What do you mean by term Criminal Conspiracy? How is it punishable? Discuss differences between Criminal liability under section 34 IPC and criminal conspiracy under section 120A IPC. [MPCJ 2017]

Ans. In the original I.P.C., the criminal conspiracy in the stictu sensu was absent. It existed only by way of abetment under section 107-clause secondly of the IPC. Subsequent to addition of Sec. 120 A & B in IPC vide 1913 amendment, the scope of criminal conspiracy has expanded and assumed the character of a substantive offence.

For the first time, the House of Lord in England evolved a new criminal jurisprudence in the form of criminal conspiracy in its judgment Mulcahy vs Regina: (1868) LR HL 306. Later on, Lord Brampton defined Criminal conspiracy in leading case of Quinn v. Leathem (1901) AC 495 (528). The aforesaid definition is also reflected under S. 120-A of the IPC and goes to state that when 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. It is further added by virtue of ‘Proviso’ in the section that except when the agreement is to commit an offence in order to constitute criminal conspiracy some act in addition to such agreement is also required to be done.

Punishability:- Conspiracy is both a crime as well as a tort in India. Unlike just for a ground of damages, in order to be punishable the conspiracy has to satisfy the substantive ingredient of offence as provided under section 120 A of IPC. To govern its procedural aspect, there are also several other relevant provision. Section 10 of IEA act acknowledges that conspiracy is hatched in secrecy and thereby makes special rule to lead fact in evidence to prove the same. Likewise, section 196(2) of CrPc provides special procedure of obtaining sanction of the government when conspired offence is punishable with less than 2 year rigorous imprisonment because provision of conspiracy is prone to be misused to implicate even innocent person.

Recently, Hon’ble Apex court in Rajiv Kumar vs State Of Uttar Pradesh (2017) 8 SCC 791 has highlighted the necessary constituent element of criminal conspiracy which are as under –

  • There has to be an agreement to cause an illegal act or an act which is not illegal in itself by way of illegal means : So long as a design rests in intention only, howsoever horrendous it may be, it is not indictable because conspiracy consists not merely in the intention of two or more but in the agreement of two or more. The essence of the offence of conspiracy is the meeting of minds and such combination or association is itself the gist of the offence. So, it is the unlawful agreement which is the gravemen of the crime of conspiracy.

Since, the offence of criminal conspiracy has its foundation in an agreement to commit an illegal act or a legal act by illegal means. Section 43 of IPC defines expression ‘illegal’ to cover everything which is an offence or which is prohibited by law or which furnishes ground for a civil action. Such unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. It is also not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage.

The crux of the aforementioned law has been nicely summed up by Hon’ble Apex Court in Esher Singh vs State Of Andhra Pradesh (2004) 11 SCC 585 is that when two or more person agree to carry out an illegal act or a legal act by illegal means into effect, then the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, is punishable.

  • The agreement must be between two or more natural persons: It is an established rule of the law of conspiracy that there should be at least two persons. The Hon’ble Apex court in Topandas vs The State Of Bombay AIR 1956 SC 33   held that it is a principle of common sense that one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself. But, Hon’ble Apex court has also visualised the possibility in Bimbadhar Pradhan vs The State Of Orissa AIR 1956 SC 469 when a person may be indicted alone for conspiring with persons who are unknown, dead, uncaught, incapable of committing the crime or immune or have been pardoned.
  • If such agreement is to commit offence then it is ipso facto sufficient to constitute criminal conspiracy and in all other cases an act besides agreement is also needed: The ‘Proviso’ attached to the section 120 A of the act draws distinction between an agreement to commit offence and all other agreement such as an act forbidden by law etc. While in the former case agreement on its own constitutes the criminal conspiracy but in the latter cases an overt act needs to be done in pursuance of the conspiracy to complete the criminal conspiracy. The Hon’ble apex court also held in State vs Nalini (1999) 5 SCC 253 (Rajiv Gandhi Assassination case) that when agreement is to do a legal act by illegal means then an overt act is necessary to constitute crime of conspiracy.

Difference:- Both section 34 of IPC and section 120 A of IPC aim to discourage the group offender. But, they differ as under –

  • Section 34 of IPC incorporates a rule of evidence and does not constitute any offence on its own. So, the charge under section 34 of IPC should be along with some other substantive offence, i. e. 323/34 of IPC. Whereas, section 120 A of IPC creates a substantive and independent offence i. e. 120 B of IPC.
  • Under section 34 of IPC, the essence of offence is common intention by two or more persons. Whereas, under section 120 A of IPC, it is an agreement to commit an offence etc by two or more persons which is gravemen of offence.
  • Section 34 of IPC is applicable when some criminal act is done in furtherance of common intention of all. Whereas, under section 120A of IPC mere an agreement to commit an offence is per se punishable without any need of overt or covert act.
  • Under section 34 of IPC, the offender has to be physically present at the scene of crime or at such distant place from where he can participate in some way in the offence including just keeping watch by binocular. But, under section 120 A of IPC a person even far away from the place of offence and doing nothing at the time of offence can be made liable for criminal conspiracy if he was privy to the agreement to commit an offence.

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