Even if the crime is not committed, the conspiracy itself leads to criminal liability, as planning or conspiring is treated as an offence.

Criminal conspiracy, as a concept, can be legally defined as a situation wherein two or more individuals collude together to accomplish any specific object through unlawful means or commit a criminal act together. It is a settled position of law that any conspiracy turns into an offence once such agreement between the individuals is duly formed, irrespective of the fact that whether any such specific object through unlawful means has been achieved, or any criminal act has been committed.

In other words, criminal conspiracy is a crime, which is inchoate, and is punishable even before the commission of any substantive crime.

The concept of Criminal Conspiracy holds significant value in criminal laws because it effectively prevents collective criminal conduct, thereby prescribing preventions and penal consequences, specifically in those cases wherein more than one individual is indulged in planning and coordinating any act, which is illegal and contrary to the law. This concept specifically intends to deter and penalise such collusive activities which can eventually result in enhanced dangers compared to the crimes committed by individual offenders.

Elements of Criminal Conspiracy

Criminal Conspiracy includes various essential elements which are conjointly referred to as prosecuting the offenders for the offence of criminal conspiracy. The components of criminal conspiracy primarily include the following:

1) Two or More Individuals: Any act of criminal conspiracy necessarily involves two or more individuals reaching an agreement for committing any act prohibited under the law, and merely reaching into such agreement is the crux of criminal conspiracy. No overt act in subsequence to such agreement is required in most cases.

2) Illegal Object or Illegal Means: It is pertinent to highlight that for an agreement to constitute a criminal conspiracy, it must be directed towards the commission of an illegal act. Alternatively, if the agreed-upon act itself is legal, its execution must involve illegal means. Such an illegal act can constitute a crime under the penal code, i.e., the Bharatiya Nyaya Sanhita (formerly the Indian Penal Code).

3) Common Intention: In addition to the agreement for committing an offence and having illegal objects/means, the individuals indulged in the criminal conspiracy should have a common intention toward committing the illegal act. While the co-conspirators don't need to perform a similar role/act in the conspiracy, the involvement of conspirators towards the commission of a crime must be with common intention, which should be duly established during the prosecution of conspirators.

4) Overt Act: While the offences such as abetment, necessarily involve an overt act, the criminal conspiracy only requires the co-conspirators to reach an agreement, and the same is assumed to be committed at that point itself. However, it is equally important to highlight here that in the erstwhile criminal law regime, the commission of overt acts used to be considered in cases wherein, the penal consequences following the commission of the act is less than the imprisonment of two years.

Legislative Provisions Governing Criminal Conspiracy (Old v. New)

Before the introduction of Bhartiya Nyaya Sanhita (BNS), the concept of criminal conspiracy was primarily governed under Sections 120A and 120B of the erstwhile Indian Penal Code 1860(“IPC”). Section 120A of the IPC prescribed the definition of criminal conspiracy and the elements involved therein.

According to Section 120B of the IPC, a person involved in a conspiracy to commit a serious offence, such as one punishable by death, life imprisonment, or rigorous imprisonment of at least two years, will face the same punishment as an abettor if no specific penalty is provided in the Code. For lesser conspiracies, the punishment may be up to six months' imprisonment, a fine, or both.

The advancements of modern criminal activities such as digital conspiracies, financial frauds etc. highlighted those limitations of the provisions prescribed under IPC in dealing with such provisions and prompted the introduction of legislative reform in the criminal laws for not only updating the law but also allowing appropriate preventive response to such modern crimes, much before any overt act has been committed.

After the introduction of Bhartiya Nyaya Sanhita, the shortcomings of Section 120A and 120B of the IPC were duly addressed vide Section 61 of the Bhartiya Nyaya Sanhita, thereby allowing law enforcement agencies to tackle modern criminal conspiracies more effectively.

Section 61 of the BNS defines Criminal Conspiracy:

"(1) When two or more persons agree with the common object to do, or cause to be done–– (a) an illegal act; or (b) 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. (2) Whoever is a party to a criminal conspiracy,––

(a) to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Sanhita for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence;

(b) other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.”

The aforesaid provision regarding criminal conspiracy not only addresses the underlying complexities of modern criminal activities, but it also allows the enforcement agencies to tackle emerging threats such as cyber conspiracies and terrorism to workplace fraud and identity theft, which could not be effectively dealt with in the erstwhile penal code.

By specifically eliminating the elements of overt act and further expanding the ambit of conspiracy, Section 61 duly ensures that the legal system intervenes and takes necessary actions against the conspirators at the planning stage itself, thereby providing better protection for all the members of society as a whole.

Judgments Relating to Criminal Conspiracy

The Court of India, including the Hon’ble Supreme Court of India, have time and again analysed the aspects of the Criminal Conspiracy. Some of the leading landmark judgments relating to criminal conspiracy are discussed as under:

a. Kehar Singh & Ors v. State (Delhi Administration), (1988)

In this case, the Hon’ble Supreme Court, while deciding the role of the Petitioner i.e, Kehar Singh, who was accused of conspiring the assassination of Mrs. Indira Gandhi held that it is crucial to consider the circumstantial evidence, even if the same has no direct nexus with the criminal act, since the conspiracy is rarely proved by direct evidence. The Hon’ble Court held Mr Singh liable for conspiracy, having sufficient evidence of an agreement between the parties.

b. Ram Narayan Popli v. Central Bureau of Investigation, (2003)

In this case, the Hon’ble Supreme Court held conspiracy as a clandestine activity and reaffirmed its position that criminal conspiracy can be identified through the chain of circumstances coupled with consistent behaviour of the conspirator even if there is no direct evidence of the agreement between the conspirators.

c. Yakub Abdul Razak Memon v. State of Maharashtra, (2013)

In this case, the Hon’ble Supreme Court upheld the Order for conviction of Yakub Menon, observing that he played a crucial role in financing and facilitating the execution of the conspiracy, despite not being directly involved in planting bombs in the Mumbai blasts. The Hon’ble Supreme Court categorically held that the smallest role in facilitating a conspiracy can also attract criminal liability.

Conclusion

Criminal Conspiracy is a complex offence which includes multiple individuals working together toward a common illegal goal i.e., an organized criminal activity. It is that crucial aspect of criminal laws, which needs to be thoroughly introspected to ensure that organized criminal activities are effectively deterred and punished.

Indian courts have thoroughly interpreted the erstwhile legislative regime about criminal conspiracy vide various landmark judgments, and have laid down critical principles concerning conspiracy, and it is a settled position of law that even the smallest role in the formation of an agreement can result in criminal liability for conspiracy, which is often proven through circumstantial rather than direct evidence.

While Section 61 of the Bharatiya Nyaya Sanhita, deals with criminal conspiracy to a great extent, it will be crucial for the Indian Courts to interpret it further, to ensure that any criminal conspiracy resulting in organized criminal activities is effectively deterred and punished.

References

[1] Bharatiya Nyaya Sanhita, 2023, Available Here

[2] Manjari Singh, Analytical Study of Criminal Conspiracy, Available Here

[3] Amit Pandey and Himanshu Singh, Offence of criminal conspiracy under Indian criminal Law, Available Here

[4] Kritika Thakur and Nishchay Dutt, Evolution of Law Of Criminal Conspiracy In India, Available Here

[5] Kehar Singh & Ors v. State (Delhi Administration), 1988 SCC (CRI) 711

[6] Ram Narayan Popli v. Central Bureau of Investigation, AIR 2003 SC 2748

[7] Yakub Abdul Razak Memon v. State of Maharashtra, [2013] 15 S.C.R. 1

Snehil Sharma

Snehil Sharma

Snehil Sharma is an advocate with an LL.M specializing in Business Law. He is a legal research aficionado and is actively indulged in legal content creation. His forte is researching on contemporary legal issues.

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