Court observed the
nature of a criminal conspiracy in the following manner:

11 Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326

12 State of Himachal Pradesh v. Kishanlal Pradhan, AIR 1987 SC 773
13 K Hashim v. State of Tamil Nadu,(2005) 1 SCC 237

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To constitute an offence of conspiracy, there needs to be a common intention of all to work to
work in furtherance of the common design. Each conspirator plays his distinct part in one
integrated effort to achieve this common purpose. Each one is aware that he has a part to play in
a general conspiracy though he may not know all its secrets or the means by which the common
purpose is to be achieved. This evil scheme may be promoted by a few, some may drop out and
some may join at later stage, but the act o conspiracy continues till it is broken up. This
conspiracy may develop in various successive stages. There may be a general plan to achieve
the common objective by such means as may from time to time be found efficient. New
techniques may be invented or newer means may be adopted for the accomplishment of the
common objective. A general conspiracy must be distinguished from a number of separate
conspiracies having a similar and general purpose. Where different groups of persons cooperate
towards their separate ends without any privity with each other, each combination constitutes a
separate conspiracy. The common intention of the conspirators is then to work for the
furtherance of the common design of his group only.

HOW CAN A CONSPIRACY BE PROVED??

1) A conspiracy is always hatched in secrecy. Direct evidence to prove conspiracy is
rarely available. The offence can only be proved largely from inferences drawn
from acts or illegal omissions committed by conspirators in a pursuance of a
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common design.
Offence of conspiracy can be proved by either direct or circumstantial evidence.
It’s not always possible to give affirmative evidence about the date of formation if
the criminal conspiracy, about the object, which the objects set before themselves
as the object of conspiracy, and about the manner in which the object of
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conspiracy id to be carried out, all this necessarily a matter of inference.

Therefore the circumstances proved before, during and after the occurrence
become relevant in determining complicity of the accused. However, the
circumstances in a case, when taken together on their face value, should indicate
the meeting of the minds between the conspirators for the intended object of
committing an illegal act or an act which is not illegal, by illegal means. Such an
inference must be premised on sound facts that eloquently exhibit the intended
common design and its execution. Each and every incriminating circumstance
must be clearly established by reliable evidence and the circumstances proved
must form a chain of events from which the only irresistible conclusion about the
guilt of the accused can be safely drawn, and no other hypothesis against the
guilt is possible. A mere suspicion, in the absence of direct or indirect evidence
establishing prior meeting of mind, cannot be a ground for conviction for offense
of criminal conspiracy.

14 State( NCT of Delhi) v. Jaspal Singh, (2003) 10 SCC 586

15 Nazir Khan v. State of Delhi, (2003) 8 SCC 461

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 2) Conspiracy is generally a matter of inference to be deduced from special acts or
illegal omissions of the accused done in pursuance of the common intention of the
conspirators and the apparent criminal purpose an among them. There must be
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some evidence on record on record which establishes a common design.
3) The prosecution will rely on evidence of acts of various parties to infer that they
were done in reference to their common intention. Circumstantial evidence is
essential that when an allegation of conspiracy is made, the court must enquire
whether the persons involved therein are independently pursuing the unlawful
object. Essential that the offence of conspiracy requires some kind of physical
manifestation of agreement. The express agreement, however need not to be
proved. Nor actual meeting of the two persons is necessary. Nor it is necessary
to prove the actual words of communication. The evidence as to transmission of
thoughts or sharing the unlawful design may be sufficient. The innocuous,
innocent or inadvertent events and incidents should not enter the judicial verdict.

While considering the nature of proof requisite to prove conspiracy, it is not

necessary for the prosecution to prove that the perpetrators expressly agreed to do
or causes to be done an illegal act; the agreement could be proved by necessary
implication.

4) Circumstantial evidence; as it is the only type of evidence that is normally

available to prove conspiracy. Therefore, an absence of direct evidence to prove
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the presence of an accused in a crucial meeting cannot be a major infirmity.

5) Section 10 of the Indian Evidence Act 1872, covering the principle of agency,
lays down the conditions for assessing the evidence of co-conspirators sufficient
to prove conspiracy as against other conspirator. For this, however, three
ingredients need to be covered:

(1) There should be prima facie evidence regarding the involvement of two or
more people in forming an agreement;
(2) If the above condition is fulfilled, then anything said, done or written by any
one of them in reference to the common intention will be evidence against the
others; and
(3) Anything said, done or written by the conspirator after the common intention
was formed by any of them would be admissible.

16 Saju v. State of Kerala, (2001) Cr Lj 102 SC

17 State of Madhya Pradesh v. SB Johari, (2000) 2 SCC 57

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 THE RAJIV GANDHI ASSASSINATION CASE
When we discuss about the concept of criminal conspiracy in the IPC, various judicial decisions
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come into the purview of the said provisions of this topic. State of Tamil Nadu v. Nalini is one
such case which can be called a landmark and a guiding decision which laid down many a
crucial factor which discuss the various elements associated with the concept of criminal
conspiracy. The Supreme Court conducted an extensive review of the thitherto judicial
pronouncements on the law of conspiracy and laid down certain guiding principles governing
the law of conspiracy as enshrined under the IPC.

1) Section 120A, IPC, talks about the commission of the offense of criminal conspiracy
two or more persons agree to do or cause to be done an illegal act or a legal act by illegal
means. An overt act is considered to be an integral part of criminal conspiracy when a
legal act is done by employing illegal means.
2) Criminal conspiracy is an exception to the general law where intent alone does not
constitute a crime. It is the intention to commit crime and joining hands with persons
having same intention. Not only is the intention, an agreement also necessary to carry
out the object of the intention, which is an offense. Only entertaining a wish, howsoever
evil, is not sufficient to convict a person for criminal conspiracy.
3) Once the object of conspiracy is achieved, any subsequent act, (like giving shelter to an
absconding conspirator), which may be unlawful, doesn’t make an accused a part of the
conspiracy.

However, acts subsequent to the achieving of objects of conspiracy may tend to prove
that a particular accused was the party to the conspiracy.

4) Conspiracy is hatched in secrecy. Direct evidence is rarely procured. Usually, both the
existence of the conspiracy and its objects are to be inferred from the circumstances
and the conduct of the accused.

5) Conspirators may be enrolled in a chain also. Persons may be members of a single

conspiracy even though each is ignorant of the identities of many others who may
have diverse roles to play. The offense of criminal conspiracy doesn’t require all the
conspirators to agree to play the same or an active role.
6) Thus, there need to be two conspirators or there may more than that. To prove the
charge of conspiracy it’s not necessary that the intended crime was committed or not. If
committed, it may further help the prosecution to prove the charge of conspiracy.
7) All the conspirators need not agree to the common objective at the same time. They may
join the other conspirators at any time before the consummation of the intended purpose,
and all are equally responsible.
8) Prosecution has to produce the evidence not only to show that each of the accused has the
knowledge of the object of conspiracy, but also the agreement. It is the duty of the court
to guard itself against the danger of unfairness to the accused.

18 AIR 1999 SC 2640

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9) Offense of criminal conspiracy is complete even though there is no agreement as to the
means by which the purpose is to be accomplished. An unlawful agreement is the crux of
the offense of a criminal conspiracy. The unlawful agreement may be inherent or inferred
from the circumstances, i.e., acts and conduct of the conspirators. The agreement need
not be entered into by all the parties to it at the same time but may be reached by
successive actions evidencing their joining of the conspiracy.
10) A criminal conspiracy is a partnership in a crime. Each conspiracy consists of a joint and
mutual agency for implementation of a common design. Everything done by any of the
conspirators in the furtherance of the common design is deemed to have been done by
each of them. A conspirator is not responsible, however, for acts done by a co-conspirator
after termination of the conspiracy.
11) A man may join a conspiracy by word or deed. But, criminal responsibility for a
conspiracy requires more than a mere passive attitude towards an existing conspiracy.
A person who commits an overt act with knowledge of the conspiracy is guilty. One
who tactically consents to the objects of the conspiracy and goes along with other
conspirators, actually standing by while others put the conspiracy into effect, is guilty
though he intends to take no active part in the crime.
12) A conspiracy remains unbroken even when a new member joins a conspiracy and
different individuals perform different acts. It’s a continuous offense. It continues
from the time of agreement to the time of its termination.
13) Absence of proofs can’t make members providing food or shelter to the accused
as members of the conspiracy even though they may have the knowledge of such
a conspiracy.
14) In a joint trial of accused, the court is required to take care that admissible evidence
against each accused doesn’t cause prejudice to another. Though, tracing of precise
contribution of each member of the alleged conspiracy becomes difficult, the court
is required to look for convincing evidence against each one of the accused.

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 PUNISHMENT OF CRIMINAL CONSPIRACY

 Punishment for the offense of criminal conspiracy is given under section 120B of the
IPC. Section 120B divides criminal conspiracies into two classes. A party to a conspiracy
to commit a serious offense, (i.e.an offense punishable with imprisonment for two years
or with a more severe punishment), is, in the absence of express provision in the IPC,
punished in the same manner, as if he had abetted the offense. Conspiracies to commit
any other offense (including offenses punishable only with fine) and conspiracies to
commit illegal acts other than offenses are subjected to a uniform punishment, namely
imprisonment for a term up to six months with or without fine or both.
 Section 120B is required to be read with Section 196, CrPC. This section mandates
a court not to, without the prior sanction of the Central Government or of the State
Government, take cognizance of a criminal conspiracy to:
1) Commit an offence against the State( punishable under chapter VI)
2) Promote communal disharmony(Section 153-A)
3) Insult a religion(Section 295-A)
4) Cause public mischief[section 505(1)]
 A court, without prior approval of the central government or the state government or the
district magistrate, can’t take cognizance of a criminal conspiracy to:
1) Commit an act prejudicial to national integration(Section 153-B)
2) Cause or promote enmity, hatred or ill will between different racial or religious groups
[Section 502(2) and (3)].
 A court has to seek consent of the state government or of the district magistrate to take
cognizance of a conspiracy to commit an offence punishable with imprisonment of a term
less than two years.
 No consent of the concerned state government or the district magistrate is however,
required when the criminal conspiracy relates to any of the offences covered under
Section 195, CrPC.
 The central government or the state government or the district magistrate, as the case
may be, is, by virtue of Section 196(3) of the CrPC, required to carry out, through the
police, a preliminary investigation before according sanction or giving consent. However,
for initiating criminal proceedings against parties to a conspiracy made abroad or on the
high sea, ship or aircraft sanction only of the central government is required. A
conspiracy hatched in India to commit an unlawful act outside India does not require
sanction of the central government.

In State of Karnataka v. Pastor P Raju [(2006) 6 SCC 728], it was observed that Section 196,
CrPC does not create a bar against registering a case or carrying investigation by the police
agency or submitting a report a report of investigation to a magistrate( in compliance with
Section 173, CrPC). None of the steps become violative of Section 196, CrPC, and no
illegality of any kind would be committed. Section 196 merely bars a court from taking
cognizance of it without the requisite sanction.

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 NATURE AND SCOPE OF SECTION 120B
To make a person a liable for the offence of conspiracy, it is not necessary that the offender
ought to have been present from the very beginning to the very end of the act. A conspirator may
come and leave the conspiracy at any time during the pendency of the conspiracy. Any and every
such conspirator will be liable for the subsequent acts of other conspirators.

Mere proof of agreement between the accused and the commission of the crime is enough to
bring conviction under section 120B and the proof of an overt act by the accused is not necessary
when the conspiracy is alleged with regard to committing a serious crime as contemplate under
section 120B.
19
In Nand Kumar v. State of Bihar , the accused was an LIC agent who was accused of
conspiring with the co-accused Development officer to get LIC policies issued on the basis of
fake and forged documents and receiving premium commission and bonus in respect of those
policies. However, when the forging of the documents was done by the co-accused there was no
acceptable evidence that the co-accused did it with the knowledge and consent of the accused,
then he could not be convicted under section 120B, IPC. The Court set aside the order of
conviction.
20
But in Anicete Lobo v. State of Goa Daman and Diu , the court convicted the accused under
section 120B. In this case the facts were more or less similar to that of the above case; except
for the fact the division of work and acts of offence committed by individuals proved to be
detrimental while deciding the liability of the accused.

19 AIR 1992 SC 1939

20 AIR 1994 SC 1613

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 CAN A CHARGE OF CONSPIRACY BE FRAMED AGAINST A SINGLE PARTY??

If after acquittal, only one accused remains, then in the absence of a charge that the offence was
committed by the named accused persons along with other unnamed accused persons, the effect of
acquittal of all but one accused persons will result in the failure of the prosecution case itself.

One single person can never be held guilty of conspiracy because one single individual
can’t conspire with himself.
21
In BH Narasimha v. Government of Andhra Pradesh , since the other seven co-accused were
acquitted and there was no allegation that there were other unnamed persons also involved in
the conspiracy, the accused had to be acquitted.
22
In Central Bureau of Investigation v. VC Shukla (hawala case), the allegation was that the
Jain brothers had bribed famous politicians from different parties to obtain favorable contracts
with the bribe amounts being recorded in code in diaries. The discharge petitions filed by two
of the accused politicians, VC Shukla and LK Advani, were dismissed by the special court as
also by the High court. The Supreme Court, on further appeal, pursued the prima facie material
placed by the prosecution and concluded that the evidence was not such that it proved that the
politicians were parties to the conspiracy. This left the conspiracy dangling with the Jains as the
only other party (especially as the prosecution had not framed charge that a conspiracy existed
amongst and between the Jain brothers themselves). Since a conspiracy could not exist with just
one party, the charge against the politicians under section 120B, IPC, was not held sustainable.
23
The minority view of Anand and Agrawal JJ in P V Narasimha Rao v. State (CBI/SPE) holds
a vast relevance to the provisions of the concepts of criminal conspiracy under the IPC. The
allegation was that PV Narasimha Rao and other MPs had paid a huge amount of money as
bribe amounts to the opposition parties’ MPs to support the then ruling party Government in a
no-confidence motion in the Lok Sabha. It was observed that:

“The offence of bribery is complete with the acceptance of money or on the agreement to accept
the money being concluded and is not dependent on the performance of the illegal promise by
the receiver. Similarly, the offence of criminal conspiracy would be committed if two or more
persons enter into an agreement to commit an offence of bribery. The criminal liability incurred
by a member of parliament who has accepted bribe for speaking or giving his vote in parliament
in a particular manner thus arises independently of the making of the speech or giving of the vote
by the member and the said liability cannot, therefore, be regarded as a liability, in respect of
anything said or vote given in parliament. Therefore, the protection granted under section 105(2)
can’t be invoked by the parties in this case.”

21 AIR 1996 SC 64
22 AIR 1998 SC 1406
23 AIR 1998 SC 2120

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However, acquittal of a sole co-conspirator on some technical grounds, rather than on facts, or
defect in framing charges against co-accused and thereby leaving behind a single person accused
of criminal conspiracy, does not warrant acquittal of the sole.

HOW IS A CHARGE FRAMED??

When a conspiracy is alleged, and the offenders alleged to have committed a number of distinct
offences in pursuance of the conspiracy, then it is open for the prosecution for the separately
charge a person with both the distinct offence of conspiracy under section 120B, as also the
distinct offences alleged to have been committed by them. If the alleged offences are said to
have been emanated from the conspiracy, the appropriate form of charge would be a specific
charge in respect of each of those offences along with the charge of conspiracy.
24
In Swaminarathnam v. State of Madras , the accused were tried for the offence of conspiracy to
cheat the public and for specific offences of cheating in pursuance of that conspiracy. The period
of conspiracy was alleged to relate to the years 1945-48 when the accused persons were alleged
to have persuaded the public to buy fake currency notes at half the value of the genuine notes,
decamp with the money collected and subsequently posed as police officers, raided the premises
of those who purchased the fake notes and seized the only evidence to their nefarious deeds,
viz., the fake notes and got away. In the Supreme Court, the accused appellants challenged the
charge of single conspiracy arguing that there were several conspiracies and consequently it was
illegal of framing a single charge of conspiracy. The Supreme Court held that where the charge
disclosed that there was a single conspiracy although spread over several years, there was only
one object of the conspiracy, which was to cheat the public. The fact that over the years several
others joined the conspiracy or that several instances of conspiracy took place in pursuance of
the conspiracy doesn’t change the conspiracy or split up a single conspiracy into several
conspiracies. Hence, there was no misjoinder of charges and a single trial for trying the instances
of cheating as in pursuance of one conspiracy and parts of the same transaction, was not
improper.
25
In State of Andhra Pradesh v. Kanimbla Subbaiah , the question which came into consideration
was, whether an accused is to be charged for an offense of abetment or for conspiracy, especially
where the offense is committed in pursuance of the conspiracy. The court held:

Conspiracy to commit an offense is itself an offense and a person can be separately charged
with respect to such conspiracy. There is no analogy between Section 120B and Section 109,
IPC. There may be an element of abetment in a conspiracy; but conspiracy is something more
than abetment. Offenses created by Section 109 and 120B, IPC, are quite distinct and there is no
warrant for limiting the prosecution to only one element of conspiracy, i.e. abetment, when the
allegation is that what a person did was something over and above that. Where a number of
offenses are committed by several persons in pursuance of the conspiracy it is usual to charge

24 AIR 1957 SC 340

25 AIR 1961 SC 1241

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them with those offenses as well with the offense of conspiracy to commit those offenses. If the
alleged offenses are said to have flown out of the conspiracy, the appropriate form of charge
would be a specific charge in respect of each of those offences along with the charge of
conspiracy.

DIFFERENCE BETWEEN ABETMENT AND CRIMINAL CONSPIRACY

Section 107 providing for the offence of abetment by conspiracy is punishable only if some act
or illegal omission in pursuance of that conspiracy is committed besides the agreement itself. But
sections 120A and 120B make the agreement itself an offence. Criminal conspiracy requires a
bare agreement to commit the offence. Thus, while section 120A provides an extended definition
of criminal conspiracy covering acts which do not amount to abetment by conspiracy falling
under section 107, section 120B provides a punishment for criminal conspiracy, where no
express provision is made in the IPC for punishment of such a conspiracy.

Thus, if the offence conspired to be committed is one which is already an offence under the IPC,
then, section 120B won’t apply. Similarly, when a conspiracy amounts to abetment under section
107, it is not necessary to invoke the provisions of sections 120A and 120B because the code has
made specific provisions for the punishments of abetment through sections 109, 114, 115, and
116, IPC. Hence, when a charge under section 107 exists, there is no need to frame a charge
under section 120B.

Thus, the differences can be summarized as follows:

1) Abetment is a process by which one or more engage or employ other(s) for commission
of an offence. The former i.e., the person, who abets is called the ‘abettor’, while the
latter i.e., the person who commits the offence with his own hands is called the
‘principal offender’. But, conspiracy is a process by which an agreement is entered into
between two or more persons for commission of an illegal act or doing/committing a
lawful/ legal act by illegal means. The parties to the agreement are called ‘Conspirators’.
2) In the offence of abetment a mere combination of persons or agreement between them
is not enough but an act or illegal omission must take place in pursuance of the
conspiracy and in order to the doing of the thing conspired for, but in conspiracy, the
mere agreement is enough, if the agreement is to commit an offence.
3) Abetment can be committed by one or more, whereas conspiracy can be committed
by two or more.
4) In abetment, sanction of competent authorities is not necessary to proceed against the
abettors, who merely abetted to commit a crime while in conspiracy, sanction of
competent authorities is necessary to proceed against the conspirators who merely agreed
to commit a crime.
5) Abetment is genus while the conspiracy is species.
6) Abetment per se is not a substantive offence whereas criminal conspiracy is a substantive
offence by itself and is punishable.
7) Abetment may be committed in various methods/ways viz., instigation,
conspiracy, intentional aid etc., but conspiracy is one of the methods of abetment.

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8) Crime of Abetment is explained in Sections 107 to 120 of the code while Crime
of Conspiracy is explained in Sections 120- A & 120-B of the Code.
9) Section 109 of the code is concerned only with the punishment of abetments for which no
express provision is made under the Penal Code. A charge under Section 109 should,
therefore, be alone with some other substantive offence committed in consequence of
abetment. However, the offence of criminal conspiracy is, on the other hand, an
independent offence. It is made punishable under Section 120 В of the code for which a
charge under Section 109 of the Code is unnecessary and, indeed, inappropriate.

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 BIBLIOGRAPHY

Acts Referred

Indian Penal Code, 1860

Books Referred

Criminal Law, PSA Pillai, Lexis Nexis.

Criminal Law, Prof. S.N.Mishra.
Criminal Law, K.D. Gaur.

Websites Referred

www.manupatra.com
www.legalservicesindia.com
www.scconline.com
www.indiankanoon.com

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