Define: Abetment, Criminal Conspiracy, Affray, Unlawful Assembly and Criminal Intimidation.

Question: Define Abetment, Criminal Conspiracy, Affray, Unlawful Assembly and Criminal Intimidation — [U.P. J.S., 1997]

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Answer

I. Abetment

The meaning of abetment as has been given in Corpus Juris Secundum is:

“To abet has been defined as meaning to aid; to assist or to give aid; to command, to procure, or to counsel; to countenance; to encourage, counsel, induce or assist, to encourage or to set another on to commit.”

Section 107 of IPC provides for abetment of a thing and the ingredients required to constitute the abetment of such thing by a person are:

1. Instigation of another to commit such thing

The meaning of ‘instigate’ is to incite, urge, provoke or bring about by persuasion to do anything which the law prohibits. The act of instigating a person could take any form. It may be by conduct but there must be a proximate causal connection between instigation and the act committed as a result. The instigation must be related to the thing that was committed and not to the thing that was likely to have been done by the person in pursuance of the instigation.

2. Engaging with one or more persons to do that thing by conspiring

Commission of abetment by engaging with one or more persons in a conspiracy to commit an offence constitutes the offence of abetment by conspiracy.

It is important to note that conspiracy and abetment by conspiracy are distinct offences. Abetment by conspiracy requires that the act or illegal omission abetted must take place as a result of such conspiracy and thus mere agreement is not sufficient for conviction. However, in the case of criminal conspiracy, the very agreement or plot is the act to establish the conviction of the participants of the conspiracy.

3. Aiding by act or by illegal omission with an intention to do that thing:

A person who abets by intentionally aiding commits certain acts enumerated hereunder:

1. Doing an act directly assisting the commission of the crime
2. Illegally omitting to do a thing which one is bound to do
3. Doing an act that may facilitate the commission of a crime by another

The mere presence of the abettor is not sufficient to constitute the offence of abetment by intentional aid unless his presence is intended to have the effect of aiding. Also, if the person does not know about the offence being committed then his facilitation in doing the ‘thing’ does not amount to aiding.

An offence of abetment, therefore, may constitute instigation, intentional aid or conspiracy. This Section makes the abetment of a ‘thing’ an offence and not necessarily an abetment of an ‘offence’. This means abettor can be made solely liable in some cases, although the person who has been abetted may be completely innocent. It is important to note that the offence of abetment can only be established if the existence of men’s rea is proved. The provisions related to the offence of abetment require the presence of knowledge about the act and its effect thereof before a conviction can be made.

II. Criminal conspiracy

Section 120A of IPC provides a definition of criminal conspiracy as:

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 to section 120A: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

The main ingredients of section 120A, IPC, are:

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:

1. 1. an illegal act; or
   2. a legal act by illegal means.

The proviso to the section amplifies the scope of the liability as follows:

1. In the case of a conspiracy to commit an offence, the mere agreement is sufficient to impose liability without the requirement that some overt act in furtherance of the conspiracy should have been committed.
2. However, in the case of a conspiracy to do a legal act by illegal means, there ought to be some overt act that should have been committed by one or more parties to the agreement, apart from the agreement itself.

In Mohd. Khalid v. State of West Bengal [(2002) 7 SCC 334] and Devender Pal Singh v. State (NCT of Delhi) [AIR 2002 SC 1661 ] the Supreme Court of India, after referring to the law relating to conspiracy in the USA and the UK, summarized the broad essentials of criminal conspiracy in India thus:

1. an object to be accomplished;
2. a plan or scheme embodying means to accomplish that object;
3. an agreement or understanding between two or more of the accused persons whereby they become definitely committed to co-operating for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and;
4. an overt act, in pursuance of the agreement, in case of a non-offence act.

Thus, it is to note that the law of criminal conspiracy, as outlined in the IPC, takes the following two forms. They are:

1. where an overt act is not necessary and an agreement per se is made punishable; and
2. where overact is necessary.

In the former, a mere agreement to commit an offence (without proof of any overt act in pursuance thereof) amounts to criminal conspiracy. In the latter form, a mere agreement to do or cause to be done an illegal act (other than an offence) or a legal act by illegal means does not amount to a criminal conspiracy unless a party to the agreement commits some overt act in pursuance of the agreement.

III. Affray

Section 159 of IPC defines Affray as :

“When two or more persons by fighting in a public place, disturb the public peace, they are said to “commit an affray”.

It means that when two or more persons, by fighting in a public place, disturb the public peace, they are said to commit an affray. The offence of affray, as defined in section 159, IPC, postulates the commission of a definite assault or a breach of the peace.

Mere quarrelling or abusing in a public place without the exchange of blows is not sufficient to attract the application of section 160, IPC. To constitute affray there must be a fight and it is not a fight when one party is aggressive and the other one is passive. Both the parties need to participate in a struggle. Struggle implies that there are two sides each of which is trying to obtain mastery by violence.

From the above, it is clear that the section requires the following three essentials:

1. Fight between two or more persons;
2. fighting in a public place; and
3. disturbance of the public peace in consequence thereof.

The points that must be proved for convicting an accused on a charge of affray are:

1. that the accused and other persons were fighting;
2. that such a fight was in a public place; and
3. that the fight disturbed the public peace.

IV. Unlawful Assembly

Unlawful assembly is a legal term to describe a group of people with the mutual intent of deliberate disturbance of the peace. The definition of ‘unlawful assembly, according to Indian law, is laid down in Section 141 of the Indian Penal Code.

An unlawful assembly as per section 141 of Indian Penal Code, 1860 (IPC) means an assembly of 5 or more persons if the common object of the assembly is-

1. To overawe by using criminal force or show criminal force, to Central or any State Government or Parliament or any State Legislature or any public servant; or

2. To oppose the performance of any law or legal process; or

3. To carry out any mischief or criminal trespass or any other offence; or

4. By use of criminal force takes possession of any property or deprives any person of the right to the way or the use of water or any incorporeal right; or

5. The use or show of criminal force compels any person to do any illegal act.

In section 141 there has to be at least 5 members and should have any one or more than one common object as mentioned above, to constitute an unlawful assembly. The essence of section 141 requires 5 persons and their common object. Being simply present with other members without any common object does not amount to an unlawful assembly. The mere presence of any person in an assembly without any common object does not make him a member of the unlawful assembly.

In Bhanwar Singh v. the State of M.P.,[ (2008) 16 SCC 657] the court held that the common object of an unlawful assembly depends firstly on whether such object can be classified as one of those described under section 141; secondly, such common object need not be the product of prior concert but may form on spur of the moment, finally, nature of such common object is a question of fact to be determined by considering the nature of arms, nature of the assembly, behaviour of members etc. The common object essentially to be examined keeping in view the acts of the members and the surrounding circumstances of a particular case. Further, there is always a possibility that an assembly may be turned into an unlawful one.

V. Criminal Intimidation

The offence of criminal intimidation is defined under Section 503 of the Indian Penal Code, 1860. The provision states that anyone who threatens any other person on the following grounds is liable for criminal intimidation:

1. Threatens injury to his person;
2. Threatens injury to his reputation;
3. Threatens injury to his property;
4. Threatens injury to the person or reputation of anyone in whom the person is interested.

Further, the threat should be with intent to cause alarm to that person or to cause the person to do any act which he is not legally bound to do as a means of avoiding the execution of such threat, it could also be to cause that person to omit to do any act which the person is legally entitled to do as a means of avoiding the execution of such threat.

In simple words, this offence can be defined as if any person threatens another with injury to his person, property or reputation, and to avoid that, the other person is made to do an act he is not legally bound to do or omit to do.

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