Criminal Conspiracy under Section 120B IPC

An Exposition of Criminal Conspiracy under Section 120B of the Indian Penal Code: A Judicial and Statutory Analysis

Introduction

The offence of criminal conspiracy, as defined under Section 120A and punished under Section 120B of the Indian Penal Code, 1860 (IPC), represents a critical facet of Indian criminal law. It addresses the inchoate crime of agreeing to commit an illegal act or a legal act by illegal means, thereby enabling law enforcement to intervene before the contemplated crime is consummated. This provision is frequently invoked in cases involving organized crime, terrorism, economic offences, and other complex criminal enterprises. This article endeavors to provide a comprehensive analysis of Section 120B IPC, delving into its statutory framework, judicial interpretations, evidentiary requirements, and its interplay with other penal provisions, drawing extensively from landmark precedents and relevant legal principles in India.

Defining Criminal Conspiracy: Section 120A IPC

Section 120B prescribes the punishment for criminal conspiracy, the definition of which is enshrined in Section 120A IPC. Understanding Section 120A is thus paramount to comprehending the scope of Section 120B. Section 120A IPC states:[17, para 45]

"120A. Definition of criminal conspiracy.—When two or more persons agree to do, or cause to be done,— (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.—It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."

The Supreme Court in Major E.G Barsay v. State Of Bombay, as cited in Raj Kumar Jain Petitioner v. Central Bureau Of Investigation, pithily noted that "The gist of the offence is an agreement to break the law."[16, para 17] The core elements of criminal conspiracy under Section 120A are:

  • An agreement between two or more persons.
  • 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 proviso to Section 120A introduces a significant qualification: if the agreement is to commit an act other than an "offence," then some overt act, besides the agreement, must be done by one or more parties in pursuance of the conspiracy.[12] However, if the agreement is to commit an offence, the mere agreement itself is sufficient to constitute criminal conspiracy.[17, para 45] The explanation clarifies that the illegality of the act can be either the ultimate aim or merely incidental to the primary objective of the agreement.[12] The Orissa High Court in Saroj Kumar Sahoo v. State Of Orissa And Another Opp. Parties. reiterated that the requirements of Section 120A must be met before a person can be convicted under Section 120B.[11]

The Ambit and Punishment under Section 120B IPC

Section 120B IPC delineates the punishment for criminal conspiracy and is structured into two parts:[13]

"120-B. Punishment of criminal conspiracy.—(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."

Clause (1) deals with conspiracies to commit serious offences, i.e., those punishable with death, imprisonment for life, or rigorous imprisonment for two years or more. In such cases, a conspirator is punished as if they had abetted the conspired offence.[15] This implies that the punishment can be as severe as that for the substantive offence itself. Clause (2) applies to conspiracies to commit less serious offences or illegal acts not amounting to offences. The punishment under this clause is imprisonment up to six months, or a fine, or both.[9]

The Patna High Court in Pratik Sinha v. State Of Bihar clarified the cognizable nature of offences under Section 120B, noting that Clause (1) generally deals with cognizable offences (if the conspired offence is cognizable and serious), while Clause (2) typically pertains to non-cognizable offences, for which an FIR without a Magistrate's permission may not be permissible.[9]

Judicial Interpretation and Evidentiary Requirements

The judiciary has played a crucial role in elaborating the contours of criminal conspiracy, particularly concerning the nature of agreement and the evidence required for conviction.

Nature of Agreement

The sine qua non of conspiracy is the "agreement." As held in Firozuddin Basheeruddin And Others v. State Of Kerala, direct evidence of such an agreement is often elusive, as conspiracies are typically hatched in secrecy.[6] Therefore, the existence of an agreement can be inferred from the acts or conduct of the parties, or other circumstantial evidence.[6] The Supreme Court in State Of Maharashtra And Others v. Som Nath Thapa And Others emphasized that the agreement can be express or implied, or partly express and partly implied.[4] It is not necessary that all conspirators should join in the scheme from the very first; some may join later.[4]

Proof of Conspiracy

Given the clandestine nature of conspiracies, direct proof is seldom available. Courts have consistently held that conspiracy can be proved by circumstantial evidence.[2; 6] In Sardar Sardul Singh Caveeshar v. State Of Maharashtra, the Supreme Court noted that conspiracy can be established through direct or circumstantial evidence.[2] The acts and declarations of the co-conspirators, both before and after the formation of the conspiracy, can be relevant. The evidence must show a common plan and a meeting of minds to achieve the illegal object.[6]

In P.K Narayanan v. State Of Kerala, the Supreme Court overturned convictions for conspiracy and murder due to insufficient and unreliable evidence, stressing that motive alone does not establish conspiracy and that circumstantial evidence must be unequivocal.[8] Conversely, in Yakub Abdul Razak Memon v. State Of Maharashtra, concerning the 1993 Bombay bombings, the liability of accused for their involvement in the extensive conspiracy was upheld based on the evidence presented.[1]

Knowledge and Intent (Mens Rea)

Mens rea is a crucial element. There must be an intention to agree and an intention to carry out the unlawful object. In State Of Maharashtra And Others v. Som Nath Thapa And Others, the Supreme Court highlighted that knowledge of the agreement and the intent to further the illegal act are pivotal.[4] Mere knowledge, acquiescence, or approval of an act, without an agreement to cooperate, is not enough to constitute one a party to a conspiracy.[4] The Delhi High Court in Sanjay Pandey v. Directorate Of Enforcement observed that the criminal intent, i.e., an agreement to do an illegal act as defined under Section 120A IPC, must be established.[10]

Section 10 of the Indian Evidence Act, 1872

Section 10 of the Indian Evidence Act, 1872, is a significant provision in conspiracy trials. It provides:[15]

"10. Things said or done by conspirator in reference to common design. 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 persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."

This section allows acts or statements of one conspirator to be used as evidence against other co-conspirators, provided there is a reasonable ground to believe that a conspiracy existed and the act or statement was made in reference to their common intention.[2; 7; 18] The Supreme Court in Kehar Singh And Others v. State (Delhi Administration) . (1988) extensively discussed the application of Section 10 of the Evidence Act in proving conspiracy.[7; 17]

Liability of Conspirators

Once a conspiracy is established, each conspirator is liable for the acts committed by other co-conspirators in furtherance of the common object, even if they were not directly involved in those specific acts.[6] As observed in Raj Kumar Jain Petitioner v. Central Bureau Of Investigation, it is not necessary that all parties should agree to do a single illegal act; the conspiracy may comprise the commission of a number of acts.[16] Even if some steps are resorted to by one or two conspirators without the knowledge of others, it will not affect the culpability of those others when they are associated with the object of the conspiracy.[16]

Analysis of Key Precedents

Several landmark judgments have shaped the jurisprudence on criminal conspiracy in India.

In Kehar Singh And Others v. State (Delhi Administration) . (1988), the Supreme Court meticulously examined the scope of Sections 120A and 120B IPC and the evidentiary value of statements under Section 10 of the Evidence Act in the context of the assassination of Prime Minister Indira Gandhi. The Court emphasized that the essence of conspiracy lies in the agreement.[7; 17]

State Of Maharashtra And Others v. Som Nath Thapa And Others (1996) is another seminal case where the Supreme Court, dealing with the aftermath of the 1993 Bombay bomb blasts, elaborated on the ingredients of criminal conspiracy, the necessity of knowledge and intent, and the standards for framing charges.[4] The Court clarified that for framing charges, a prima facie case indicating a reasonable likelihood of the accused having committed the offence is sufficient.[4]

Firozuddin Basheeruddin And Others v. State Of Kerala . (2001) reinforced the principle that conspiracy can be established through circumstantial evidence and highlighted the concepts of unity of purpose and joint liability of conspirators.[6] The Court cited Noor Mohammad Mohd. Yusuf Momin v. State Of Maharashtra to support the reliance on circumstantial evidence.[6]

The early case of Sardar Sardul Singh Caveeshar v. State Of Maharashtra (1963) laid down foundational principles regarding the definition of conspiracy, the admissibility of evidence under Section 10 of the Evidence Act, and the distinction between separate conspiracies.[2]

Procedural Aspects and Related Offences

Framing of Charges

For framing a charge under Section 120B, the court must be satisfied that a prima facie case exists. As held in State Of Maharashtra And Others v. Som Nath Thapa And Others, the court is not required to conduct a detailed evaluation of evidence at this stage but must ascertain if the materials on record disclose a grave suspicion against the accused.[4] This principle was also touched upon in Raj Kumar Jain Petitioner v. Central Bureau Of Investigation.[16]

Sanction for Prosecution

Historically, for certain types of conspiracies, sanction for prosecution was required. For instance, Section 196-A of the (old) Code of Criminal Procedure, as discussed in The State Of Andhra Pradesh v. T. Rajagopalachari And Others (1971), stipulated requirements for consent from the State Government or designated authorities for initiating proceedings for criminal conspiracy in specific cases, such as those involving non-cognizable offences or offences against the State.[14] Current provisions under Section 196 of the Code of Criminal Procedure, 1973, also mandate sanction for prosecution of criminal conspiracy to commit offences against the State, among others.

Conspiracy with other IPC/Special Law Offences

Section 120B is often invoked in conjunction with substantive offences under the IPC or special statutes. For example, it has been applied in cases involving:

  • Terrorism and Disruptive Activities (Prevention) Act, 1987 (TADA)[1; 4; 19]
  • Prevention of Terrorism Act, 2002 (POTA)[5]
  • Prevention of Money Laundering Act, 2002 (PMLA)[10]
  • Prevention of Corruption Act, 1988[13; 22]
  • Offences like murder, rape, dacoity, and cheating under the IPC.[23; 25; 26]
The case of State (Nct Of Delhi) v. Navjot Sandhu Alias Afsan Guru . (2005), concerning the Parliament attack, saw convictions under Section 120B IPC read with provisions of POTA and IPC.[5] Similarly, Yakub Abdul Razak Memon involved charges under Section 120B IPC along with TADA.[1] In Hasanbhai Valibhai Qureshi v. State Of Gujarat And Others, the deletion of Section 120B IPC from the FIR by the police became a subject of judicial scrutiny concerning the fairness of the investigation.[21] The failure to establish a conspiracy charge, as seen in Shabad Pulla Reddy And Others v. State Of A.P ., can significantly alter the outcome of a trial.[20]

Acquittal of Co-accused

The acquittal of some alleged co-conspirators can impact the charge of conspiracy against the remaining accused. In THE INSPECTOR OF POLICE v. SMT.ANITHA ANAND, the Madras High Court, relying on the Supreme Court's decision in TOPANDAS Vs. The State of Bombay, noted the argument that if one accused is acquitted of the charge under Section 120B IPC, the co-accused should also be acquitted.[24] This principle is generally applied when the acquittal of one accused undermines the very existence of the agreement among the minimum number of persons required for a conspiracy (i.e., two). If the evidence disproves the conspiracy itself, or if only two are charged and one is acquitted, the other cannot be convicted. However, if multiple conspirators are involved, the acquittal of some for lack of specific evidence against them does not automatically lead to the acquittal of others against whom the conspiracy is proved.

Conclusion

Section 120B of the Indian Penal Code, read with Section 120A, provides a potent legal tool to combat concerted criminal activities. The judiciary, through consistent interpretation, has clarified that the essence of criminal conspiracy lies in the unlawful agreement, which can be proved by direct or, more commonly, circumstantial evidence. The requirement of mens rea, in the form of knowledge and intent, is indispensable. While Section 10 of the Evidence Act aids in proving conspiracy, courts exercise caution in its application to ensure that the accused are not convicted merely on association without proof of active participation in the conspiratorial agreement.

The jurisprudence surrounding Section 120B IPC reflects a balance between the need to penalize agreements to commit crimes and the imperative to safeguard individuals from wrongful conviction based on tenuous evidence. The nuanced understanding of its elements, evidentiary standards, and procedural safeguards, as evolved by Indian courts, continues to guide the prosecution and adjudication of complex criminal conspiracies, underscoring its enduring relevance in the Indian criminal justice system.

References