Section 120A of Indian Penal Code defines criminal conspiracy. It says:
“when two or more persons agree to do or cause to be done (i) an illegal act or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. Section 120B prescribes the punishment to be imposed on a party to a criminal conspiracy.
As pointed out by Subba Rao, J in Major E.G. Barsay v. State of Bombay, (AIR 1961 Supreme Court 1762) :
“…the gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts”.
Under section 43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Section 120A and 120B were brought on the statute book by way of amendment to Indian Penal Code in 1913. The Statement of Objects and Reasons to the amending Act reveals that the underlying purpose was to make a mere agreement to do an illegal act or an act which is not illegal by illegal means punishable under law. This definition is almost similar to the definition of conspiracy, which we find in Halsbury’s Laws of England. The definition given therein is :
“Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied or in part express and in part implied…. and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be”.
Earlier to the introduction of Section 120A and B, conspiracy per se was not an offence under the Indian Penal Code except in respect of the offence mentioned in Section 121A. However, abetment by conspiracy was and still remains to be an ingredient of abetment under clause secondly of Section 107 of Indian Penal Code. The punishment therefor is provided under various sections viz. Section 108 to 117.
Whereas under Section 120A, the essence of the offence of criminal conspiracy is a bare agreement to commit the offence, the abetment under Section 107 requires the commission of some act or illegal omission pursuant to the conspiracy. A charge under Section 107/109 should therefore be in combination with a substantive offence, whereas the charge under Section 120A/120B could be an independent charge.
In the Objects and Reasons to the Amendment Bill, it was explicitly stated that the new provisions (120-A & B) were “designed to assimilate the provisions of the Indian Penal Code to those of the English Law ……”
Thus, Sections 120A & B made conspiracy a substantive offence and rendered the mere agreement to commit an offence punishable. Even if an overt act does not take place pursuant to the illegal agreement, the offence of conspiracy would still be attracted. The passages from Russell on Crimes, the House of Lords decision in Quinn v. Leathem, (1901 AC 495), and the address of Willes, J to the Jury in Mulcahy v. Queen, (1868 3 HL 306) are often quoted in the decisions of Supreme Court . The passage in Russell on Crimes referred to by Jagannatha Shetty, J in Kehar Singh’s case [1988(3) SCC at page 731] is quite apposite :
“The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough”
This passage brings out the legal position succinctly.
In Nalini’s case, S.S.M. Quadri, J, pointed out that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is a sine qua non of the criminal conspiracy. Judge L. Hand, in Van Riper v. United States (13 F 2d. 961) said of conspiracy : “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.”
In Yashpal Mittal v. State of Punjab [1977(4) SCC 540], Goswami, J, speaking for a three-Judge Bench analysed the legal position relating to criminal conspiracy. At pages 610611, the learned Judge observed that “the very agreement, the concert or league is the ingredient of the offence.” and that “it is not necessary that all the conspirators must know each and every detail of the conspiracy”. It was then observed that “there must be unity of object or purpose but there may be plurality of means, sometimes even unknown to one another, amongst the conspirators.”
Dr. Sri Hari Singh Gour in his well known ‘Commentary on Penal Law of India ‘, (Vol. 2, 11th Edn. page 1138) summed up the legal position in the following words :
“In order to constitute a single general conspiracy there must be a common design. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has 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 evil scheme may be promoted by a few, some may drop out and some may join at a later stage, but the conspiracy continues until it is broken up. The conspiracy may develop in successive stages. There may be general plan to accomplish the common design by such means as may from time to time be found expedient.”
In State of H.P. v. Krishan Lal Pradhan, 1987(2) RCR (Criminal) 682 (SC) : [1987(2) SCC 17], it was reiterated that every one of the conspirators need not take active part in the commission of each and every one of the conspiratorial acts.
In the case of State v. Nalini, 1999(2) RCR (Criminal) 682 (SC) : [1999(5) SCC 253], S.S.M. Quadri, J, after a survey of case law made the following pertinent observations : (at paragraph 662) :
“In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred.
It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences.”