Synopsis
1. Introduction
2. Criminal
Conspiracy
3. Punishment
4. Distinguish
criminal conspiracy from the act done in furtherance of common intention
5. Abatement
and conspiracy
Introduction
In criminal law a
combination or confederacy between two or more persons formed for the purpose of committing, by
their joint efforts, some unlawful or criminal act or some act which is
innocent in itself, but becomes unlawful when done by the concerted action of
the conspirators, or for the purpose of using criminal or unlawful means to the
commission of an act not itself unlawful.
Criminal law in some
countries or for some conspiracies may require that at least one overt act must
also have been undertaken in furtherance of that agreement, to constitute an offense.
There is no limit on the number participating in the conspiracy and, in most
countries, no requirement that any steps have been taken to put the plan into
effect (compare attempts which require proximity to the full offence). For the
purposes of concurrence, the actusreus
is a continuing one and parties may join the plot later and incur joint
liability and conspiracy can be charged where the co-conspirators have been
acquitted or cannot be traced
Though conspiracy was
initially considered as only a civil wrong but later on it was brought under
the ambit of criminal law. Conspiracy was not an offence under the Indian Penal
Code until the Criminal Law Amendment Act of 1913 was passed which added the
sections 120 (A) and 120 (B) to the Indian Penal Code which is now equally
applicable in our country
Criminal Conspiracy
According to section
120 (A) of Penal code, 1860 criminal conspiracy means, when two or more persons
agree to do or cause to be done -
1) Any illegal act or
2) An act which is not
illegal by illegal means such an agreement is designed 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.
Scope of the section:
Section 120A is the
penal section. The agreement is the gist of the offence. In order to constitute
a single general conspiracy, there must be a common design and a common
intention of all to work in furtherance to the common design. Each comparator
plays his separate part in one integrated and united effort to achieve common
purpose. Each one is aware that he is a part to play in a general conspiracy
though he may not know all its secrets or the means by which the common purpose
is to be accomplished. The essence of conspiracy is that there should be an
agreement between persons to do one or other of the acts described in the
section. The said-agreement may be proved by direct evidence or may be inferred
from acts and conduct of the parties. There is no difference between mode of
proof of the offence of conspiracy or that of any other offence; it can be
established by direct evidence or by circumstantial evidence.
Ingredients:
The ingredients of this offence of criminal
conspiracy are-
(a) That there must be an agreement between the persons who are alleged
to conspire.
(b)
That the agreement should be-
(i) For doing an illegal act or
(ii) For doing by illegal means an act which may not itself be illegal.
Proof of conspiracy:
(1) Offence can proved
largely from the inferences drawn from acts or illegal omissions committed by
the conspirators in pursuance of common design. AIR 1980 SC 439.
(2) Section 10 of
Evidence Act, 1872, introduces the doctrine of agency in the matter of proof of
conspiracy and if the condition laid down in that section are satisfied,
evidence of an act done by one conspirator is admissible against his
co-conspirators. But the section will come into play only when the court
satisfied that there are reasonable grounds to believe that two or more persons
have conspired together to commit an offence or an actionable wrong. AIR
1974 SC 898.
(3) 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.Mulcachyvs
R, Willes
So long as such a
design rests in intention only it is not indictable. When two agree to carry on
into effect the very plot is an act in itself. The essence of object of
conspiracy is the agreement itself. When the agreement is proved no overt act
in furtherance of the common object of the agreement need to be proved.
(4) In order to convict
an accused for criminal conspiracy under section 120 (A) it has to establish
that the accused had agreed to pursue a course of conduct which he knows
leading to the commission of a crime by one or more persons to the agreement of
that offence. Besides the fact of agreement the necessary means really of the
crime is also required to be established.
According to the definition of criminal conspiracy in section 120 (A)
two or more persons must be parties to such an agreement and one person alone
can never be held guilty of criminal conspiracy for the simple reason that one
cannot conspire with oneself.
Some Leading Cases:
Two or more persons
must be parties to such an agreement and one person alone can never be guilty
of criminal conspiracy for the simple reason that one cannot conspire with
oneself.Topandasvs State of Bombay
Criminal conspiracy between
husband and wife is not an offence under the English law and also where the
English law has been extended.Laila
JhinaMiaji Vs. Queen, 10 DLR 6
Where an offence is
alleged to have been committed by two or more persons the person responsible
for commission of the offence should be charge with substantive offence, while
the person alleged to have abetted it by conspiracy should be charged with the
offence of abetment under section-109.ShamsulHoquevs State, 20 DLR 540
Muhammad
Hadi Husain Mirza (1928) 3 Luck 494- In this case a person was aware of the fact
that a large amount of jewellery had been handed over by a lady to another
person in order that he might deposit it for safe custody in a bank and of the
fact that person had pawned that jewellery and kept the proceeds but not only
did the person, who was aware, not inform the lady whose property had been
misappropriated, of the fact, although he was married to her granddaughter but
told her deliberate untruths upon the subject. It was held that both those men
were engaged in criminal conspiracy.
Punishment
According to section 120 (B) of Penal Code 1860,
a) Whoever is a party
to a criminal conspiracy to commit an offence is 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 conspiracy be punished in the same manner as if he had
abated such offence.
b) 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.
Explanation:
The punishment for
criminal conspiracy is more severe if the agreement is one to commit serious
offence. It is less severe if the agreement is one to commit an act which
although illegal is not an offence punishable with death, imprisonment for life
or rigorous imprisonment for more than two years.
Conspiracy to commit an
offence is itself an offence and a person can be separately charged with
respect to such a conspiracy. There may be an element in a conspiracy but
conspiracy is something more than abatement. This section applies to those who
are the members of the conspiracy during its continuance. Conspiracy has to be
treated a continuing offence and whoever is a party to the conspiracy during
the period for which he is charged is liable under this Section.
The charge of criminal
conspiracy being an independent offence has to be proved like any other
offence. It is generally a matter inference deducible from certain criminal
acts of the involved parties.
Scope of the section:
Section 120B deals with
the punishment for criminal conspiracy. It is not the agreement as such is
punishable but ``being party to conspiracy’’ is punishable. The emphasis is on
the words ``are parties’’. This section is worded in present tense and
therefore cannot be exclusively read to mean whoever has been or had been party
to criminal conspiracy shall be punished as if the offence was committed. In
other words, it is intended to be treated as a continuing offence and whoever
is a party to conspiracy during the period for which he is charged is liable
under section 120B. A conspiracy from its very nature is generally hatched up
in secret. It therefore is extremely rare that direct evidence in proof of
conspiracy can be forth coming from wholly disinterested quarters or under
strangers. Indeed in most cases proof of conspiracy is largely inferential
though the inference must be founded on solid facts surrounding circumstances,
and antecedent and subsequent conduct, among other factors, constitutes
relevant materials.
Sanction for prosecution:
(1) Section of the
government is necessary under section 196A CrPC before instituting proceedings,
but no sanction is needed where the object of the conspiracy was to commit
cognizable offences punishable for more than two years.
(2) Where a public
servant is prosecute under section 120Bread with section 161 no sanction under
section 197 of the code of criminal procedure. 1898 is necessary because the
acceptance of illegal gratification by a public servant cannot be said to be
something done while acting or purporting to act in the discharge of his official
duty. AIR 1954 SC 455.
(3) For a case of
conspiracy under section 120B to commit offences under the Sea customs Act as
application by a person holding authorization under section 1874, Sea Customs
Act, 1878 is necessary in accord consent under section 196B(2). AIR1979
SC 1526.
(4) Where a
charge-sheet filed by the police before the Magistrate disclosed only the
offence of forgery and impersonation, and on a perusal of the records, framed a
charge also under section 120Bof committed the accused, it was held that the
Magistrate took cognizance of only the offences charged by the police and not
of section 120B and that therefore, the committal was not vitiated by the want
of consent under section 196A criminal P.C.
AIR 1971 SC 2372.
Proof of conspiracy:
(1) Where A complaints
to B the superior officer of C that C demanded illegal gratification but B
fails to take any action on such complaint B’s inaction does not indicate the
existence of any conspiracy between B and C.
AIR 1979 SC 705.
(2) Trial
for offences under section 161 & 120B, Penal Code and section 5(2),
Prevention of corruption act – Head of Anticorruption Department to swear
affidavit on behalf of state claiming privilege in respect of documents in
question 1975 CriLY 1411
(3) Conspiracy
is the same as if the conspirator had abetted the offence. Nazir Khan vs State of Delhi
(4) The
most important ingredient of a criminal conspiracy is an agreement for an
illegal act , conspiracy continues to subsist till it is executed or rescinded
or frustrated by choice of necessity -Damudarvs State of Rajasthan
Some Leading Cases:
AbdusSobhanVs .Crown, 7
DLR 540 – Two or three persons accused of
conspiracy were acquitted. The 3rd can be held guilty of conspiracy
when the charge is that there were unknown persons in the conspiracy.
ShamsulHoqueVs . State,
20 DLR 540– Substantive offence and abetment.
Where an offence is alleged to have been committed by two or more persons, the
person responsible for commission of the offence should be charged with the
substantive offence, while the person alleged to have abetted it by conspiracy
should be charged with the offence of abetment under section 109 where the matter
has gone beyond the stage of mere conspiracy and specific offences are alleged
to have been committed.
Jobaida Rashid Vs . State,
represented by the Deputy Commissioner, Dhaka 49 DLR 373– Jobaida’s
jubilation might be the result of her moral support to the activities of her
husband (leading to bloodshed and political change) but for that it cannot be
said that she was in the conspiracy.
Distinguish
criminal conspiracy from the act done in furtherance of common intention
There is not much
substantial difference between conspiracy as defined in section 120 (A) and
acting on a common intention as contemplated in section 34 of the Penal Code.
While in the former the gist of the offence is bare engagement and association
to break the law even though the illegal act doesn't follow. The gist of
offence under section 34 is the commission of a criminal act in furtherance of
common intention of all the offenders which means that there should be unity of
criminal behavior resulting in something for which are individual would be
punishable if it were done by himself alone.
Abatement and conspiracy
As regards the
difference between abatement and conspiracy the forms is the wide of the two-
In point of fact abatement is a genus of which the offence of conspiracy is a
species.
Abatement may be committed in various ways
enumerated in sections 107 and 108 whereas conspiracy is one of them .In the
next place, abatement is not a substantive while criminal conspiracy is
substantive offence by itself and is punishable as such
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