This article is written by Darshit Vora from SVKM NMIMS School of law. The article consists of various provisions present in Indian laws to deal with the offence of criminal collusion.
Table of Contents
Introduction
Collusion refers to a secret agreement between two or more persons to carry unethical or any unlawful act. According to Black’s law dictionary, collusion refers to a deceitful agreement to compact two or more persons, for one party to bring an action against the other for some evil purpose to defraud a third party of his rights. Collusion is synonymous with conspiracy. In India as well in English laws, it is considered as joint evil done with an intent to cause harm. Conspiracy and commission are quite different, conspiracy is a step before the commission of the crime. During the stage of conspiracy though the act is not committed in certain cases can still amount to criminal liability.
Illustration If A, B, and C are telecom regulation company if A and B collude to spread fake news about the company C to reduce the market share of the company would amount to collusion and attract a criminal liability as because both A and B are entering into an agreement that is not a lawful one.
Laws in India which prevents criminal collusion
Provisions in the Indian Penal Code regarding criminal Collusions
In the Indian Penal Code offence related to criminal collusion is present in various sections:
- Criminal Act did with common intention(Section 34 to Section 38).
- The offence did with a Common Object of an unlawful assembly(Section 149).
- Person Charged with Criminal Conspiracy (Section120 and Section 121A).
- Persons committing Dacoity with Murder (Section 396).
- Person jointly committing an act of housebreaking and house-trespass.
Person charged with Criminal Conspiracy
After the amendment of 1913 provisions like 120(a) and 120(B) were added to the Indian Penal Code.
Section 120A of the Indian Penal Code: The sections mention the essentials of criminal collusion:
- There should be two or more persons;
- They must be engaged in an illegal act; or
- The act may not by itself be illegal by illegal means such an agreement is a designated criminal conspiracy.
Collusion does not merely include the intention of persons but an agreement between them to carry out an unlawful act in an unlawful means.
Punishment
Section 120(B) of the Indian Penal Code: This section mentions the punishment which the person has to undergo if he/she is the party to the conspiracy.
- Commits an offence punishable with death or imprisonment would be sent to rigorous imprisonment for two years and upwards.
- Has committed any other offence would be sent to imprisonment not extending more than 6 months.
Criminal liability can be attracted to a person if a person commits, omits, or abets another person to commit an act. It is not necessary under S. 120(A) to prove a charge of the conspiracy through direct evidence; it can also be done through circumstantial evidence. In the Ram Narain Poply case, the Court held that a conspiracy is a subsistence act even if one conspirator commits an act all of them would be liable under S. 120B of the Indian Penal Code.
Case: State vs Nalini (Rajiv Gandhi Murder Case) (1999)
Facts: In this case, Prabakaran, Pottu, Amman, Akhila, and Shrinivasan were the mastermind in an operation to kill Rajiv Gandhi. The act was executed by Sivarasan, and Dhanu and another was accused which provided them a haven for the crime before and after their act.
Judgment: The apex Court held that agreement between two or more persons to do an illegal act amounts to the offence of conspiracy. The person is not forced to take part in the act actively. They were punished under Section 120(B) read with Section 302 of the Indian Penal Code.
Case: Sanichar Sahani vs State of Bihar (2009)
Facts: In this case, the person was accused of conspiring to murder his brother and his father for not paying rangdhari under S.120B read with S. 300 of the Indian Penal Code.
Judgment: The Apex Court set aside the appeal the appellant was held liable of the offence and there was no prejudice against the appellant for framing such charge. He was thus convinced under Section 120B read with Section 300 of the Indian penal Code.
To escape from the liability, the defences that the accused can use are as follows:
- The accused was not the part of the collision.
- The accused was not involved in the conspiracy.
- The accused didn’t have a common object to commit that act.
Wage or attempt to wage a war against the government
Treason is a word that is derived from french word trasir which mentions betrayal. It is a common law concept that was incorporated. It refers to when two or more persons collude to wage war or attempt to wage war or abet to wage war against the government would be liable for waging a war against the government.
Due to the gravity of this offence an act of waging the war, attempt to wage a war, abet to wage a war against the government they all would be treated equally and would be given the same punishment.
Case
Mohd Afzal Guru Shaukat hassian Guru vs State of NCT Delhi (2005).
Facts: In this case, five heavily-armed terrorists entered the parliamentary house due to which many people died. All the terrorists which were involved in this act. There were four accused namely Mohd Afzal Guru, Shaukat Hussain, As Gillaini, Afsan guru. They were accused of helping the terrorist from outside.
Judgment: The Court convicted three terrorists under S. 121A, S302A read with S. 120A of the Indian Penal Code. However the fourth accused was released from all his charges. The Court condemned this act and ordered death sentences to the other accused.
Though they didn’t take active participation in the act still they were convicted of the offence because they had the common intention to wage a war against the government.
Mohammad Ajmal Kasab vs State of Maharashtra (2012)
Facts: In this case, the accused was one of the terrorists who was involved in the Mumbai terror attack. Ten terrorists including Kasab landed in Mumbai; they killed many people across various places in Mumbai. The death penalty of the accused was challenged in the Supreme Court.
Judgment: The Court dismissed the appeal of the accused and held that the act committed by the accused to wage a war against the government.
Punishment
Section 121A of the Indian Penal Code: This Section highlights about the punishment who conspires, commits, over waves by criminal force the government the punishment may extend to 10 years and be liable for fine.
Criminal Act had been done under a common intention
Section 34 of the Indian Penal Code: This section mentions that a criminal act that is committed by several people having common intention each of such persons would be liable for the offence even if the act is committed by either of them.
The word common intention was added to the section in the 1870 amendment act.
Essentials:
- An act was done by several persons.
- There must be a common intention.
- There must be participation of all in the commission of the offence in furtherance of common intention.
Case Barendra Kumar Ghosh vs King emperor(1924).
Facts: In this case, the accused were charged under S. 302 read with S.34 of the Indian Penal Code for the murder of a sub-postmaster. The contention of the accused was that he was not the one to fire fatal shorts. He was standing outside the door.
Judgment: The Court rejected the claims of the accused and mentioned that if there are separate, diverse, similar acts committed by several persons in furtherance with common intention each of the persons would be liable if he had done it himself.
Section 35 of the Indian Penal Code: Whenever an act is done which is criminal with a criminal knowledge or a criminal intention done by several persons each of them having knowledge and intention would be liable for the offence.
Section 36 of the Indian Penal Code: Whoever commits a criminal offence by an act or by omission by several persons each of them would be liable for the offence.
Illustration: A and B intentionally causes death. A beats C and B don’t provide C food which leads to his death, both of them would be liable for the offence.
It is an act of intentional co-operation. The act is committed with consciousness without showing the intention.
Section 38 of the Indian Penal Code: Person involved in a criminal act not having a common intention would be liable with a different punishment.
The offence has been done with a common object of an unlawful assembly
Section 149 of the Indian Penal Code: Every member of the unlawful assembly would be liable for the offence having a common object.
Essentials:
- The offence must be committed by the member of the unlawful assembly.
- All the members of the unlawful assembly should have a common object.
- The offence must be such that the embers knew it was likely to be committed.
Members of the unlawful assembly having a common object attract vicarious liability where one member commits an offence each of them would be held liable for the same.
Case
The State of Rajasthan vs Nathu (2003)
Facts: In this case, five accused entered the house of the complainant with firearms with the common object of killing the complainant. Complainant not being present one of the accused killed his son.
Judgment: the High Court was of the view that conviction should be given to the accused who killed the complainant’s son and the other accused were acquitted. However, the Supreme Court didn’t hold the same view and claimed that after the formation of unlawful assembly the member held the common object to kill the complainant. If another offence is committed knowledge is capable of safely being attributable to the members of the unlawful assembly each of them would be vicariously liable.
Punishment
A person who is a member of the unlawful assembly shall be punished with six-months imprisonment and fine or both.
A person committing dacoity with murder
Dacoity with Murder: It is an offence that involves a group of members having a common intention to commit the act of dacoity while committing it any or other member causes the death each of them would be liable as if the act is being committed by him.
Essentials:
- Dacoity was committed.
- Five or more persons committed it conjointly.
- One or more person has committed the murder.
- Murder committed during the commission of dacoity.
It creates a joint liability on all those having a common intention to commit this grievous act.
The offence is committed in a non-bailable, non-compoundable, and cognizable offence.
Case
Om Prakash vs State of UP(1959)
Facts: In this case, a robbery plus murder was committed by the accused in the night. To the moonlight and lanterns, the eye witness was able to identify the accused.
Judgment: The court convicted the accused because all the accused had the common object which thus attracts a joint liability on all the accused.
Punishment: The convicted under this section would be awarded a death or life imprisonment, or rigorous imprisonment that may extend to ten years.
Person Jointly attracting the offence of housebreaking or House Trespass.
Section 460 of the Indian Penal Code: All persons concerned in lurking house, housebreaking shall be punishable who causes death or grievous hurt.
Essential
- Two or more persons have committed house-trespass or housebreaking.
- One or more persons have attempted to commit grievous hurt or murder.
- The person had committed the offence at night.
This is a cognizable offence and a non-bailable offence and a compoundable offence. The people involved in this offence shall be punished with imprisonment for life or imprisonment that may extend to 10 years or fine.
Illustration
A, B, and C break the door of D and enter D’s house. Spotting them D threatens them that D would call the police. Afraid of this A committed the murder of D. In this scenario A, B, and C would all be liable for housebreaking along with the murder of D.
Provision under Competition Act, 2020
There are two forms of agreements that are considered unlawful.
- Horizontal Agreement
- Vertical Agreement
Horizontal Agreement: These are agreements between rival companies to carry out various ethical acts.
Issue of Horizontal Agreement
Limiting the production and supply: Due to a decrease in production, it creates a shortage of products in the market thus it helps the parties to increase the prices of their products.
Market sharing: It is a practice that involves competitors to allocate customers based on the geographical area it is a non-poaching agreement done formally or informally agreeing not to enter in competitors market.
Price fixation: An agreement done with the competitors setting the price of the product rather than deciding it through free-market forces.
Bid rigging:: In this case, the parties collude to choose a winner of the bidding process. The competitor may intentionally take low bids or won’t bid at all. The companies mutually agree and choose a winner of the auction before it happens.
Vertical Agreement: The parties enter into an agreement that is in the same supply chain at different stages like producers and distributors.
Various types of vertical agreements are as follows:
- Tie-in-agreement
- Exclusive supply agreement
- Resale price maintenance
- Refusal to deal.
Illustrations: A is the dealer of x scooter which is being produced by Y .Y gives exclusive dealership to A for selling that product this would amount to a vertical agreement.
The Competition Act restricts the practice of cartels. Cartel system is a process where a group of people comes together having a common object to dominate the market. The parties might be involved in various criminal offences like bid-rigging, price-fixing, etc. It is a form of a horizontal agreement.
According to Section 2(c) of the Competition Act
An association of producers, vendors, distributors, merchants, or service providers, controls the production, distribution, sale, or price of a trade-in-goods or supply of goods.
It is an act committed by a few against the public interest to create a monopoly in the market:
- The existence of an agreement between the competitors
- The producers, vendors, merchants, or service providers must be engaged in the same field.
- The main motive is to control the market by restricting production, distribution, sale, or price of trade-in goods or supply of goods.
Defences:
- The seller didn’t have the intent to hide this from the customers.
- The party had taken reasonable steps to inform the customers
- No intent to detriment the customers.
Provision under the Indian Evidence Act
Section 10 of the Indian Evidence Act: Where there is reasonable ground to establish that two or more persons colluded to form a conspiracy with their act and statement must be proportioned with their common intention.
To a person liable under this section, there must be prima facie evidence to prove that the accused were involved in a conspiracy.
Illustrations
B procured arms from Pakistan, C collected money from California, D influenced many others to join the organization. The arms that were collected from B were sent to Calcutta and the money was sent to Kabul in Pakistan. If A enters the organization due to the influence of unawareness about the act that was done still there is reasonable ground to believe that the A was also involved in the conspiracy.
Case
Sayendra Saraswati Swamigal v. State of Tamil Nadu (2005)
In this case, the court held that prima facie existence of evidence is an accepted statement made by any one of the conspirators in furtherance to common intentions would be admissible against all.
Case
Emperor vs Safi Ahmed (1925)
In this case, it was held that all conspirators are agents of each other and an act committed by any of the conspirators would attract liability on the other conspirator in furtherance with common intention.
Conclusion
Under Indian laws, there are various provisions to deal with criminal collusion. Civil collusion is very different from criminal collusion because in criminal collusion the laws are codified. The result of the collusion is that all persons having a common intention would attract liability on all even though the act is being committed by one. The most essential ingredient in cases of conspiracies is men’s rea. The last amendment under the Indian Penal Code on conspiracies was passed under British rule, the existing rules required to be evaluated and amendments should be made if necessary.
References
- https://blog.ipleaders.in/competition-act1998-and-the-cartel-offence-public-enforcement-and-procedure/
- https://www.barandbench.com/columns/criminal-conspiracy-law-applicability
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