The Notion of Criminal conspiracy in Indian Legal System : History and Rationale Behind
Authors: Kumar Satyam & Shivam Kumar
Designation: BA L.L.B Students, Central University of South Bihar
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Crimes are mainly categories into two divisions one of them is choate crimes means complete crime and another one is inchoate crime means incomplete crime. In this paper, I am going to discuss one of the inchoate crimes and that is criminal conspiracy. Criminal conspiracy is defined in section 120A of the Indian penal code, 1860.
Criminal conspiracy is called inchoate crime because it is not complete in due course, but only in the preparation stage. As we know that mere preparation is not a crime but there is an exception in the case of criminal conspiracy. Categorization of criminal conspiracy in the crime, Glanville Williams write in his book ‘textbook of criminal law’ that-
“If the mere intention of one person to commit a crime is not criminal, why should the agreement of the two people to do it make it criminal? The possible reply is that the law is fearful of numbers, and that the act of agreeing to offend is regarded as a decisive step as to justify its own criminal sanction”.
Section 120A of Indian penal code contains definition of the crime, that state-
“Definition of criminal conspiracy.—When two or more persons agree to do, or cause to be done,—
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated 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.”
Chapter V-A was not incorporated ab initio in the Indian penal code, 1860. It was inserted in this code in the year 1913 by Act 8 of 1913, section 3. Originally Indian Penal code, 1860 contained only two provisions one in section 107 of the code and second one was specific provisions involving offences which included conspiracies to commit them.
Chapter V-A (criminal conspiracy) consists of two section 120A and 120B, section 120 defines act of criminal conspiracy and the other one defines punishment of criminal conspiracy.
The English common law on conspiracy was widened with the judgment of the House of Lords in the well-known case of Mulcahy v R in which the judges ruled:
“A 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. So long as such a design rests in intention, only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise actus contra actum capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means”.
As we know chapter V-A was not incorporated ab initio in the Indian penal code, 1860. It was inserted in this code in the year 1913 by the Act 8 of 1913, section 3, The Statement of Objects and Reasons of the Amending Act justified thus:
IPC and that the existing law is inadequate to deal with modern conditions. The present Bill is designed to assimilate the provisions of the Indian Penal Code to those of the English law with the additional safeguard that, in the case of a conspiracy other than a conspiracy to commit an offence, some overt act is necessary to bring the conspiracy within the purview of the criminal law. The Bill makes conspiracy a substantive offence...”.
INGREDIENTS OF CRIMINAL CONSPIRACY
The main ingredients of section 120A, IPC, are defined below:
(1) There should be two or more persons.
(2) There should be an agreement between themselves.
(3) The agreement must be to do or cause to be done: (a) an illegal act; or
(b) a legal act by illegal means
The Hon’ble Apex Court in BALIYA vs. STATE OF MADHYA PRADESH held that the offence of criminal conspiracy has its foundation in an agreement to commit an offence or to achieve a lawful object through unlawful means. Such a conspiracy would rarely be hatched in the open and, therefore, direct evidence to establish the same may not be always forthcoming. Proof or otherwise of such conspiracy is a matter of inference and the court in drawing such an inference must consider whether the basic facts i.e. circumstances from which the inference is to be drawn have been proved beyond all reasonable doubt, and thereafter, whether from such proved and established circumstances no other conclusion except that the accused had agreed to commit an offence can be drawn. Naturally in evaluating the proved circumstances for the purposes of drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go to the accused.
The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed through an agreement because, agreement per se actus reus .
“Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. When two or more than two person agree to carry into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means”.
Pillai, PSA, criminal law, 14 ed., LexisNexis, 2020, p.251.
Indian penal code, 1860.
(1863) LR 3 HL 306
Pillai, PSA, criminal law, 14 ed., LexisNexis, 2020, p.252.
2012(9) SCC 696