Sections 120-A and 120-B of the Indian Penal Code: Contemporary Jurisprudential Perspectives

Sections 120-A and 120-B of the Indian Penal Code: Contemporary Jurisprudential Perspectives

Introduction

Criminal conspiracy, codified under Sections 120-A and 120-B of the Indian Penal Code, 1860 (“IPC”), permeates an expansive range of substantive offences from white-collar crimes to terrorism. The Supreme Court and several High Courts have repeatedly grappled with (i) the threshold question of what constitutes a legally cognisable “agreement”, (ii) the evidentiary rules applicable to conspiratorial statements, and (iii) the distinctive sentencing logic that accompanies such collective criminality. This article critically analyses the modern trajectory of Indian conspiracy law, drawing upon leading authorities—State of Maharashtra v. Som Nath Thapa[1], Yakub Abdul Razak Memon v. State of Maharashtra[2], State (NCT of Delhi) v. Navjot Sandhu[3], Kehar Singh v. State (Delhi Administration)[4], Ram Narayan Popli v. CBI[5] and allied precedents—to underline doctrinal consistencies, tensions, and emerging challenges.

Statutory Framework

Definition (Section 120-A IPC)

Section 120-A criminalises an agreement between two or more persons (a) to commit an illegal act, or (b) to commit a legal act by illegal means. The proviso requires an overt act only when the conspiracy is not to commit a substantive offence.[6]

Punishment (Section 120-B IPC)

Section 120-B bifurcates punishment: conspiracies to commit offences punishable with death, life imprisonment or ≥ two years’ rigorous imprisonment attract the same penalty as abetment of that offence; other conspiracies carry up to six months’ imprisonment, fine, or both.

Evolution of Doctrinal Elements

1. Agreement: The Gist of the Offence

In Som Nath Thapa, the Supreme Court affirmed that “knowledge and intent to further the unlawful design” constitute the “pivotal elements” of conspiracy; mere association is insufficient.[1] Earlier, V.C. Shukla[7] mandated that circumstantial evidence must create an “irresistible inference” of such agreement. The courts have thus endorsed a low threshold for proof of agreement—direct proof being rare—yet insist that concurrent inferences cumulatively manifest the conspiratorial design.

2. Overt Act: Necessary or Redundant?

Post-amendment jurisprudence, influenced by English common law principles explicitly imported via the 1913 Amendment Bill, treats the overt-act requirement as dispensable when the conspiracy is to commit a substantive offence.[8] The Court in Kehar Singh acknowledged that “the very agreement is an offence and is punishable”, relegating overt acts to evidentiary, not constitutive, relevance.[4]

3. Continuing Nature of Conspiracy

A conspiracy subsists “wherever and whenever” any participant acts in furtherance of the design (K. Hashim v. State of T.N.).[9] This continuity doctrine legitimises venue flexibility and extends limitation periods, yet raises proportionality concerns when peripheral actors are ensnared long after the principal design appears dormant.

Evidentiary Matrix

1. Section 10, Indian Evidence Act

Statements, acts, and writings of co-conspirators are admissible against all conspirators once prima facie evidence of conspiracy exists. The TADA and POTA jurisprudence elaborated on this principle but simultaneously heightened due-process anxieties.

2. Confessional Statements under Special Statutes

  • Yakub Memon held that confessions recorded under Section 15 TADA are admissible inter se conspirators, subject to Section 30 Evidence Act safeguards.[2]
  • In Navjot Sandhu, the Court rejected the “agency theory” that would have rendered co-accused automatically liable on confessional spill-over, emphasising corroboration.[3]

The divergence underscores an unresolved tension: national-security statutes expand admissibility while constitutional criminal procedure seeks restraint.

3. Standard of Proof at Charge-Framing

Som Nath Thapa clarified that a prima facie case—material pointing to “a reasonable possibility” of guilt—suffices to frame a conspiracy charge.[1] Subsequent High Court practice (Raj Kumar Jain v. CBI[10]) reflects judicial reluctance to usurp the trial court’s fact-finding prerogative at this incipient stage.

Interface with Allied Offence Structures

1. Conspiracy v. Abetment (Section 109 IPC)

While both involve secondary liability, abetment by conspiracy under Section 107 requires an act or illegal omission in pursuance, whereas Section 120-A punishes the bare agreement.[3] The Supreme Court in Somasundaram v. State reiterated that acquittal under Section 120-B does not exonerate an accused from abetment charges.[11]

2. Special Legislations (TADA & POTA)

Both TADA and POTA overlay conspiracy norms with special procedural provisions—Section 15 TADA and Section 32 POTA—permitting custodial confessions. Yet, the Supreme Court has cautiously balanced these with Article 21 guarantees, striking down convictions where procedural mandates (e.g., magistrate certification) were flouted (Navjot Sandhu).

Sentencing Philosophy

Conspiracy charges often travel with principal offences that attract capital sentences (Kehar Singh; Yakub Memon). The “rarest-of-rare” doctrine, formulated in Bachan Singh and applied in conspiracy contexts, predicates death penalty justification on (i) seriousness of the substantive offence, and (ii) the conspirator’s degree of participation. The Supreme Court’s nuanced differentiation—commuting sentences of marginal conspirators (Nalini[12]) while upholding others—reveals a trend towards individuated sentencing even within collective liability structures.

Procedural Safeguards and Sanction

Prior approval under Section 196-A CrPC (now Section 196(2)) remains a jurisdictional prerequisite for prosecuting conspiracies to commit non-cognisable offences. The historic Mallimoggala Venkataramiah[13] decision, though pre-constitutional, still cautions Magistrates against bypassing sanction—lest the prosecution be vitiated for want of jurisdiction.

Contemporary Challenges

  • Digital Conspiracies: Encrypted communications complicate attribution, resurrecting debates on whether “passive reading” of a group chat equates to agreement.
  • Trans-national Designs: The principle in Ajay Aggarwal v. Union of India permits prosecution even where all overt acts occur abroad, provided the conspiracy impacts India’s security or economy.
  • Overlap with Organised Crime Statutes: State-specific laws (e.g., MCOCA) embed IPC conspiracy but incorporate enhanced penalties, raising double-jeopardy concerns.

Conclusion

Indian conspiracy jurisprudence demonstrates a delicate equilibrium: the State’s imperative to deter coordinated illegality versus constitutional fidelity to due process. Sections 120-A and 120-B remain potent prosecutorial tools, but their expansive reach necessitates rigorous judicial scrutiny. Future reforms should (i) codify clearer evidentiary thresholds for digital communications, (ii) harmonise special-statute confession rules with Evidence Act principles, and (iii) refine sentencing guidelines to reflect differentiated culpability within conspiratorial hierarchies.

Footnotes

  1. State of Maharashtra v. Som Nath Thapa & Ors., (1996) 4 SCC 659.
  2. Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1.
  3. State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600.
  4. Kehar Singh & Ors. v. State (Delhi Administration), (1988) 3 SCC 609.
  5. Ram Narayan Popli v. Central Bureau of Investigation, (2003) 3 SCC 641.
  6. Indian Penal Code, 1860, s. 120-A proviso.
  7. V.C. Shukla v. State (Delhi Administration), (1980) 2 SCC 665.
  8. Statement of Objects and Reasons, Bill No. 6 of 1913 (Amending Act 8 of 1913).
  9. K. Hashim v. State of Tamil Nadu, (2005) 1 SCC 237.
  10. Raj Kumar Jain v. Central Bureau of Investigation, 2015 SCC OnLine Del 8999.
  11. Somasundaram v. State, (2016) 16 SCC 382.
  12. State through Superintendent of Police, CBI/SIT v. Nalini & Ors., (1999) 5 SCC 253.
  13. Mallimoggala Venkataramiah, 1937 SCC OnLine Mad 200.