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Conspiracy PDF
Conspiracy PDF
i
"The crime of conspiracy" remarks Russell, "affords support for any who
advance the proposition that criminal law is an instrument of government." 1
The o p p o r t u n i t y , which the vagueness of this crime can offer, to
governmental oppression has been recognized by an independent judiciary
conscious of the need to preserve the liberty of the subject. As Fitzgerald, J.,
said, "The law of conspiracy is a branch of our jurisprudence to be narrowly
watched, to be zealously regarded and never to be pressed beyond its true
limits." 2 The abuse, of the law of criminal conspiracy in the hands of
Government creates a genuine fear in all minds. Prof. Sayre writes, "A
doctrine so vague in its outlines and uncertain in its fundamental nature as
criminal conspiracy lends no strength or glory to the law; it is a veritable
quicksand of shifting opinion and ill-considered thought." 3 He further
emphasizes that, "it would seem, therefore of transcendent importance that
judges and legal scholars should go to the heart of this matter, and with eyes
resolutely fixed upon justice, should reach some common and definite
understanding of the true nature and precise limits of the elusive law of
criminal conspiracy."4
The*above remarks may also apply with equal emphasis to the law of
criminal conspiracy in India. There is close affinity between the Indian and
the English law of Criminal conspiracy.
As the crimes are on the rise, the law relating to conspiracy has been
revalued and expanded in recent years. 5
II
Conspiracy in common law started its career primarily as a civil injury 6 but
7. 33 Edw. 1, C. 2.
8. Stephen, History of Criminal Law, vol. II (1883) p. 227.
9. In Polluter's case (1611) 9 Co. Rep. 55, the criminal aspect of conspiracy was
developed by the Star Chamber. This case forms the source of modern law on
conspiracy.
10. Supra note 1 at 214.
11. Supra note 9.
12. Halsbury's Laws of England, (3rd Ed.) vol. 10. p. 310-11. In R. v. Parnell, (1881) 14
Cox. C.C., at p. 513 Fitzgerald, J, stated, "Conspiracy has been aptly described as
divisible under three heads: where the end to be attained is in itself a crime, where
the object is lawful but the means to be resorted to are unlawful, and where the
object is to do injury to a third party or to a class, though if the wrong were effected
by a single individual it would be a wrong but not a crime."
13. (1953) 2 All ER 1067 (1071).
14. (1868) LR 3 HL 306. The House of Lords in Mogul S.S. Co. v. Mcgregor (1892) AC 25
further explained that, an agreement which is immoral or against public policy or in
restraint of trade, or otherwise of such a character that the courts will not enforce it,
is not necessarily a conspiracy. An agreement, to be a conspiracy, must be to do that
which is contrary to or forbidden by law, as to violate a legal right or make use of
unlawful methods, such as fraud or violence, or to do what is criminal.
15. (1868) LR3 HL 306.
166 ESSAYS OF INDIAN PENAL CODE
IPC was amended in 1870 as to insert S. 120-A IPC. Chapter V-A has been
introduced in the code by the Criminal Law Amendment Act (8 of 1913).
The object of the amendment was to prevent the commission of crime by
nipping them in the bud. 16 Apart from conspiracy, there are two more
categories of inchoate offences in common law; attempt and abetment.
However, conspiracy is one of the most complicated laws. 17 The law of
conspiracy, actually, may seem somewhat arbitrary. 18 Glanville Williams
writes:19
If the mere intention of one person to commit a crime is not
criminal, why should the agreement of two people to do it make
it criminal? The only possible reply is that the law (or, if you
prefer, the Establishment) is fearful of numbers, and that the act
of agreeing to offend is regarded as such a decisive step as to
justify its own criminal sanction.
The term conspiracy will include all combinations involving violation of
the private rights which, if done by a single, person would give a civil
though not a criminal remedy against the wrong-doer. 20 However, the
common law of conspiracy has not been altogether uniform. 21 But so far as
the law of present day is concerned the House of Lords has declared (a) that
the gist of conspiracy is the agreement, whether or not the object is attained
(b) that the purpose of making such agreements punishable is to prevent the
commission of the substantive offence before it has even reached the stage
of attempt and (c) that it is all part and parcel of the preservation of the
Queen's peace within the realm.22
16.State ofA.P. v. Cheemalapati Caneswara Rao, AIR1963 SC 1850; (1963) 1 Cri L J 671.
17.PSA Piflai's Criminal Law (9th ed. 2000) p.268.
18.Ibid
19.Glanville Williams, Text book of Criminal Law (2nd ed. First Indian Reprint, 1999) p.
420.
20. Supra note 12 at 505.
21. In R. v. Turner, 13 East, 228 it was held that an indictment will not lie for a
conspiracy to commit a mere civil trespass. But an opposite view was taken in R. v.
Rowlands, 170 B. 671. (See also Quinn v. Leatham,l901 A.C. 495; Mulcahy v. R. 3 H.L.
306; Kromme v. R,. 17 Cox C.C. 492). But the view in Turner's case was re-established
in Mogul S.S. Co. v. Mc gregor 33 Q.B.D. 591. However, Sir Wright held an opinion
that the result of the case law on the subject reveals as a general rule, that a
combination to injure a private person is not criminal unless the means to be
employed are criminal in other words conspiracy as such is not punishable unless it
is conspiracy to commit a crime (Wright, 'Law of Criminal Conspiracies and Agreement')
Harris: Criminal Law (20th ED.) p. 49; See also R. v. Newland, (1953) 37 Cr. App. R.
1541.
22. Kenny, Outlines of Criminal Law (Ed. Turner 17th Ed.) p. 89; See also Board of Trade v.
Owen (1957) 2 WLR 351 at 357.
CONSPIRACY 167
III
Originally the Indian Penal Code made conspiracy punishable only in two
forms viz., conspiracy by way of abetment and conspiracy involved in certain
offences.23 In the former case an act or illegal omission must take place in
pursuance of conspiracy in order to be punishable. The latter is a conspiracy
by implication and the proof of membership is enough to establish the
charge of conspiracy. In abetment, under second clause of S. 107, an act or
illegal omission must take place in pursuance of the conspiracy and a mere
agreement is not enough. 24 The punishment for conspiracy is the same as if
the conspirator had abetted the offence.25 The offences created by Ss. 109
and 120A are quite distinct and where offences are committed by several
persons in pursuance of a conspiracy it is usual to charge with those
offences as well as conspiracy to commit those offences.
However, in 1870 the law of conspiracy was widened by adding, S.121-
A to the Indian Penal Code. 26
A conspiracy to commit an offence under S. 121 Indian Penal Code or
to overawe the government by means of criminal force or the show of
criminal force is punishable. But to constitute a conspiracy in such a case it
is not necessary that any act or illegal omission should have taken place. 27
So far, the law of conspiracy in India required the doing of an overt act
in order to be punishable, except in respect of the offences particularized in
S.121-A Indian Penal Code. However, in 1913 Indian Criminal Law
Amendment Act 28 was passed as an emergent piece of legislation which
gave an extended effect to the law of conspiracy in India, by adding Ch. V-
A (Ss. 120A & 120B Indian Penal Code) to the Penal Code. The necessity to
widen the scope of the law of conspiracy has been explained in the
statement of objects and reasons thus:
23. A person is said to abet the doing of a thing by conspiracy if he engages with one or
more other person or persons in any conspiracy for the doing of that thing, if an act
or illegal omission takes place in pursuance of that conspiracy, and in order to the
doing of that thing (S.107, IPC).
24. Pramatha Nath v. Saroj Ranjan, AIR 1962 SC 876.
25. Alimjan Bibi, (1937) 1 Cal 484. Quoted in Ratanlal Dhirajlal, The Indian Penal Code,
(30th ed. 2004) Wadhwa & Company.
26. Inserted by Act XXVII of 1870; S.4.
27. Sulaiman, CJ in Fhabwala v. Emperor, 1933 A.LJ.799, observed: - In law, the King
never dies; it is enough for the prosecution to prove that there was a conspiracy to
deprive the King Emperor of the Sovereignty of British India. Having regard to S.3
(23) of the General Clauses Act, it is not necessary to prove that the conspirators
were conspiring for such deprivation to take place within the life time of the King
Emperor. Criminal Conspiracy is complete as soon as two or more persons agree to
do or cause to be done an illegal act, or an act which is not illegal by illegal means.
28. Act VIII of 1913.
168 ESSAYS OF INDIAN PENAL CODE
29. The word 'illegal' is applicable to every thing which is an offence or which is
prohibited by law, or which furnishes ground for a civil action; (S.43 IPC).
30. S. 120-A IPC.
31. Ibid
32. SeeS.107IPC.
33. Proviso to S. 120-A IPC.
CONSPIRACY 169
IV
As stated above the inclusion of Chapter V-A in the Penal Code was
designed to assimilate the provisions of English law. However, in the words
of a learned commentator, "The Statement of objects and Reasons appears
in this respect to be inaccurate, since it goes beyond merely assimilating the
criminal law of India so that in force in England."39 Before the enactment
of Ss. 120A & 120B IPC, conspiracy was treated as an abetment. Now it has
been defined separately but major conspiracies shall still continue to be
conspiracy must do some overt act towards the fulfillment of the object of
conspiracy the essential ingredients being an agreement between the
conspirators to commit the crime and if these essentials and requirements
are established, the act would fall within the trapping of the provisions
contained in S. 120B.
The use of the word "illegal" in the definition of criminal conspiracy in
S.120-A IPC is extremely comprehensive and would make even a case of
civil trespass indictable, as a criminal conspiracy.44 In State ofMaharashtra v.
Somnath Thapa45 Supreme Court explained the ingredients of conspiracy and
observed: 453
[T]o establish a charge of conspiracy, knowledge about
indulgence in either an illegal act or a legal act by illegal means is
necessary. In some cases intent of unlawful use being made of
the goods or services in question may be inferred from the
knowledge itself... Finally when the ultimate offence consists of
a chain of actions, it would not be necessary for the prosecution
to establish, to bring home the charge of conspiracy, that each of
the conspirators had to know of what the collaborator would do,
so long as it is known that the collaborator would put the goods
or services to an unlawful use.
Thus, even knowledge of an illegal act is enough to hold one guilty of
conspiracy. But as per the Ss. 120A and 120B it is the intent by two or more
which is necessary to constitute conspiracy. The law relating to conspiracy
aims at punishing guilty intentions because no overt act is required for the
same. However, it can be inferred that mem rea is not a necessary ingredient
of the charge of conspiracy to commit an offence.
44. (i) See Note of Dissent by Pt. M.M. Malviya, to the Indian Criminal Law
Amendment Bill. (Quoted in Roy, Law Relating to Press and Sedition, pp. 48-50)
(ii) The result of this sweeping enactment is to make a mere breach of contract by
two or more person punishable as a crime. If, for instance a husband and wife
agree to sell their house and then think better of it and refuse to convey they
would be punishable under S. 120-B of the Penal Code though the civil court
may not have enforced a specific performance of the contract. The exception
of English law that wife and husband are treated as one person, is not acceeded
to in this chapter (Gour, supra note 39 at 508). This adds to the absurdity of
Indian Law on conspiracy which is not found in the English law.
(iii) Huda is of the opinion that, "It is not the policy of law to create offences that
cannot ordinarily be proved. There probably would have been no danger and
inconvenience if the law in India were left exactly where it was before the
passing of the Criminal Law Amendment Act, 1913". (T.L.L. p. 107.).
45. 1996 Cri LJ 2448 : AIR 1996 SC 1744.
45a. Id. at 1749
172 ESSAYS OF INDIAN PENAL CODE
46. (1999)5 SCC 253. See also Sardar Sardul Singh Caveeshar v. State ofMaharashtra, AIR
1965 SC 682; NoorMohd YusufMomin v. State of Maharashtra, (1970)1 SCC 696;
Shivnarayan Laxminarayan Joshi v. State ofMaharashtra,(19S0) 2 SCC 465; Ajay Aggarwal
v. Union of India (1993) 3 SCC 609; R v. Ardalan (1972) 1 WLR 463; Bhagwandas
Keshwani v. State ofRajasthan, (1974) 4 SCC 611; Moijullah v. State ofRajasthan (2004)
2 SCC 90; State ofH.P. v. Jailal, (1999) 7 SCC 280; Sanjeev Kumar v. State ofH.P., AIR
1999 SC 782.
46a. State v. Nalini, id. at 515-518, para 583.
though they know that there are to be other members. These are
theories and in practice it may be difficult to tell which
conspiracy in a particular case falls into which category. It may,
however even overlap. But then there has to be present mutual
interest. Persons may be members of single conspiracy even
though each is ignorant of the identity of many others who may
have diverse roles to play. It is not a part of the crime of
conspiracy that all the conspirators need to agree to play the
same or an active role.
(5) When t w o or more persons agree to commit a crime of
conspiracy, then regardless of making or considering any plans
for its commission, and despite the fact that no step is taken by
any such person to carry out their common purpose, a crime is
committed by each and every one who joins in the agreement.
There has thus to be two conspirators and there may be more
than that. To prove the charge of conspiracy, it is not necessary
that intended crime was committed or not. If committed it may
further help prosecution to prove the charge of conspiracy.
(6) It is not necessary that all conspirators should agree to the
common purpose at the same time. They may join with other
conspirators at any time before the consummation of the
intended objective, and all are equally responsible. What part
each conspirator is to play may not be known to everyone or the
fact as to when a conspirator joined the conspiracy and when he
left.
(7) A charge of conspiracy may prejudice the accused because it
forces them into a joint trial and the court may consider the
entire mass of evidence against every accused. Prosecution has to
produce evidence not only to show that each of the accused has
knowledge of the object of conspiracy but also of the agreement.
In the charge of conspiracy the court has to guard itself against
the danger of unfairness against the accused. Introduction of
evidence against some may result in the conviction of all, which
is to be avoided. By means of evidence in conspiracy, which is
otherwise inadmissible in the trial of any other substantive
offence, prosecution tries to implicate the accused not only in
the conspiracy itself but also in the substantive crime of the
alleged conspirators. There is always difficulty in tracing the
precise contribution of each member of the conspiracy but then
there has to be cogent and convincing evidence against each one
of the accused charged with the offence of conspiracy...
(8) It is the unlawful agreement and not its-accomplishment,
which is the gist or essence of the crime of conspiracy. Offence
174 ESSAYS OF INDIAN PENAL CODE
65. Huda, Principles of Criminal Law (T.L.L. p. 106-107). The Supreme Court in a decision
(The State ofAndhra Pradesh v. Subbaiah 1961 (2) SCJ 686 held that where the matter
has gone beyond the stage of mere conspiracy and offences are alleged to have been
actually committed in pursuance thereof the accused can be charged with the specific
offences alleged to have flown out of the conspiracy along with the charge of
conspiracy. The court observed "Conspiracy to commit an offence is itself an
offence and a person can be separately charged with respect to such a conspiracy.
There is no analogy between S. 120-B and S. 109, Indian Penal Code. There may be
an element of abetment in a conspiracy; but conspiracy is something more than an
abetment. Offences created by Ss. 109 and 120-B, Indian Penal Code, are quite
distinct and there is no warrant for limiting the prosecution to only one element of
conspiracy, that is, abetment when the allegation is that what a person did was
something over and above that. Where a number of offences are committed by
several persons did was something over and above that. Where a number of
offences are committed by several persons in pursuance of a conspiracy it is usual to
charge them with those offences as well as with the offences of a conspiracy to
commit those offences. As an instance of this we may refer to the case in S.
Swaminathan v. State ofMadras." (AIR 1957 SC 340).
The court, however, pointed out that it is not desirable to charge the accused persons
with conspiracy with the ulterior object of letting in evidence which would otherwise
be inadmissible and that is undesirable to complicate a trial by introducing a large
number of chargers spread over a long period. But it would only be a question oi
propriety which should be left to the discretion of the trial judge to decide in the
facts and circumstances of the case. [Ed.]
66. See S.C.Biban v. State of Bihar, AIR 1994 SC 2420.
178 ESSAYS OF INDIAN PENAL CODE
74. Mohammad Usman Mohammad Hussain Maniyar and Ors. v. State of Maharashtra (1981) 2
SCC 443.
75. See State ofKerala v. P.Sugathan andAnr., 2000 (8) SCC 203; Devender Pal Singh v. State
ofN.C.T. ofDelhi, 2002 (5) SCC 234.
76. AIR 1980 SC 1382.
77. Id. at 1390, pare 8. See also MS. Reddyv. State Inspector ofPolice A.C.B. Nellore, 1993
Cr LJ 558(AP); Ammuni v. State of Kerala, AIR 1998 SC 280; Kuldeep v. State of
Rajasthan, AIR 2000 SC 3649; Khalid v. State, 1990 Cr LJ Raj.
180 ESSAYS OF INDIAN PENAL CODE
accused carrying a loaded pistol. The court said that this could not
constitute an evidence of conspiracy. 80
Section 120-B provides for the punishment of offence of conspiracy. A
crucial distinction between the two provisions is that while the offence of
criminal conspiracy is complete as soon as the conspirators forge an
agreement to do an illegal act or a legal thing through illegal means, under
the provision of 120-B, even those persons who are not party to the initial
agreement or did not participate in the meeting at the time of the formation
of the agreement, but who subsequently joined the conspiracy at a later
point in time, are made liable for the conspiracy. A conspirator may come
and leave at any time but every such conspirator will be liable for the
subsequent acts of other conspirators. In Suresh Chandra Bahri v. State of
Biharn was convicted along with other accused with the aid of Section 120-
B. In another case of Nand Kumar v. State of Bihar11 Nand Kumar was alleged
to conspire with other accused to get LIC policies issued to receive
premium commission on the basis of fake and forged documents. However,
no evidence was found to show the knowledge and consent of the accused
for the aforesaid act. The Supreme Court set aside the conviction of the
other accused.
Thus, conspiracy is an inchoate crime and is punishable primarily
because an agreement to commit a crime is a decisive act, fraught with
potential dangers; but to bring an agreement to commit a civil wrong within
the range of criminal conspiracy is to stretch the rationale of law to the
farthest limit. In its broad reach it can be made to do great evil.
IV
Proof: The proof of this psychological offence is little bit difficult because
the facts to prove this offence lie hidden in human minds and their
expressions are always concealed in cover of darkness or code languages.8-'
Although secrecy is frequently a characteristic of conspiracy, it forms no
essential element of the crime. Hence, it cannot be argued that because
everything was done openly, there could be no conspiracy in the case at
all. 84
The court laid down in clear terms that offence of conspiracy can be
proved either by direct or circumstantial evidence.85 Since conspiracies are
not hatched in the open, by their nature, they are secretly planned. Direct
80. State v. Siddhartb Vasbisth, (alias Manu Sharma), 2001 Cr LJ 2404 pel).
81. AIR 1994 SC 2420.
82. AIR 1992 SC 1939.
83. Supra note 48 at 93.
84. ILR (1974) 1 Cal 599 (654).
85. Quinn v. Leathern, 1901 AC 495; (1900-03) All ER Rep 1 HL.
182 ESSAYS OF INDIAN PENAL CODE
evidence in proof of conspiracy is, therefore, an exception than the rule. So,
the facts about the conspiracy are generally inferred from the circumstances
before, during and after the occurrence. 86
It is not essential for agreement that the members of conspiracy meet
each other or know all the members or even majority of the members to the
conspiracy. It is also not essential that all should know all the details of
conspiracy. As a matter of fact, a criminal conspiracy has to be inferred
from the circumstances and from certain criminal acts of the parties
accused, done in pursuance of an apparent criminal purpose common
between them.
There is no difference between the mode of proof of the offence of
conspiracy and that of any other offence, it can be established by direct or
circumstantial evidence.87 The inferences are normally deduced from acts of
parties in pursuance of a purpose in common intention between the
conspirators.88 It was held by the court that to prove conspiracy there must
be evidence direct or circumstantial to show that there was an agreement
between two or more persons to commit an offence.89 Under S. 34 it is
essential that some criminal act should have been done in furtherance of a
common intention of all the accused persons. When dacoity with murder
was committed, the court said that conviction under S.120B rule out the
need for conviction under S.34.90
The circumstances in a case, when taken together on their face
value, should indicate the meeting of the minds between the conspirators
for the intended object of committing an illegal act or an act which is not
illegal by illegal means. A few bits here and a few bits there on which the-
prosecution relies cannot be held to be adequate for connecting the accused
with the commission of the crime of criminal conspiracy. It has to be shown
that all means adopted and illegal acts done were in furtherance of the
object of the conspiracy hatched. The circumstances relied for the purposes
of drawing an inference should be prior in point of time than the actual
commission of the offence in furtherance of the alleged conspiracy. 91
The conspiracies are not hatched in open, by their nature, they are
secretly planned, they can be proved even by circumstantial evidence, the
lack of direct evidence relating to conspiracy has no consequence. 92 In
Bhagwan Swaroop Lai Bishan Lai v. State of Maharashtra^ it was held that under
101. If deemed necessary it may be applied in cases of specific torts only; such as torts
to commit malicious prosecution, malicious defamation, to procure breach of
contract etc.
102. (a) As has been already provided in S.121-A, I P C
(b) The Draft Code of 1879 in England classified the objects of conspiracy as (1)
treasonable (2) seditious (3) to bring false accusations (4) to pervert justice (5) to
defile women (6) to murder (7) to defraud (8) to commit indictable offences (9) to
prevent by force the collection of rates and taxes.
The above recommendations were adopted in the New Zealand Code. South
Africa is content with a doctrine that limits its conspiracies to commit crimes.