According to the section, whenever there is an agreement between two or more persons to do or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is a criminal conspiracy. The basic thing on which the criminality lies under this section is the ‘agreement’ which naturally requires at least two persons. ‘Agreement’ is not merely the stage of intention which is not culpable, but is much more than that.
It is a design to be carried into effect. The plot is an act in itself. It is not necessary that all members of the conspiracy must be aware of each detail of the conspiracy. But there has to be a common design amongst them and each conspirator must at his stage of the design carry it into effect. By and large each of them will know the important details of the conspiracy even though each may not be aware of each of the minutest details.
For instance, if there is a conspiracy amongst some members to commit a murder, each one of the conspirators will have to be aware of the major details of the conspiracy such as who is to be murdered, how is he to be murdered, when is he to be murdered and by whom is he to be murdered, even though other minute details may not be known to each of them.
To be liable of the offence of criminal conspiracy the agreement must be to do or cause to be done an ‘illegal’ act, or an act which is not illegal by ‘illegal’ means. The expression ‘illegal’ has been defined in section 43 of the Code and whenever this expression has been used in the Code, it will have this meaning only.
According to section 43 the word ‘illegal’ is applicable to everything which is an offence, or which is prohibited by law, or which furnishes ground for a civil action. Therefore, for criminal conspiracy the agreement may be to commit an offence, or to commit an act that is prohibited by law, or to commit an act which furnishes ground for a civil action.
For example, the agreement may be to commit murder which is an offence, or to commit breach of duty to provide food or shelter to someone to whom such legal duty is owed which is prohibited by law, or to effectuate a breach of contract between two persons which furnishes ground for a civil action. If the agreement is not to do or cause to be done an illegal act but an act that is not illegal, then it has to be done by illegal means.
Here also the word ‘illegal’ has the same meaning as given under section 43 of the Code. In other words, the law is that even an agreement to do or cause to be done an act that is not illegal may also amount to criminal conspiracy if the same is done by illegal means. It is important to note that Clause (2) of this section mentions an act which is not illegal by illegal means and not ’an act which is legal by illegal means’. This has been done deliberately. The reason for the same is that the word ‘illegal’ has been provided a definite meaning vide section 43 of the Code, whereas the word ‘legal’ has nowhere been defined by the Code.
There is a proviso clause in section 120-A. It says 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.
This means that out of the three kinds of agreement as mentioned above, the first kind has been given a different treatment than the other two kinds, that is to say, that agreement to commit an offence, will be treated differently than agreement to commit an act which is prohibited by law or agreement to commit an act which furnishes ground for a civil action. In case of an agreement to commit an offence mere agreement makes the conspirators guilty and no act in pursuance of the agreement need be done.
On the other hand, in cases of agreement to commit an act which is prohibited by law, or an act which furnishes ground for a civil action, some act besides the agreement must be done by one or more parties to such agreement in pursuance thereof, and only then will the conspirators be held guilty of criminal conspiracy.
Therefore, if the agreement is to commit murder, the conspirators are guilty of criminal conspiracy whether they do something or not in pursuance of the agreement. But if the agreement is to commit a breach of a duty to provide food or shelter to someone to whom such a duty is own under law, or the agreement is to effectuate a breach of contract between two persons which furnishes ground for a civil action, agreement alone will not make the conspirators guilty of criminal conspiracy, and in such a case some act besides the agreement, also known as overt act, is required to be done by one or more persons to such agreement in pursuance thereof to make the conspirators guilty for the offence of criminal conspiracy.
The explanation provided under this section states that it is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. In other words, the conspirators are guilty of criminal conspiracy whether the illegal act is the ultimate object of the agreement or it is merely incidental to the object of the agreement. The law does not treat these cases differently.
Criminal conspiracy is a continuing offence and subsists till it is executed or frustrated by choice of necessity.
Series of acts under one design
In Major E. G. Barsay v. State, the Supreme Court has observed that it is not necessary that all conspirators should agree to do one single illegal act; there may be a series of acts under a single design. The perpetrators of different crimes in pursuance of a single design may be held guilty of different offences which they commit but they are all liable for the offence of criminal conspiracy as well.
Similarly, there may exist a general conspiracy which may be the single design along with separate conspiracies in which all may play their part to fulfil the main single design. In Mohammed Hussain Umar Kodra v. K. S. Dalipsinghji, there was a general conspiracy to smuggle gold into India. The separate conspiracies were that this gold was to be smuggled into India from a number of foreign countries in which naturally different people were involved in different countries at different stages. The Supreme Court held that this was a case of general conspiracy.
Steps not known to all conspirators
The Supreme Court has also held in Yash Pal Mittal v. State, that when a few of the conspirators adopt certain steps in pursuance of the main design, and these steps are not within the knowledge of other conspirators, all the conspirators are liable for the offence of criminal conspiracy.
Inference of criminal conspiracy
Since direct evidence is often not available about this offence, criminal conspiracy may have to be inferred from, if the circumstances so warrant, the circumstantial evidence. Thus, in Mohammed Usman Mohammed Hussain v. State, the accused persons were selling explosive substances without valid licenses for a very long time.
The Supreme Court held that they were guilty of criminal conspiracy as they had been doing this for a very long time which could not have been possible without an agreement between them and this agreement was proved by necessary implication.
A theatre complex was being built by a businessman who was in need of money to complete the work. A person approached him and told him that his friends would be glad to finance him. A series of meetings were held between him and the team of financiers, documents were executed and money released in cash. This money was later on found to be in counterfeit currency. All members of the team were held guilty of criminal conspiracy and cheating.
A lady handed over a large amount of jewellery to a man with the intention that the same may be deposited in a bank for safe custody. The man pawned the same instead, and kept the proceeds unto himself without telling the lady anything about this transaction.
Another man who was the husband of the grand-daughter of the lady was aware of all this but yet did not disclose anything about it to the lady. He even told deliberate untruths about the matter. It was held that both men were guilty of criminal conspiracy.
The inference of criminal conspiracy is to be drawn only when the evidence on record is so clear as to point out towards an apparent implied conspiracy between the accused persons. The Supreme Court has held in Jatlisur Surangbhai v. State, that the chairman of a large co-operative society who has to deal with multifarious activities of his establishment is not expected to know each happening that is taking place there and, therefore, he cannot be held guilty vicariously for the criminal breach of trust being committed by some employees.
A lawyer who identifies certain persons as claimants in a land acquisition compensation proceeding believing their statements to be true and agreeing thereby to represent them in the proceeding cannot be held liable merely on the basis of this much evidence for the offence of criminal conspiracy when these claims were later on discovered as fraudulent.
Where the evidence on record did not show that the fourth accused entered into an agreement with three accused persons in order to get ‘ruqqua’ forged from him to gain entry into the house of the deceased, the Supreme Court held that the charge of criminal conspiracy must fail.
Where a bank assistant deposited bank’s fund in the account of his wife and then embezzled the same, the wife could not be held liable for criminal conspiracy especially when it was proved that she had neither filled withdrawal forms nor cheques to withdraw money.
A medical store owner and a government servant were charged with the offence of criminal conspiracy for preparing false cash memos of medicines and obtaining medical reimbursement from the government.
The medical store owner admitted that he had prepared false cash memos but said that he did not know as to what would be done by them. The Supreme Court disbelieved this explanation but observed that even if an explanation was liable to be rejected, that would not mean that the prosecution had established the charge against the accused.
The accused could be convicted only when the prosecution has proved the guilt of the accused beyond reasonable doubt, whether on the basis of direct evidence or by circumstantial evidence.
The accused was in possession of unexplained money. No agreement could be said to have been hatched among all the accused. The accused was merely related to the main accused and claimed ownership of the currency seized by the authorities. The convictions were set aside.
The accused, an agent of the Life Insurance Corporation was charged with cheating the LIC on the ground of getting policies issued on the basis of forged documents and receiving commission in relation to them. The commission was credited to the accused’s account in natural course. The forged documents were made by the co-accused. There was no evidence of his having done that with knowledge or consent of the accused. It was held that the accused was entitled to acquittal.
In Central Bureau of Investigation v. V. C. Shukla, the Supreme Court held that where the prosecution failed to prove that one of the two accused was a party to a criminal conspiracy, the charge of criminal conspiracy cannot stand against the other as in conspiracy there must at least be two persons.
In State of Tamil Nadu v. Nalini and others, there was a criminal conspiracy to kill a former Prime Minister of India. There was a voluntary confession by one of the main accused assigning her pivotal role in the conspiracy. The confession was corroborated by evidence of witnesses and material documents.
The Supreme Court held the conviction proper under sections 302 and 120-B of the Code. Another accused who bought power battery for explosion of human bomb and had known that the same was to be used in the explosion, is also guilty of criminal conspiracy. But mere association of those accused persons who had mere association with hardcore militants who were responsible for the assassination, would not make them guilty.
In Lal Singh v. State of Gujarat, the co-accused who was a foreign national was found staying in India without valid passport and visa. His movement from one place to another with the main accused was established. Large quantities of arms and ammunitions were recovered from the premises occupied by the main accused. The Supreme Court held that from the above facts inference of criminal conspiracy between the main and the coaccused could be drawn.
In Nazir Khan v. State of Delhi, a case under sections 120-B, 121-A, 122 and 124- A of the Indian Penal Code, there was a criminal conspiracy to kidnap a foreign national visiting India and to thereby pressurise the Indian government to release dreaded militants confined in jails in India.
The kingpin who masterminded the whole conspiracy was allowed to leave India before completion of trial in exchange of passengers made hostages in a hijacked flight. The object and purpose for which the conspiracy was hatched was clear from the fact that messages were sent to embassies, government officials, high dignitaries and the media indicating the nature of the ransom and the consequences if demanded ransom was not fulfilled.
The confessional statements of six other accused coconspirators were voluntarily made. Circumstances clearly showed the role played by each of the accused persons in the conspiracy. The Supreme Court held that the offences could be treated as offences against the State and considering the gravity of the offences and the dastardly nature of the acts and consequences which had flown out and would have flown out in respect of the life sentence, incarceration for a period of twenty years would be appropriate. The essential ingredient of the offence of criminal conspiracy in the present case was the agreement to commit an offence and the proof of an overt act by the accused was not necessary.
Conviction of a single person for criminal conspiracy
An important question that arises in a matter relating to criminal conspiracy is whether a single individual can be held guilty of this offence. Outwardly it seems that this is impossible in view of the fact that criminal conspiracy is an agreement between at least two persons and, therefore, a minimum of two persons can be convicted of this offence.
But this is not true as the argument is basically faulty. The section only says that the agreement must be between two or more persons and not that the conviction must be of at least two persons. There may be following five situations when a case of this kind comes up before a court:
1. Where the total number of participants in the crime is proved beyond doubt and also the participation of the accused being convicted is proved, his conviction is legal. For instance, where the prosecution proves that a total of four persons participated in the crime out of whom X was definitely one but who were the other three is not proved beyond doubt, the conviction of X is legal.
2. Where the total number of participants is not proved beyond doubt but participation of the accused being convicted is proved, his conviction is probably not good in law. For instance, where the prosecution fails to prove the exact number of participants but proves beyond doubt that X was definitely one of them, then probably conviction of X is not justified because the prosecution has failed to prove the exact number of persons amongst whom there was an agreement. There may be a difference of opinion in this regard because some people may argue that the prosecution has proved the existence of more than one person amongst whom there was the agreement and also proved the presence of the accused being convicted beyond doubt and so his conviction should be legal.
3. Where all the participants are named and only they, and no others, have entered into the agreement and the single individual accused being convicted was definitely one of them even though participation of others named could not be proved beyond doubt, the conviction of the single individual accused is illegal and he has to be acquitted along with all others. For instance, if the case of the prosecution is that the agreement was between À, Â, Ñ and D, and no one else, but the prosecution fails to prove the participation of Â, Ñ and D beyond doubt even though it does prove that A was definitely one of them, conviction of A will be bad. The reason for this is that the prosecution says that the agreement was between À, Â, Ñ and D only and no one else but it fails to prove the case against Â, Ñ and D beyond doubt, meaning thereby that it fails to prove the existence of an agreement between them and A and thus A’s conviction will be bad.
4. Where the person being convicted is not a public servant and his presence is proved beyond doubt by the prosecution while all other participants are public servants and sanction for their prosecution has not been given by the appropriate authority and as such no case has begun against them. In such a situation conviction of the person who is not a public servant is good. For instance, A, who is not a public servant, is being prosecuted for criminal conspiracy along with Â, Ñ and D who all are public servants. Since sanction for prosecution of Â, Ñ and D has not been granted by the appropriate authority they are, in fact, not being prosecuted. Here the conviction of A will be good if the prosecution proves that he was definitely one of the conspirators along with the others.
5. If the prosecution has proved the case against the person being convicted that he was one of the conspirators along with the other conspirators, but the other conspirators die during the pendency of the case before a final verdict is given by the Court. In such a situation, the conviction of the person being convicted will be legal. For instance, if the prosecution proves that À, Â, Ñ and D had committed the offence of criminal conspiracy but during the pendency of the trial before the final verdict by the Court Â, Ñ and D die, here the conviction of A alone is good.
Glanville Williams, therefore, rightly says’ that a person may be indicted alone for conspiring with persons who are unknown, dead uncaught, incapable of committing the crime, or immune or have been pardoned.
In the famous case of Duguid, it was held the if A is charged with having entered into a conspiracy with B, but A only is prosecuted because Â being the Head of a State could not be proceeded against, A could still be convicted alone of conspiracy, though if A and Â were tried together the acquittal of Â would necessarily have meant the acquittal of A as well.
The reason for this is that the criminality in the offence of criminal conspiracy lies at the stage of agreement, and if at that time there are two or more persons involved, the requirement of the law is fulfilled. Similar would be the judgment where Â is not the Head of State but is a public servant but sanction for his prosecution is not given by the competent authority vide section 197, Code of Criminal Procedure, 1973.
In Tapandas v. State? the appellant along with three other named accused were charged with having committed the offences under sections 471 and 420 read with section 120-B of the Code for conspiring to induce the controller of imports through forged documents to grant import licences. The Supreme Court, while setting aside the conviction of the appellant, held that in case of a charge of criminal conspiracy against named accused persons once all except one are acquitted, the conviction of only one is bad in law because of the reasons stated above.
This decision was, however, distinguished in the case of Bimbadhar Pradhan v. State? where the facts were that the appellant, a government servant, and four other accused persons who were subordinate to him were charged under sections 409, 477-A and 120-B of the Code for committing criminal breach of trust by falsifying accounts in pursuance of a criminal conspiracy.
There was another accused who was not prosecuted since he had turned approver in the case. The court acquitted the four accused persons giving them benefit of doubt but convicted the appellant of criminal conspiracy. In the appeal before the Supreme Court the question was whether one single person could be convicted of criminal conspiracy. Dismissing the appeal the Supreme Court held that the conviction of the appellant alone for criminal conspiracy was perfectly valid in law. The Topandas decision was distinguished. The Supreme Court observed that the approver in his testimony had involved himself also in the criminal conspiracy with the appellant. The other evidence also corroborated this. Therefore, there was no doubt that there existed a conspiracy between the approver and the appellant, and since the approver had been granted immunity from prosecution, the appellant alone was guilty under law for committing the offence of criminal conspiracy.
In Bhagat Ram v. State, two named accused persons were charged with having entered into a criminal conspiracy to extort money as illegal gratification. One of them was acquitted of the charge. The Supreme Court held that the charge against the other person, the appellant, also must necessarily fail when no other person is alleged to be involved in the conspiracy.
In Pradumna v. State, a criminal conspiracy between two persons was established. The charge against one of them was, however, dropped as necessary sanction for this prosecution was not obtained as required under section 197, Code of Criminal Procedure, 1973. The Bombay High Court held that the acquittal of the one does not ipso facto mean acquittal of the other person of the charge of criminal conspiracy.
Since it was a case of acquittal on a technical ground like not obtaining prior sanction, this did not mean that the acquitted person had not conspired with the other. Therefore, if there is adequate evidence of criminality against the other in the conspiracy, he alone could be convicted of criminal conspiracy.
In Â. H. Narasimha Rao v. Government of A.P., the accused was charged for committing an offence in conspiracy with seven others who were all acquitted. It was held that the accused could not be convicted under section 120-B on the mere ground that he was head of a section of the branch where the fraud was alleged to have been committed.
Separate and joint conspiracies
It is not necessary that each member of a conspiracy must communicate with each of the other members of the criminal conspiracy. The only thing that needs to be proved is that there was a common design amongst all the conspirators. The offence of conspiracy is different from the offence which is committed in pursuance of the conspiracy, Naturally, a criminal conspiracy will always precede the offence to be committed in pursuance of it.
Sometimes two conspiracies, one small and the other big, may cover such area which partly may be a part of each conspiracy, the bigger one taking within its wings the smaller one. But they continue to be separate and may thus be tried separately. However, the concerned prose autors are always at liberty to move the superior court to permit them to be joined and thus tried jointly. In Ram Lai Narang v. State, the first conspiracy related to a plan to obtain possession of valuable pillars from the court by cheating and then to misappropriate them. The second conspiracy related to disposal of the state property by exporting the pillars to London.
The two conspiracies were different but it could probably be argued that the subject-matter of the second conspiracy could cover within itself the subject-matter of the first conspiracy. The Supreme Court held that the continuance of the proceedings of the two conspiracies at Ambala and Delhi respectively were perfectly in order, and the prosecutors of the two cases were also free to move the superior court, if they so wished, to have the two cases tried together.
In Amrita Lai Hazra v. Emperor, a case of historical importance, it was held that the charge of criminal conspiracy must be definite and the evidence must lead to a clear illegal design of the agreement. If some of the conspirators commit some offence in pursuance of the conspiracy while some others do not do so, they all can be charged and tried together and their respective guilt of conspiracy or the offence in pursuance of the same, as the case may be, must be accordingly proved.
In Darshan Singh v. State, the Supreme Court disbelieved the story that the accused would hatch a plot to commit an offence while drinking in presence of a stranger. The Supreme Court observed in Balwant Kaur v. Union Territory of Chandigarh? that it is frequently necessary to convert one of the conspirators into an approver with a view to prove a criminal conspiracy. This has to be followed by corroborative evidence.
Meaning of person
Even though section 11 of the Code defines the word ‘person’ as including any company or association, or body of persons, whether incorporated or not, it seems reasonable to hold that the word ‘persons’ in section 120-A of the Code must mean natural persons only because an agreement has to be between at least two minds.
Therefore, ordinarily there cannot be a criminal conspiracy between the one man director of a one man company and the man himself. If the same man is the director of two separate one man companies, the same principle must apply and there cannot be a conspiracy in such a case between the two same one man directors of the two companies.
Conspiracy between husband and wife
At common law a conspiracy between a husband and his wife could not exist as their entity was one and there were no other parties involved in the agreement. But either of them could be convicted for inciting the other to commit a crime is the same was proved. Section 5 (8) of the Criminal Law Act, 1977 in England has now abolished the rule relating to criminal conspiracy between a husband and wife and they cannot be held guilty of the same. The common law rule does not apply in India where both can be convicted for criminal conspiracy together.
In Tej Khan v. State of Madhya Pradesh, there was an allegation that the coaccused wife of the accused took the prosecutrix, a minor girl, to her house and closed the door from outside, and thereafter the accused committed rape on the prosecutrix. This was proved by convincing evidence. The Madhya Pradesh High Court held that this cannot be discarded only on the reasoning that a wife would not help her husband in commission of rape on a girl. The accused was held guilty under section 376 and the co-accused under section 376 read with section 120-B of the Code.
Sections 34 and 120-A
Sections 34 and 120-A of the Code lay down different principles of law and there is substantial difference between the two. The former lays down a principle when a crime is committed by several persons in furtherance of common intention of all, while in the latter the liability is based on agreement between two or more persons to do or cause to be done an illegal act or an act which is not illegal, by illegal means.
Abetment by conspiracy and criminal conspiracy
Under the second clause of section 107 a person commits abetment by conspiracy who engages with one or more other person or persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing.
In criminal conspiracy, on the other hand, there had to be an agreement between two or more persons to do or cause to be done an illegal act or an act which is not illegal by illegal means. The basis of liability of abetment by conspiracy is ‘engagement’ whereas that for criminal conspiracy is ‘agreement’ between two or more persons. ‘Engagement’ may exist even if the more important details of a conspiracy are not known as is clear from the fifth explanation of section 108, but ‘agreement’ presupposes that at least the more important details of a conspiracy are known to the conspirators.
Again, in abetment by conspiracy an act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing, whereas an agreement to commit an offence in case of criminal conspiracy does not require anything to be done in pursuance of the conspiracy and mere agreement to commit an offence makes one guilty even if nothing is done in addition.
Necessity of previous sanction in some cases of criminal conspiracy
The law makes it necessary to obtain previous sanction of appropriate authority for commencing proceedings in some cases of criminal conspiracy. Section 195 (1) (a) (iii) of the Code of Criminal Procedure, 1973, says that no court shall take cognizance of any criminal conspiracy to commit an offence under sections 172 to 188 of the Indian Penal Code except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. According to section 195 (1) (b) (iii) of the Code of Criminal Procedure, 1973 no court shall take cognizance of any criminal conspiracy to commit any offence specified in sub-clause (i) or sub-clause (ii) of clause (b) except on the complaint in writing of that court, or of some other court to which that court is subordinate. According to section 196 (1) (b) of the Code of Criminal Procedure, 1973, no court shall take cognizance of a criminal conspiracy to commit any offence mentioned in sub-clause (a) except with the previous sanction of the Central Government or of the State Government. Section 196 (2) of the Code of Criminal Procedure, 1973 states that no court shall take congnizance of the offence of any criminal conspiracy punishable under section 120-B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit a cognizable offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the district Magistrate has consented in writing to the initiation of the proceedings provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be necessary.
According to section 197 (1) of the Code of Criminal Procedure, 1973, when any person who is or was a judge or Magistrate or a public servant not removable from his office save by or with the sanction of the government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction (a) in case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a state, of the State Government.
Section 120-A of the Penal Code and section 10 of the Evidence Act
Section 10, Indian Evidence Act, 1872 deals with relevance of facts with respect to things said or done by conspirator in reference to common design. It says that where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the person believed to be so conspiring, as well for the purpose of proving the existence of the criminal conspiracy as for the purpose of showing that any such person was a party to it.
The illustration to the section says that reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India. The facts that Â procured arms in Europe for the purpose of the conspiracy, Ñ collected money in Calcutta for a like object, D procured persons to joining the criminal conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which Ñ had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A‘s complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.