CRIMINAL CONSPIRACY
[SECTION 120 A- 120B]
Content Prepared by
Prabhat Kumar,
Assistant Professor (Part Time)
Patna Law College, Patna University
• In 1913, by amendment criminal conspiracy
added as a general offence.
• Earlier abetment by conspiracy was there before
the 1913 but criminal conspiracy as a general
offence was not there.
• Section 120 A-
Agree to do cause to be done
By themselves done by some other 3rd person
OFFENCE
ILLEGAL ACT PROHIBITED BY LAW
GROUND FOR CIVIL ACTION
• Prohibited by Law:
1. They agree to demand dowry.
2. They agree to smuggle gold in India.
3. They agree to atrocities against weaker.
• Civil action:
1. Tort
2. Offence under IPC: Agreement to commit criminal act and
agreement to commit civil wrong.
3. Act is not illegal but the means is illegal. E.g. A landlord wants to
vacate the premises by the tenant since tenancy period is over.
Landlord may go to court. But landlord make agreement with
street gundas to throw out his belongings. So, the act is not illegal
but the means he adopted is illegal. Hence it come under criminal
conspiracy.
Criminal Conspiracy
Illegal Act Act is not illegal but
means is illegal
• Explanation: for a criminal conspiracy it is not necessary that the ultimate
object of the act is illegal rather even if the means to which they have
agreed is illegal, it will amount to a criminal conspiracy.
• Criminal Conspiracy
Prohibited by
offence Civil action
law
Apart from agreement it is also
Mere agreement to commit
to be proved that one of the
the offence Is sufficient.
conspirator did an act in
Proviso will not be applied
pursuance of that agreement
• In general in cases of criminal conspiracy it is said that agreement is a gist of
criminal conspiracy i.e. Agreement is actus reus for criminal conspiracy that is the
mere agreement would be sufficient for criminal conspiracy. However it is not true
about all criminal conspiracy. As per the proviso this would be true only about the
conspiracy to commit an offence. But if the conspiracy is to commit an act
prohibited by law or to do a civil wrong then in such case some act or omission
should have been done by either of the parties in pursuance of the conspiracy. It
can be any preparatory act towards the object of agreement and not necessarily
the ultimate object.
• E.g. To buy the music system (preparation) for creating nuisance as A & B were
agreed to create nuisance against C.
• In case of an agreement to commit an offence the actus reus is the agreement
itself but in the case of civil wrong or something prohibited by law, the actus reus
is some act or omission committed in pursuance of that agreement.
Offence [Content of agreement]
Actus Reus
Prohibited by law [agreement + act done in pursuance]
And when you say an agreement, common intention is implicit in it.
• Mens Rea- common intention
• E.g. A & B agreed to do an offence. Essentials: agreement (actus
reus), common intention (mens rea)
• Difference between section 34 and section 120 A:
• Whenever two or more person agree to commit an offence, it will
be said that they have formed a common intention to commit that
offence and even nothing more is done by either of them they will
all be held liable for criminal conspiracy on the basis of mere
agreement and common intention.
• On the other hand for section 34, there should be common
intention between two or more persons and one of them in
furtherance of that common intention has committed that offence
whereas the others were actively participation at the time of the
commission of the offence then all the others will be held
constructively liable for the main offence read with section 34.
A
B C
COMMON
INTENTION
AGREEMENT
• Criminal conspiracy [There has to be clear
agreement between the parties and not by
conduct]
A Murder (in the house)
B Guarding from outside
C Waiting for A & B standing on road (bike)
A C.I A commits offence himself
B B
C
C agree
(Criminal Conspiracy) actively participated
A-B-C [U/Sec. 120B] as B & C are
constructively liable for
murder. Hence section
302 shall charged
• Both/ all Intention & Not knowledge
• Common Intention [Mere knowledge is sufficient or not?]
• Both party should have intention. Mere knowledge is not sufficient to held
for criminal conspiracy.
• For e.g. A used to say daily that I am going to kill C. B is the room partner
of A and he knows A’s intention. But B have not participated in any act or
preparation. B shall not be liable for criminal conspiracy. B had mere
knowledge and not intention.
• Parliament attack case (2001): knowledge is distinct from common
intention.
• Abdul gilani acquitted as there was no evidence against him for criminal
conspiracy. He had only knowledge about the attack as he called from
Srinanagar that what have you done in Delhi?
• A mere knowledge is not sufficient for common intention. Common
intention requires a distinct agreement i.e. Meeting of mind to do the
thing together whereas a mere knowledge does not manifest meeting of
minds to do that things together. Knowledge on its own cannot create a
liability for its criminal conspiracy.
• Thus, it is clear that mere knowledge is not sufficient for criminal
conspiracy rather there has to be common intention.
• Burden lies upon prosecution to prove that there was not merely
knowledge that offence may be committed rather there has to be a clear
proof of common intention (agreement) to commit the offence together
or committed by someone else.
• Section 107 [Secondly]- abetment by criminal conspiracy.
• Engages in conspiracy [not criminal conspiracy] means engages in
an agreement.
• Two or more persons agrees to do an act
• Doing of that thing means offence [abetment shall always be of
offence and not of any civil wrong or any prohibition by law].
• E.g. A & B make an agreement to kill X in 1905. whether they are
punishable for an agreement or not? Answer is no because for
abetment of conspiracy there should be an act or illegal omission
in pursuance of that conspiracy. Before 1913, no criminal liability
for any conspiracy of an act prohibited by law or any civil wrong.
• So to broaden the scope of criminal conspiracy, section 120 A was
inserted.
• This law made for the purpose of colonial agenda. Just agreement
led to crime.
Difference between Section 107 (secondly) &
Section 120A
• Criminal conspiracy under Section 120A is broader as compared to
section 107 (secondly) read with section 108. In section 107
(secondly) the agreement can be only for an offence and the
criminal liability for abetment by conspiracy will arise only upon
some act or illegal omission committed by either of them in
pursuance of criminal conspiracy. Moreover section 107 (secondly)
does not include the cases of agreement to do an act prohibited by
law or a civil wrong. Whereas section 120A includes both of them
and also it punishes the criminal conspiracy to commit an offence
per se even if no illegal act or omission has been committed in
pursuance thereof. In the cases of criminal conspiracy to commit a
civil wrong or an act prohibited by law, it is essential that one of the
party should have committed some act or illegal omission in
pursuance thereof.
Procedural Aspects
• Section 196(2) CrPC- If the conspiracy is of offence
punishable with 2 years rigorous imprisonment or
more or death sentence or life imprisonment then no
consent shall be required. [Punishable as if he has
abetted the offence section 120B]
• For other offences- consent is required by State
Government or District Magistrate.
• < 2yrs of rigorous imprisonment or >/ 2yrs simple
imprisonment or prohibited by law or civil wrong.
Section 120 B
120B (1) 120B (2)
>/ 2YRS/ L.I/ death/ < 2yrs rigorous/ > 2yrs
rigorous simple/ prohibited by
law/ civil wrong
Consent of SG or DM
No consent is required
is required
• Punishable as if he has Punishment-
abetted the offence 6months.
Inchoate Offence
Criminal Criminal
Abetment
Conspiracy attempt
• Offences which are incomplete but still the offender
will be liable and offence shall be punishable.
• Inchoate offences are those offences which are
incomplete offences and accused is made liable as a
matter of policy even though the offence is not
complete.
Esher Singh v. State of Andhra Pradesh (2004 SC)
• DECISION- There may be some circumstances which
are a step before the desired offence but still the policy
of law is to punish the accused for that much of act
only so as to prevent some bigger offence from being
committing. In case of criminal conspiracy, the purpose
of section 120A & 120B is to prevent the
uncontrollable power that the combination of persons
acquires for the purpose of committing an offence.
• Policy of criminal conspiracy- Combination of persons+
To stop it at initial stage.
• Can a single person commit criminal conspiracy with himself? No.
• Can a single person be made liable for criminal conspiracy? Yes. In
Bimbadhar Pradhan v. State of Orissa (1956 SC).
• 5 accused in this case [A,B,C, D & E]. C, D & E acquitted on ground
of alibi. B turned Government approver under Section 306 of CrPC
and grant pardon. Now A single tried and convict for conspiracy.
The court held that A alone convicted for criminal conspiracy.
• Thus, a person cannot alone be convicted for criminal conspiracy as
he cannot conspire with himself but if it is proved that the accused
had conspired with someone else even though that other person is
not in trial and cannot be convicted for some technical reason, a
single accused can be convicted for criminal conspiracy.
• E.g. A and B criminal conspired together. B absconded. Trial conduct
only against A and if it is proved that he was involved with B in
criminal conspiracy then he alone will be punished.
• A make an agreement as such to enter into a criminal
conspiracy with B who is of unsound mind. Here A took
defence that minor cannot give consent for any agreement.
In this case also, it will be seen whether A was agreed for
criminal conspiracy or not? If yes then he will be liable for
alone.
• Even an agreement with minor or unsound person will
amount to a criminal conspiracy and the fact that the minor
or unsound person technically was incapable of giving
consent and hence in the real sense no agreement could
have been formed, will not play any role and the other
party will be held liable for criminal conspiracy. [As a
matter of policy, he should be punished].
General and Particular Conspiracy
•
• Big Conspiracy (General)
A
• H B Conspiracy for let’s say A & B
G C
• F D (Particular)
E
• It may be possible that one of the group or
person have no link with other person and had
agreed with just one person. Even if they have
no knowledge of larger goal then also liable
for supplying weapons.
• Case: Nalini v. State of Tamil Nadu [1994 SC]- Rajeev
Gandhi Assassination case- It was held that even if a
person did not know all the details of the conspiracy
and did not know all the other members of conspiracy,
if he has engaged himself in some pert of the
conspiracy with the knowledge and intention of some
criminal purpose of the agreement then he will be held
liable for the main conspiracy.
• Common intention under section 120 A: There should
be distinct and express agreement. There should be
express exchange of communication.
• Common intention under section 34: can be even
through conduct at the spot.
• In those cases, where agreement was formed on
the spot by conduct and there was no distinct
formal entering into agreement by them, then
section 34 may apply but section 120A will not
apply. In order to make a person liable for
criminal conspiracy, it is essential that there
should be some proof of distinct oral or written
agreement between the parties by exchange of
communications to commit the wrong.
