This article is written by Pujari Dharani, a B.A.LL.B. student at Pendekanti Law College, affiliated with Osmania University, Hyderabad. It explains the offence of criminal conspiracy and its punishment under Section 120B of the Indian Penal Code, 1860 in detail. The article further provides evidence rules and important case laws.
Have you ever heard that a group of people are punished for a crime they themselves did not commit, but planned and agreed to commit? If it is not, then it is surprising for you to know that agreement to commit a crime is also an offence, known as “criminal conspiracy”. Now, you may think about a legal principle in criminal law that states that a mere intention to commit an offence is not punishable until he or she makes a physical act of such intention by some overt illegal act or omission. But criminal conspiracy is an exception to this legal principle. That is, in the presence of mens rea, which means guilty mind conspiring to commit an offence, even if there is no actus reus, i.e., a physical manifestation of the guilty mind, a case for criminal conspiracy can be established.
This article explains the offence of criminal conspiracy, its essential elements, nature, and most importantly, what kind of evidence is admissible by a court and how the offence is punished with the help of multiple case laws.
Section 120B of the IPC: criminal conspiracy
Section 120B of the Indian Penal Code, 1860 (hereinafter mentioned as “IPC”) deals with the punishment for the offence of ‘criminal conspiracy’, which is defined under Section 120A of the IPC. This offence was not included when the IPC was drafted in 1860. But, through the Indian Criminal Law (Amendment) Act, 1913, this offence was inserted into the Penal Code by creating a new chapter, i.e., Chapter V-A which exclusively dealt with criminal conspiracy.
Criminal conspiracy is different from other crimes described under the IPC because an offender will be convicted for this offence when intention alone exists. Whereas, for other crimes, there is a general principle that the mere presence of a mental element without any act or omission is not punishable.
Definition of criminal conspiracy
As defined under Section 120A of the IPC, the act of agreeing by two or more persons to commit or cause to commit an illegal activity or a legal activity, which is accomplished through an unlawful method, is regarded as a criminal conspiracy and parties involved in such agreement are known as conspirators.
By the above definition, we can understand that the mere intention to commit a crime by one person is not being punished, but it is punished as a criminal conspiracy when such a mental element takes the form of a physical act of an agreement between two or more persons.
Additionally, the proviso to Section 120A of the IPC accepts a bare agreement of the above-described nature until there is an act in furtherance of the agreement by any one or more parties. Such an act may not be the commission of the crime itself; it can be a preparatory act as well, like buying a weapon to commit a murder.
The Supreme Court, in the case of State of Tamil Nadu through the Superintendent of Police, CBI, SIT v. Nalini and 25 Others (1999), referred to the common law definition of criminal conspiracy stated by Lord Denman in King v. Jones (1832) as “a conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful; and punishable if for a criminal object, or the use of criminal means.”
Important aspects to make the accused liable under Section 120B of the IPC
The following are important aspects to consider while construing the crime under Section 120A of the IPC, i.e., criminal conspiracy and, subsequently, punishing the parties of such conspiracy under Section 120B of the IPC.
Intention (or mens rea)
Most necessary is the intention of the accused persons involved in the alleged criminal conspiracy. If they do not intend to commit any unlawful act, then they are not punished under Section 120B of the IPC. It is said to be a conspiracy, only when two or more persons incorporate an intention to commit an offence in themselves. Therefore, the intention is a sine qua non to construe an act as a criminal conspiracy.
In addition to this, every member of the conspiracy will be punished for their common intention, even if only one or a few among them acted in furtherance of the common object of the criminal conspiracy, as stated by the Supreme Court in the State of Tamil Nadu through the Superintendent of Police, CBI, SIT v. Nalini and 25 Others (1999).
Overt act (or actus reus)
In general, actus reus is not essential to establish the offence of criminal conspiracy. Nevertheless, in cases where an agreement, whose object is not illegal, is alleged to be criminal conspiracy due to the adoption of illegal methods, an overt act by one or more conspirators will be an additional essential to prove by the prosecution before the court.
For those agreements where the object itself is unlawful, i.e., parties having intention and agreement to commit a crime which is prohibited by the Indian statutory enactments, making an agreement shall be considered as actus reus, not its implementation. Without the physical manifestation of the intentions, the criminal act cannot be proved as the major reason for its essentiality to punish those persons under Section 120 of the IPC.
The Delhi District Court indicated, in the case of State v. Anil Aggarwal and Anr. (2019), that physical manifestation of common intention is also one of the primary requisites to construe the offence of criminal conspiracy because the agreement to commit the crime among conspirators cannot be proved, especially if it is an implied agreement.
Essential elements of criminal conspiracy
The essential elements of the offence of criminal conspiracy, mentioned in Section 120A of the IPC, need to be fulfilled to make accused persons punishable under Section 120B of the IPC are as under:
Parties shall be two or more persons
The number of conspiring members involved in the criminal conspiracy shall be at least two members. If there is only one person, he or she cannot be guilty of criminal conspiracy because one cannot conspire with himself. On the other hand, if the co-conspirator did not commit the crime but had the intention to commit it, such a person will be liable under Section 120B of the IPC. The rationale is that because of one’s encouragement or support, such commission of illegal acts have occurred. If not supported by the co-conspirator, the crime may be impossible for the main accused. This rationale became a ground to punish the co-conspirators as well under Section 120B for their involvement or abetment.
Agreement to commit a crime
The existence of an agreement to commit an unlawful act or a legal act in an illegal manner between two or more persons is mandatory. The mere intention between members cannot constitute a criminal conspiracy unless they came forward and made an engagement and association among themselves to infringe on the law of the land. If their intentions and actions are the same but independent, they are not conspirators. Also, mere knowledge and conversation about a crime shall not be considered a criminal conspiracy, as decided by the Supreme Court in Sudhir Shantilal Mehta v. C.B.I (2009). Thus, a meeting of minds is essential to punish someone under Section 120B of the IPC because conspiracy arises from the completion of an agreement between accused persons.
Besides this, it is important to mention that Section 24 of the Indian Contract Act, 1872 makes agreements for illegal purposes void and unenforceable in a court of law. In this case, the parties to the civil suit are not punished for their agreement to act unlawfully, instead making that agreement null and void. On the other hand, if the illegal purpose is so gruesome that such acts are considered crimes under the IPC, then the parties of such an agreement will be made liable in the criminal courts.
To commit an illegal act
The object of such an agreement shall be either to commit or to cause an illegal act. If an act by the offender is not unlawful but committed through unlawful means as stipulated under Section 43 of the IPC, the act is still considered to be an illegal act. The commission of the crime doesn’t need to be the ultimate object of the agreement. Even if such commission is just incidental to the object of the agreement, It is enough to constitute the crime under Section 120B of the IPC.
Nature of offence under Section 120B IPC
The offence under Section 120B of the IPC i.e., criminal conspiracy, is recognised as a continuing offence by the Supreme Court in Ajay Agarwal v. Union of India and Ors. (1993). This offence is deemed to be continued till the moment when the commission of the offence to which they are planned is executed, when the members repudiate the agreement among them, or when the agreement is frustrated by choice or necessity. Till the point of execution, repudiation or frustration, the conspiracy is said to be continuing and, during this period, whoever is the party to it, will be convicted under Section 120B.
Besides this, as per the First Schedule of the Code of Criminal Procedure, 1973 (hereinafter mentioned as “CrPC”), in the case of criminal conspiracy to commit an offence whose punishment is death, life imprisonment or rigorous imprisonment for two years or more, the offence to which the accused persons conspired should be taken into account for determining whether such conspiracy is bailable or compoundable and which judge is appropriate to conduct the trial. In the case of another criminal conspiracy, except those mentioned above, is bailable, non-cognizable and triable by the Magistrate of the first class.
Types of evidence for proving criminal conspiracy and its admissibility
The crime of criminal conspiracy is very different from other crimes in the point that physical conduct is not an essential element to prove in court. It is also said that the agreement between conspirators need not be made expressly; the crime includes implied agreements too, as noted by the Supreme Court in Esher Singh v. State of Andhra Pradesh (2004). Obtaining evidence to prove the agreement, especially when made implicitly, is very difficult in most criminal conspiracies, as secrecy is maintained in almost all cases. Mostly, direct evidence will not be available. How, when and where the conspiracy took place and other aspects relating to it are just matters of inference, as that cannot happen in public or open areas. To demonstrate the conspiracy by parties, the prosecution has no choice but to prove surrounding circumstances, such as acts, statements and conduct of the parties, that occur before, during or after the alleged incident, from which the fact can be inferred. Such inference is possible only when those circumstances are not capable of reasonable explanation.
Also, in the case of Dr. Satyavir Singh v. State of Uttar Pradesh (2016), the Supreme Court ruled that mere inferences cannot prove criminal conspiracy; rather, those inferences must always be supported with some evidence as mere suspicion cannot make the conspiracy evident. On recognising this fact, the law allows the submission of any cogent evidence, either direct or circumstantial, in cases under Section 120A of the IPC. Therefore, the court will approve considering circumstantial evidence for the purpose of arriving at the finding as to whether the offence of criminal conspiracy has been committed or not. But the prosecution should prove such circumstances by which the court can conclude the criminal conspiracy among them and remove any doubts of innocence associated with them.
Besides this, another noteworthy legal rule is that the courts, while dealing with Section 120A and 120B cases, should take into consideration the cumulative effect of proven circumstances instead of an isolated approach. This means that the series of circumstances provided by the prosecution before the court should have a cumulative effect i.e., linked to one another rather than being isolated. Such circumstances provided by the prosecution shall be conscious and without ambiguity that those are in furtherance of the agreement among the alleged parties to the conspiracy. Additionally, each circumstance that was presented before the court should be proved beyond a reasonable doubt.
On the other hand, where the circumstantial evidence was lacking, incomplete or inaccurate, substantive evidence can be submitted to the court to prove the meeting of minds in the criminal conspiracy. This was stated by the Supreme Court in the case of Esher Singh v. State of Andhra Pradesh (2004).
The court requires the prosecution to prove that the intentions of one party regarding the commission of a crime have been transmitted or shared with another person or persons to punish the offender under Section 120B of the IPC. A similar stipulation was made out by the Supreme Court, in the Esher Singh case (2004), stating: “The evidence as to transmission of thoughts sharing the unlawful design may be sufficient.” In this case, it is also noted that evidence shall clearly establish that all the above-stated essential elements are closely connected. That is, the illegal means that the accused persons adopted and their illegal acts shall be in pursuance of the conspiracy they agreed upon. Only then the prosecution can successfully prove criminal conspiracy and punish the offenders under Section 120B of the IPC.
The doctrine of agency in a criminal conspiracy
It is said that the criminal conspiracy is a partnership in crime because every member involved is a joint and mutual agent to each other for the common purpose, i.e., execution of the conspired crime. By this doctrine of agency, the law contemplates that the act of one of the members in the conspiracy is deemed as the act by each of them, due to all members being equally liable. The said acts done by one person not only include those agreed by all members in the common plan but also include those which became incidental, collateral and necessary to add for the accomplishment of the common purpose.
Unlike other crimes under the IPC, criminal conspiracy can be proved by providing hearsay evidence, which means any judicial statements made by one of the conspirators against the other co-conspirators. Despite its reliability, it can be admissible in the conspiracy proceedings. In Van Riper v. United States (1926), Elucidating this rule, Judge Learned Hand stated: “Such declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime. When men enter into an agreement for an unlawful end, they become ad hoc agents for one another, and have made a partnership in crime. What one does according to their common purpose, all do, and as declarations may be such acts, they are competent against all.” Therefore, all parties to a crime are punished under the theory of agency for the declarations and implementations made by their co-conspirators. But the liability of acts done by one conspirator is not imposed on other co-conspirators if the conspiracy is terminated by will of the parties, or frustrated by necessity or choice.
Moreover, there is a doctrine of innocent agency, where the offender is liable for the crime committed by his agent, who unintentionally and unknowingly committed it on instructions of his principal, although he/ she has not actively participated in the commission of the said crime. This doctrine is applicable in the case of criminal conspiracy, as the active participation of each member is not required to punish him/ her. The non-requirement of active participation is discussed clearly in the later part of the article.
Section 10 of the Indian Evidence Act, 1872
In India, Section 10 of the Indian Evidence Act, 1872 introduced the doctrine of agency and its various conditions that have to be fulfilled for proving criminal conspiracy. Those conditions are as follows:
- The prosecution should submit prima facie evidence so that the court can make out that the members involved in the conspiracy are two or more persons.
- After signifying an intention by a person among them, if he or any other members expressly stated, written, or impliedly acted concerning their common intention, then such expression or action shall be constituted as evidence against the other.
- Such evidence shall only be used against a co-conspirator and not in his favour.
To learn more about the admissibility of statements of co-conspirators, click here.
Punishment for the offence of criminal conspiracy under Section 120B of the IPC
In 1862, when the IPC came into force, Sections 120A and 120B were not codified i.e., criminal conspiracy was not an offence per se under the IPC then, except Section 121A which deals with conspiracy to commit offences punishable under this Section of the IPC.
As previously mentioned, the punishment for criminal conspiracy is prescribed in Section 120B of the IPC. By reading this provision, we can infer that punishment for criminal conspiracy is the same punishment as for the act of abetting an offence. The severity of punishment changes depending on the nature of the offence. If the conspirators agree to commit an offence whose punishment is either death, life imprisonment, or rigorous imprisonment for a period of two years or more, then the punishment would be more severe. If the agreement in question is to commit an offence, which is less severe i.e., punishment for the offence is less than the aforementioned punishments, then the punishment awarded will be less.
The Supreme Court in State of Madhya Pradesh v. Sheetla Sahai and Ors. (2009) made a noteworthy statement that a conspiracy to commit an offence is altogether an independent offence and is punished separately. This means that, when the conspirators actually committed the offence which is punishable under the IPC as per their planning, they will be punished for both conspiracy as well as for the commission of the offence, according to the provisions of the IPC. Therefore, once the offence of criminal conspiracy has been proved in a court of law, all the parties to that conspiracy will be punished under Section 120B of the IPC, irrespective of their commission of the offence and conviction for the same. Similarly, even though he is acquitted of the charge of criminal conspiracy, a person can be convicted for the commission of a crime. Therefore, criminal conspiracy is a substantive offence.
Requirements for court cognizance
Section 120B of the IPC has to be read with Section 196(1A)(b) of the CrPC which mandates the previous sanction of either the Central Government, State Government or the District Magistrate for the court to take cognizance of the case of criminal conspiracy. In case of criminal conspiracy to commit an offence which is punishable with less than the period of two years, the court will take cognizance and initiate the proceedings in this regard only if the State Government or the District Magistrate formally expressed their consent for it in writing as stipulated under Section 196(2) of the CrPC. However, if the provision of Section 195 of the CrPC is applied, then consent by such authorities is not required.
Effect of acquittal of all accused persons except one
If three accused persons are involved in criminal conspiracy and two of them were acquitted of Section 120B charges, the remaining person cannot be punished for criminal conspiracy under Section 120B of the IPC because one cannot conspire with himself. Therefore, if all but one were acquitted of criminal conspiracy, then the charges against the left out person will also be removed by the court as parties in this crime shall be at least two persons. A similar observation was drawn in the case of Faguna Kanta Nath v. the State of Assam (1959).
If the complainant wants to punish someone but cannot prove any agreement between the main accused and other accused persons or the other persons obtained acquittal from the court, he or she can lodge a complaint under Section 34 of the IPC, which has no substantial difference with Section 120A. Section 34 deals with the acts done by several people in furtherance of common intention. The major difference between the said provisions is that, under Section 34, a single person can also be punished because each party will be liable for the others’ acts.
Effect of a lesser punishment on one of the convicts
If one of the convicts under Section 120B of the IPC is punished with a fine, not a jail term, then other convicts should also not be punished with imprisonment. The best example of this rule is in the case of Chandrakant Ratilal Mehta v. the State of Maharashtra (1993). In this case, the Trial Court imposed only a fine on the principal convict in the case of criminal conspiracy, whereas other convicts were sentenced to imprisonment. In the present case, the Bombay High Court held that the considerable award of imprisonment to other accused was unjustifiable. On this ground, they were removed from such a sentence and made liable to pay only a fine.
Communication and acquaintance with all conspirators are not necessary
To punish guilty persons under Section 120B, it is not important that all parties who are involved in a criminal conspiracy are known to each other and everyone has access to communication with any of them. Even the detailed stages of the execution of the conspiracy are not vital to be known to all members of the conspiracy. The same was asserted by the Supreme Court in Chaman Lal and Ors. v. State of Punjab and Anr. (2009). There may be a common leader who communicates or passes commands to succeed in the commission of a crime which they are planning. Thus, consensus among parties is important, not communication and acquaintance. For example, if a wife knows that her husband conspired to commit a crime with a few members and agreed to help him in the conspiracy, she will be guilty under Section 120B of the IPC, although the other conspirators except her husband are unknown to her.
Contrarily, if the accused does not know the main object or purpose of the conspiracy, then he or she is not liable under Section 120B of the IPC, as knowledge of the main object is one of the essential as held by the Supreme Court in Mohmed Amin @ Amin Choteli Rahim Miyan Shaikh & Anr. v. C.B.I through its Director (2008).
Active participation is not required
The Supreme Court, in K. R. Purushothaman v. State of Kerala (2006), mentioned that, to punish someone under Section 120B of the IPC, such a person need not take part from the beginning to the end of the whole plan that was conspired by them. Some of the parties may even give up the risk in the middle. If a few conspirators did not actively indulge in the commission of the offence or do a legal act with illegal methods but tacitly agreed to the central conspiracy and did not give up the risk by quitting, they will obtain a conviction from the court and be punished under Section 120B of the IPC. As already stated, the rationale behind this legal principle is to punish those who support or abet someone to commit conspiratorial acts but do not actively participate, as their encouragement leads to the crime commission.
An exception to the criminal conspiracy
We understood the essential elements that constitute the offence of criminal conspiracy. In case of overt acts by all parties to the conspiracy, there is a clear case and it is easy to prove the criminal conspiracy among them. However, such overt acts must be done to achieve the object for which the convicts conspired.
Here comes an important question, what if a person helps a conspirator after the commission of the crime which is the main purpose of their conspiracy? Such a person may give shelter to the conspirator or absconder after the purpose is accomplished with or without knowing it. In these scenarios. At first, they look like wrongdoers as they are giving some kind of assistance to them. However, the law does not punish such people under Section 120B of the IPC because any subsequent act by a person done after the commission of a conspired crime in time, no matter how unlawful it is, will not be said to be a part to such criminal conspiracy.
Important case laws
State of Tamil Nadu v. Nalini (1999)
In the case of the State of Tamil Nadu through the Superintendent of Police, CBI, SIT v. Nalini and 25 Others (1999), the conspirators of the assassination of Rajiv Gandhi were convicted under Section 120B read with Section 302 of the IPC. However, Robert Payas, one of the accused persons, has been acquitted as there is no proof of his agreement with the main object of the conspiracy. He was suspected to have a strong association with the members of the said conspiracy. In this way, the Supreme Court of India gave paramount importance to the existence of an agreement, mere suspicion, however strong it may be, is not enough to convict an accused. In this case, the Court also provided the broad principles of Sections 120A and 120B.
Subramanian Swamy v. A. Raja (2012)
In the case, Subramanian Swamy v. A. Raja (2012), popularly known as the “2G Spectrum case”, the Supreme Court of India stated that the wrong decisions or improper approach or management by the government, including ministers or the Prime Minister, shall not be a criminal conspiracy. Thus, the Court set aside the complaint stating a lack of conclusive proof of criminal conspiracy.
State of Karnataka v. Selvi J. Jayalalitha and Ors. (2017)
In the case of State of Karnataka v. Selvi J Jayalalitha and Ors. (2017), the practice of corruption by a few politically influential persons is also regarded as criminal conspiracy. Here, one of the accused persons, Selvi J. Jayalalitha (A1), who was the then Chief Minister of Tamil Nadu, acquired properties worth Rs. 66.65 crores during her first tenure, i.e., 1991-1996. The Court observed that the free flow of money from one account to another is a clear establishment of the presence of criminal conspiracy between accused persons. Besides this, there are various other pieces of evidence, such as firms on those names the assets are registered are incorporated on a single day, and all other members of the conspiracy cohabited in the house of A1, among other evidence, proved beyond reasonable doubt that the accused persons committed the offence under Section 120A of the IPC.
Raju Manjhi v. the State of Bihar (2018)
In this case, Raju Manjhi v. the State of Bihar (2018), the prosecution provided the Court with the confessional statements of the co-accused before the police officer as the sole evidence to convict Munna Manjhi. As a general rule, such confessions made by the accused are not admissible in the court and have no evidentiary value. But, the prosecution requested the court to examine the confession in light of Section 27 of the Indian Evidence Act, 1872 by virtue of which the confessions are admissible in the court if the received information is satisfied with a subsequent recovery. The Supreme Court took Section 27 into consideration and examined all the recoveries and findings provided by the prosecution. By these findings, it was proved beyond reasonable doubt that the accused is guilty of criminal conspiracy and be punished under Section 120B of the IPC.
Parveen @ Sonu v. the State of Haryana (2021)
The facts of the case, Parveen @ Sonu v. the State of Haryana (2021), are four young boys conspiring to help the four accused persons who are in the custody of police and travelling in a train to appear before the court. While executing the plan, it was alleged that one of them fired upon a police officer and another person threw chilli powder on his eyes. The Sessions Court convicted all the accused persons. The High Court of Punjab and Haryana also upheld the conviction of the Trial Court, which relied solely on medical reports and rejected the appeal. The present case before the Supreme Court dealt only with the validity of the conviction of the third accused, Parveen @ Sonu. The prosecution contended that, except for vague statements made by the witnesses, there is no valid evidence that the appellant is a member of the said conspiracy. In its judgement, the Supreme Court noted that the confessional statements of co-accused would not be valid evidence, unless there is corroborative evidence and acquitted the appellant.
Recommendations by the Law Commission of India
The 42nd report of the Law Commission of India recommended a few corrections to Section 120B of the IPC. More specifically, it found that provision, Section 120B(1) of the IPC, is creating confusion as it said the punishment for criminal conspiracy to commit an offence, which is punishable with death, life imprisonment or rigorous imprisonment for two years or more, is the same as that of abetment for commission of such agreed offence. Because of such wordings, the court should refer to the provisions of abetment and its punishment to determine the amount of punishment in case of criminal conspiracy. This creates confusion due to the complex procedure of the determination of punishment. Recognising this complicity, the Law Commission of India advised the legislature of India to amend this provision in such a way that the punishment is fixed in Section 120B(1) itself, without referring to another section.
Furthermore, the Law Commission suggested amending the whole of Section 120B. The changes it recommended are:
- If the parties to the criminal conspiracies agree to commit an offence and even act in furtherance of it, such offenders shall be punished with the same punishment prescribed for the offence they agreed to commit.
- If the parties to the criminal conspiracies agree to commit an offence but do not do any act in furtherance of the intended crime, such conspirators shall be punished up to half of the maximum punishment or fine prescribed for the offence they agreed to commit. The court can also punish with both imprisonment and fine.
Criminal conspiracy is a serious crime and is severely punished accordingly. There are many essential requirements to establish a case of criminal conspiracy in a court of law. But, as it is hatched secretly, there is a relaxation in submitting evidence to prove the case in a court of law. The prosecution is allowed to present circumstantial evidence to establish the offence of criminal conspiracy and based on this, the court can punish accused persons under Section 120B of the IPC.
Also, every party involved in the criminal conspiracy is treated equally in terms of the sentence awarded, irrespective of their intensity of motives, how much work they undertook, or knowledge about the whole plan, among other things. However, merely helping or giving opinions without any idea of a conspiracy will not make someone a conspirator and held liable under this provision. Thus, the court should take all possible measures while examining the evidence presented by the prosecution to avoid any unfairness and injustice to the accused persons, especially those who are innocent.
Frequently Asked Questions (FAQs)
What are the differences between criminal conspiracy and abetment?
There are a lot of differences between the offences of criminal conspiracy and abetment, even if those look similar at first. The following are the differences between them.
- Criminal conspiracy is defined under Section 120A and punished under Section 120B of the IPC, while abetment of an illegal act is defined under Section 107 and punished under a range of provisions, namely Sections 107, 108, 109, 110, 111, 112, 113, 114, 115, 116 and 117 based on the severity and nature of the offence to which the offender abetted.
- The offence of abetment can be constituted if there is an element of conspiracy in the act of the offender, according to the second clause of Section 107. Thus, conspiracy may be one of the ingredients of the offence of abetment. Whereas, an act of abetment is not one of the essential elements to constitute criminal conspiracy.
- To make someone guilty under Section 120B for the commission of the offence of criminal conspiracy, an intentional agreement to commit an illegal act is enough. But, in abetment, the commission of some illegal act or omission as per their conspiracy is required.
- Conspiracy is a more severe and broader offence than abetment. Due to this, we can see the variance in the punishment as well.
Nevertheless, there is little overlap between the offences of criminal conspiracy and abetment. However, the legislature felt not necessary to amend the provisions relating to abetment, at the time of the insertion of Chapter V-A in 1913.
To know more about the difference between abetment and criminal conspiracy, click here.
How is abetment by conspiracy affected after Chapter V-A is inserted?
Practically, abetment of an offence by conspiracy is of little use after Chapter V-A dealing with the offence of criminal conspiracy, is added to the Indian Penal Code, 1860. Hence, the abetment by conspiracy is no longer treated as a criminal law concept.
In addition to this, in English common law, the element of conspiracy is not at all an integral part of the crime of abetment, unlike the Indian Penal Code. Based on its findings on the practical scenario of abetment by conspiracy, the Law Commission of India in its 42nd report recommended removing the second clause of Section 107, which explains the offence of abetment by way of conspiring, and all other such references made in relation to this offence. It further provided reasoning that such co-existence of two similar wrongs in the same Penal Code will lead to ambiguity while interpreting and applying by courts.
Can a company be liable under Section 120B of the IPC?
A company registered under the Companies Act, 2013 is treated as an individual and, hence, can be punished for any offence, either under IPC or any other statutory enactments, once proven that it was committed. Although the company is an artificial person, still it can be made liable for its commission of crimes which includes the element of mens rea. The imputation of a guilty mind by the company is done based on the principle of the ‘alter ego’ of the company.
A company is convicted for the criminal acts done by a person or body of persons only when such affairs are in relation to the business of the company, otherwise, the company escapes criminal liability. Thus, the liability of the company under Section 120B of the IPC is determined by ascertaining the extent of control of the person or body of persons. If the degree of their control is so powerful that it is apparent the company is functioning and acting through them, then the company is made liable for the criminal conspiracy of the person or body of persons. The famous authority in this regard is Iridium India Telecom Ltd. v. Motorola Incorporated and Ors. (2010).
Can a person who joined the conspiracy much later be punished under Section 120B of the IPC?
Not all accused persons need to be present from the very beginning when they held the first meeting and conspired. If a person became a part of the conspiracy at a later point in time, it would also be sufficient to treat him or her as one of the conspirators and charge with Section 120A of the IPC. If the criminal conspiracy takes place among all of them and the new person’s guilt of willingly agreeing to their common purpose is proved in court, he or she shall be punished under Section 120B of the IPC.
But the additional requisite to make the new person liable is he or she should join the conspiracy before the commission of the offence they planned for, not after. Furthermore, just because he or she joined the conspiracy in the middle of the execution of the agreed plan will neither result in the formation of a new conspiracy nor alter the current position of other conspirators.
Whether agreement to commit corruption is punishable under Section 120B of the IPC?
To make a group of persons punishable under Section 120B of the IPC, they should have committed an unlawful act. As the practice of corruption by the public servant is an unlawful act as per the Prevention of Corruption Act, 1988, the accused persons will be punished as the agreement to an unlawful act such as corruption is a criminal conspiracy, provided all other essential elements should be proved before the court by the Central Bureau of Investigation (CBI) or complainant, as the case may be. However, one among the accused persons must be a public servant. The Supreme Court also held, in the State by S.P. through the SPE CBI v. Uttamchand Bohra (2021), that a person, who is not a public servant cannot be charged with Section 13 of the Prevention of Corruption Act, 1988 and acquitted the respondent of this case from Section 120B charges.
- “The Indian Penal Code” authored by Ratanlal and Dhirajlal, 36th Edition, 2022.