A and B exchange secret letters as to how best they can kidnap a minor girl and later give up the idea as impossible. Have they committed an offence?

Question: A and B exchange secret letters as to how best they can kidnap a minor girl and later give up the idea as impossible. Have they committed an offence? If either of them wrote a note to the girl persuading her to meet them at a specified place, what offences, if any, will both or either of them have committed? [HRJS, 2003]

Find the answer to the mains question only on Legal Bites. [A and B exchange secret letters as to how best they can kidnap a minor girl and later give up the idea as impossible. Have they committed an offence? If either of them wrote a note to the girl persuading her to meet them at a specified place, what offences, if any, will both or either of them have committed?]

Answer

Section 120A of IPC provides the 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.

The proviso to the section amplifies the scope of the liability as, In the case of a conspiracy to do an illegal act 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. Thus, IPC imposes liability of criminal conspiracy where the overt act is not necessary and an agreement per se is made punishable. It is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy.

In the present case, kidnapping of a minor girl from the lawful guardianship of the child is said to commit the offence of kidnapping of such minor or person from lawful guardianship as under Section 361 IPC. Hence the agreement to do the act was illegal and A and B can be solely tried on the basis of the agreement reach between them to commit the offence of kidnapping and thus are liable under Criminal Conspiracy, Section 120A of IPC.

It is said that a criminal conspiracy is a partnership in crime and that each conspiracy consists of a joint and mutual agency for the prosecution of a common plan. Everything said, written or done by any of the conspirators in the execution, or furtherance of the common purpose is deemed to have been said, done or written by each of them.

Now, the second proposition says that in pursuance of the agreement of A and B to commit the offence of kidnapping, if either of the two had done some overact like in the case if either of them wrote a note to the girl persuading her to meet them, both A and B will be held liable together for the act as if they have done it all. This is the principle of joint liability.

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