Questions and answers on law (Part 91)

 Q  When A B &C conspires , B and C having a separate communication, can A be held liable? 

Ans:- Yes—A can be held liable, but only if the prosecution proves that A was a party to the same agreement or common design; the mere fact that B and C later had a separate communication does not by itself make A liable for everything said or done between them. Under Section 120A IPC, the essence of criminal conspiracy is the agreement of two or more persons to do an illegal act, or a legal act by illegal means, and Section 120B IPC punishes anyone who is a party to that conspiracy.

Core principle

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Kerala HC: Under which circumstances prime facie case for offence under NDPS Act is made out against accused even if no contraband is seized from his possession

 The offences alleged against the petitioner include the offence under Section 29 of the NDPS Act. Section 29 of the NDPS Act reads as follows:

29. Punishment for abetment and criminal conspiracy.

(1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence.

(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which-

(a) would constitute an offence if committed within India; or

(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India."

9. A perusal of the same would show that an accused can be prosecuted even if no contraband is seized from him, provided there is evidence to show that there is abetment and criminal conspiracy. In other words, the Section would show that the actual possession of the contraband is not necessary to convict a person for the offences under the NDPS Act. If abetment and criminal conspiracy are proved, the accused can be convicted.

10. In this case, there is a telephonic conversation between the 1st accused and the petitioner. The prosecution alleges that there is a conspiracy between accused Nos. 1 and 2. When such a case is put up by the prosecution, this Court cannot observe that there is no prima facie case against the petitioner, while considering a bail application. It is a matter of evidence. A bail court need not consider the admissibility of the call details produced by the prosecution to prove conspiracy and abetment in all cases.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl. No. 2181 of 2025

Decided On: 20.02.2025

Anzar Azeez Vs. State of Kerala and Ors.

Hon'ble Judges/Coram:

P.V. Kunhikrishnan, J.

 Citation: 2025/KER/15357, MANU/KE/0765/2025

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Separate Charge Framing for Criminal Conspiracy: Understanding the Distinction Between Section 120B and Substantive Offences in Indian Criminal Law

 Introduction

One of the fundamental principles in criminal jurisprudence is that "for every distinct offence there shall be a separate charge and every charge should be tried separately." This principle becomes particularly significant when dealing with criminal conspiracy under Section 120B of the Indian Penal Code (IPC) alongside substantive offences. The question of whether conspiracy charges should be framed separately from the main offence has been a subject of considerable legal discourse, with courts consistently establishing that these constitute fundamentally different offences requiring separate treatment.

The Legal Foundation for Separate Charges

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How to prove criminal conspiracy in criminal case?

 The offence of criminal conspiracy can be proved by either direct or circumstantial evidence. However, conspiracy is usually hatched in a secret and private setting which makes it almost impossible to produce any affirmative evidence about the date of formation of the criminal conspiracy, the persons involved, or the object of such conspiracy. Due to this secretive nature, criminal conspiracy is primarily based on circumstantial evidence as direct evidence is rarely available.

Essential Elements to Establish Conspiracy

To prove criminal conspiracy under Indian law, the prosecution must establish certain fundamental elements:

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What is basic concept of criminal conspiracy and common intention and difference between them?

 In Indian law, criminal conspiracy and common intention are two distinct legal concepts, though they often intersect in criminal cases. Here's a breakdown of each term:

1. Criminal Conspiracy:

   Criminal conspiracy is defined under Section 120-A of the Indian Penal Code (IPC). It involves an agreement between two or more persons to commit an illegal act or an act that is not illegal by illegal means. The essence of conspiracy lies in the agreement itself, irrespective of whether the actual criminal act is committed or not.

   Key points about criminal conspiracy:

   • The agreement can be either explicit or implicit.
   • Each conspirator need not participate in every detail of the conspiracy; they may have different roles and responsibilities.
   • The act need not be committed to establish the offense of conspiracy; the agreement itself is punishable.

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Can the court convict the accused for an offence of criminal conspiracy if there is no physical manifestation of agreement to commit the crime?

Apart from the fact that the Appellant by himself could not have operated the strong room and the safe of the Bank without the presence of the officer who was in the custody of the other set of keys, it is also important to note that the prosecution completely failed in adducing any evidence to indicate the existence of any agreement between the Appellant on the one hand and A-1 and A-2 on the other. The link necessary for proving the charge of conspiracy is entirely missing. {Para 21}

22. The principal ingredient of the offence of criminal conspiracy Under Section 120B of the Indian Penal Code is an agreement to commit an offence. Such an agreement must be proved through direct or circumstantial evidence. Court has to necessarily ascertain whether there was an agreement between the Appellant and A-1 and A-2. In the decision of State of Kerala v. P. Sugathan and Anr. MANU/SC/0601/2000 : (2000) 8 SCC 203, this Court noted that an agreement forms the core of the offence of conspiracy, and it must surface in evidence through some physical manifestation:

12. ...As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the Accused beyond reasonable doubt. ...A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the Accused with the commission of the crime of criminal conspiracy...

13. ...The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient...

(emphasis supplied)

23. The charge of conspiracy alleged by the prosecution against the Appellant must evidence explicit acts or conduct on his part, manifesting conscious and apparent concurrence of a common design with A-1 and A-2. In State (NCT of Delhi) v. Navjot Sandhu MANU/SC/0465/2005 : (2005) 11 SCC 600, this Court held:

101. One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the Accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1066 of 2010

Decided On: 25.08.2022

 Ram Sharan Chaturvedi Vs.  The State of Madhya Pradesh

Hon'ble Judges/Coram:

B.R. Gavai and Pamidighantam Sri Narasimha, JJ.

Author: Pamidighantam Sri Narasimha, J.

Citation: MANU/SC/1048/2022

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Whether court can hold a person guilty for criminal conspiracy if supplies Sim Card to other accused?

  The role of the appellant

mentioned by the prosecution is that the

appellant facilitated procurement of SIM

card on the request made by accused-Ashok

Jatav. This sim card, it is stated, was

allegedly used by accused Ashok Jatav and

his colleagues in the commission of

offence of kidnapping. Hence, the

appellant was a member of the conspiracy

to commit the offence of kidnapping.

5. The question would be whether the

appellant (Mohan) was a party to the

agreement to do or caused to do the

illegal act of kidnapping to be a member

of the criminal conspiracy. We are aware

of the Explanation to Section 120A but in

the facts of the present case, the legal

effect of the Explanation in the light of

the evidence has to be examined.

Conspiracy cannot be assumed from a set of

unconnected facts or from a set of conduct

at different places and times without a

reasonable link. Learned counsel for the

appellant, in this regard has highlighted

that there is no substantial evidence to

indicate that the appellant was aware that

the sim card would be later on or was

likely to be used in the commission of the

offence of kidnapping which the appellant

has been tried.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 630 OF 2020

MOHAN  Vs STATE OF MADHYA PRADESH 

Dated: SEPTEMBER 24, 2020

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Important Notes on Indian Penal Code

1) Notes on S 34 and S149 IPC- Principle of constructive liability

https://www.lawweb.in/2018/08/notes-on-s-34-and-s-149-ipc-principle.html

2) Notes on offence of Forgery

https://www.lawweb.in/2018/08/notes-on-offence-of-forgery.html

3) Notes on offence of Mischief and Criminal Trespass

https://www.lawweb.in/2018/08/notes-on-offence-of-mischief-and.html

4) Notes on offence of receiving of stolen property

https://www.lawweb.in/2018/08/notes-on-offence-of-receiving-of-stolen.html

5)Notes on offence of Mischief and Criminal Trespass

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Whether agreement to commit offence is an offence even if no offence is committed?

Criminal conspiracy postulates an agreement between two or more persons to do, or cause to be done an illegal act or an act which is not illegal, by illegal means. It differs from other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 24 of 1968

Decided On: 24.03.1970

Noor Mohammad Mohd. Yusuf Momin  Vs. The State of Maharashtra

Hon'ble Judges/Coram:

A.N. Ray, I.D. Dua and M. Hidayatullah, JJ.

Citation : (1970 )1 SCC 696

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Whether agreement to commit an act which furnishes ground for civil action amounts to criminal conspiracy?

Section 120A in The Indian Penal Code

[120A. 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.]

Illegal Act

According to the Indian Penal Code, the term, ‘illegal’ includes everything that is an offence, or which furnishes a ground for civil action or which is prohibited by law.Hence, two or more persons would be held guilty under this provision if they agree to do an act prohibited by law or which is illegal or gives a ground for a civil action..

Apart from acts which are prohibited by law, acts that may be grounds for civil actions could be-

1. Breaches of contract; or
2. Wrongs independent of contract

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Notes on Criminal Conspiracy

S 120 A Criminal Conspiracy

When two or more persons agree to do or cause to be done-

a) an illegal act,or

b) a legal act by illegal means-

such an agreement is called a criminal conspiracy.

Mere agreement to commit an offence amounts to criminal conspiracy and is therefore an offence.Gist of offence of conspiracy is the bare agreement to break the law.

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Whether offence committed at two different places may form part of same criminal conspiracy?

Section 223(d) of the Code of Criminal Procedure, 1973 clearly provides that persons accused of different offences committed in the course of the same transaction can be charged and tried together. On the other hand, the judgment relied upon by the learned counsel for the petitioner, in my considered view, has no application in the peculiar facts of the present case, because therein the Hon'ble Supreme Court was dealing with an issue that goods in the possession of a person who is not lawfully in possession of them, cannot be seized except under authority of law. In the present case, the facts are that a person was held by the police of Police Post Manikaran from whose possession, heroin was recovered and in the course of investigation, he disclosed that he had purchased the same from the present petitioner and further, in the course of investigation, 1 Kgs. and 500 of heroin was recovered from the residence of the petitioner at New Delhi. Therefore, the judgment cited by the learned counsel for the petitioner is of no assistance.

In the High Court of Himachal Pradesh at Shimla

(Before Ajay Mohan Goel, J.)

Okechuku Mathew .v. State of Himachal Pradesh 

Cr. MP(M) No. 1530 of 2017

Decided on December 29, 2017

Citation: 2017 SCC OnLine HP 1809

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What are limits of joint trial of criminal cases?

 This Court in Natwar Lal Sakar Lal Mody v. The State of Bombay 26 (1984) DLT 64 considered the question of joint trial of persons and offences for conspiracy as per provisions contained in Section 239(d) of the old Code of Criminal Procedure. This Court has laid down that separate trial is the Rule and joint trial is an exception. Joint trial would be an irregular exercise of discretion if a court allows innumerable offences spread over a long period of time and committed by a large number of persons to be under the protecting wings of an all-embracing conspiracy, and if each or some of the offences can be separately tried, it would be appropriate and lawful. Joint trial prolongs the trial and causes waste of judicial time and complicates the matter which might otherwise be simple, and it would confuse the Accused and cause prejudice to them. Court should not be overzealous to provide a cover of conspiracy for a number of offences unless it is satisfied that the persons who committed separate offences were parties to the conspiracy and committed the separate acts pursuant to conspiracy. This Court has laid down thus:

11. This discussion leads us to the following legal position. Separate trial is the Rule and joint trial is an exception. While Section 239 of the Code of Criminal Procedure allows a joint trial of person and offences within defined limits, it is within the discretion of the Court to permit such a joint trial or not, having regard to the circumstances of each case. It would certainly be an irregular exercise of discretion if a Court allows an innumerable number of offences spread over a long period of time and committed by a large number of persons under the protecting wing of all-embracing conspiracy, if each or some of the offences can legitimately and properly form the subject-matter of a separate trial; such a joint trial would undoubtedly prolong the trial and would be a cause of unnecessary waste of judicial time. It would complicate matters which might otherwise be simple; it would confuse Accused and cause prejudice to them, for more often than not Accused who have taken part in one of the minor offences might have not only to undergo the long strain of protracted trial, but there might also be the likelihood of the impact of the evidence adduced in respect of other Accused on the evidence adduced against him working to his detriment. Nor can it be said that such an omnibus charge or charges would always be in favour of the prosecution for the confusion introduced in the charges and consequently in the evidence may ultimately benefit some of the accused, as a clear case against one or other of the Accused may be complicated or confused by the attempt to put it in a proper place in a larger setting. A Court should not be overzealous to provide a cover of conspiracy for a number of offences unless it is clearly satisfied on the material placed before it that there is evidence to prove prima facie that the persons who committed separate offences were parties to the conspiracy and they committed the separate acts attributed to them pursuant to the object of the said conspiracy.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 394, 393 and 395 of 2017

Decided On: 08.05.2017

State of Jharkhand through S.P., CBI Vs. Lalu Prasad and Ors.

Hon'ble Judges/Coram:

Arun Mishra and Amitava Roy, JJ.

Citation:(2017) 8 SCC1

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What are essential requirement for prosecution of a person on allegation of criminal conspiracy?

I find that as regards the accused Nos.8 to 12, who are being prosecuted on the allegation of criminal conspiracy, things are not quite clear. It is settled that even knowledge of the criminal design may not be sufficient to prosecute a person on the allegation of criminal conspiracy. What is required is active meeting of minds to carry out a criminal design. Such elements are, to a small extent, doubtful in the case of the accused Nos.8 to 12. But, clear circumstances including direct evidence are there as against the accused Nos.1 to 7. But the accused Nos.8 to 10 can be granted bail on conditions, because the allegation as against them is a feeble allegation of criminal conspiracy. Definite materials are not there to indicate that these three persons had active meeting of minds with the others, constituting a clear case of criminal conspiracy.

Kerala High Court

RINEESH N.P,vs  STATE OF KERALA,

PRESENT: MR. JUSTICE P.UBAID

Bail Appl..No. 6287 of 2017

 Dated: 27th day of September 2017

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Landmark Supreme Court judgment on conspiracy in criminal case

We find from the judgment that the Courts below have committed an error in first holding the existence of conspiracy and proceeding on that basis and then taking tit-bits in evidence to suggest that those tit-bits would connect the accused with the conspiracy as the conspirators. The law on conspiracy has been stated time and again by this Court. In Major E.G. Barsay v. State of Bombay reported in AIR 1961 SC 1762, Subba Rao, J. observed:

"The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act."

In Halsbury's Laws of England the definition of conspiracy is as under:

"Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied or in part express and in part implied.. and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be".

In American Jurisprudence, 2nd Edn., Vol.16, Page 129, the following definition of conspiracy is given: "A conspiracy is said to be an agreement between two or more persons to accomplish together a criminal or unlawful act or to achieve by criminal or unlawful means an act not in itself criminal or unlawful ... The unlawful agreement and not its accomplishment is the gist or essence of the crime of conspiracy." Lastly, in celebrated case of Kehar Singh & ors. v. State (Delhi Administration) [1988 (3) SCC 609] it was observed by Jagannatha Shetty, J.:

"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough" (emphasis ours) In the celebrated judgment of State v. Nalini & Ors. [1999 (5) SCC 253] S.S.M. Mohd. Quadri, J. relying upon Van Riper vs. United States (13 F 2d. 961) (2 nd Cir, 1926) observed:

"When men enter into an agreement for an unlawful end, they become ad hoc agents for one another and have made a partnership in crime."

Other celebrated decisions on the question of conspiracy are Yashpal Mittal v. State of Punjab [1977 (4) SCC 540] as also the State of Himachal Pradesh v. Krishan Lal Pradhan & Ors. [1987 (2) SCC 17]. It has been held in Mohd. Khalid v. State of West Bengal [2002 (7) SCC 334] and in Mohammed Usman Mohd. Hussain Maniyar v. State of Maharashatra [1981 (2) SCC 443] that the agreement amongst the conspirators can be inferred by necessary implication. All these cases together came to be considered in State of NCT of Delhi v. Navjot Sandhu @ Afsan Guru[2005 (11) SCC 600] where even the celebrated judgments of V.C. Shukla vs. State [1980 (2) SCC 665], came to be considered wherein it was observed by Fazal Ali, J.:

"In most cases it will be difficult to get direct evidence of the agreement, but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence."

56. It is significant at this stage to note the observations in V.C. Shukla (cited supra) wherein it was laid that in order to prove criminal conspiracy, there must be evidence direct or circumstances to show that there was an agreement between two or more persons to commit an offence. It was further held that there must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of the offence and where the factum of conspiracy is sought to be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. Relying on that, Pasayat, J. in Esher Singh v. State of A.P. [2004 (11) SCC 585] observed that the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in point of time than the actual commission of the offence in furtherance of the alleged conspiracy.

57. In Esher Singh's case (cited supra) this Court held that the conspiracy was proved between the nine accused. A systematic role played by each accused was highlighted. Pasayat, J. in that judgment also considered the decision in Bhagwan Swarup Lal Bishan Lal etc.etc vs. State of Maharashtra [AIR 1965 SC 682] and observed that there is no difference between the mode of proof of the offence of conspiracy and that of any other offence. The other decisions in State of Maharashtra v. Som Nath Thapa [JT 1996 (4) SC 615]), Ajay Aggarwal v. Union of India & Ors. [1993 (3) SCC 609] as also Mohd. Usman's case (cited supra) and Yashpal Mittal (cited supra) were considered in that decision. The law laid down in Ajay Agrawal's case (cited supra) was reiterated and it was held that it is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements: (1) agreement; (2) between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. These decisions were thereafter considered in Navjot Sandhu's case (cited supra). In K.R. Purushothaman v. State of Kerala [2005 (12) SCC 631] a specific observation was made to the effect that all conspirators need not take active part in the commission of each and every conspiratorial act but, mere knowledge, even discussion, of the plan would not constitute conspiracy. It was further observed that each one of the circumstances should be proved beyond reasonable doubt and such circumstances proved must form a chain of events from which the only irresistible conclusion is about the guilt of the accused which can be safely drawn and no other hypothesis of the guilt is possible. We respectfully agree with the law laid down in Navjot Sandhu's case and K.R. Purushothaman's case.

Supreme Court of India

John Pandian vs State Rep.By Inspector Of ... on 3 December, 2010

Author: V Sirpurkar

Bench: V.S. Sirpurkar, Cyriac Joseph

Read full judgment here; click here

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Whether mere agreement to commit offence constitute offence of criminal conspiracy?

 In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600, this Court after analyzing the history of the offence of conspiracy held as follows:

88. Earlier to the introduction of Sections 120-A and 120-B, conspiracy per se was not an offence under the Penal Code except in respect of the offence mentioned in Section 121-A. However, abetment by conspiracy was and still remains to be an ingredient of abetment under clause secondly of Section 107 IPC. The punishment therefor is provided under various sections viz.Sections 108 to 117. Whereas under Section 120-A, the essence of the offence of criminal conspiracy is a bare agreement to commit the offence, the abetment under Section 107 requires the commission of some act or illegal omission pursuant to the conspiracy. A charge underSections 107/109 should therefore be in combination with a substantive offence, whereas the charge under Sections 120-A/120-B could be an independent charge.

89. In the Statement of Objects and Reasons to the Amendment Bill, it was explicitly stated that the new provisions (120-A and 120-B) were "designed to assimilate the provisions of the Penal Code to those of the English Law....". Thus, Sections 120-A and 120-B made conspiracy a substantive offence and rendered the mere agreement to commit an offence punishable. Even if an overt act does not take place pursuant to the illegal agreement, the offence of conspiracy would still be attracted. The passages from Russell on Crimes, the House of Lords decision in Quinn v. Leathem and the address of Willes, J. to the Jury in Mulcahy v. R. are often quoted in the decisions of this Court. The passage in Russell on Crimes referred to by Jagannatha Shetty, J. in Kehar Singh case (SCC at p. 731, para 271) is quite apposite:

"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough."

Supreme Court of India

R.Dineshkumar@Deena vs State Rep. By Inspector Of Police ... on 16 March, 2015

Bench: J. Chelameswar, C. Nagappan

Read full judgment here; click here

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