Criminal Conspiracy – The Law and its applicability

Pavan Narang

“The mind was apt to take pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individuals, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete” – A warning addressed by Baron Alderson to the jury in Reg v. Hodge (1838) 2 Lew 227, on danger that conjecture or suspicion may take the place of legal proof.

“The conspirators invariably deliberately, plan and act in secret over a period of time. It is not necessary that each one of them must have actively participated in the commission of the offence or was involved in it from start to finish. What is important is that they were involved in the conspiracy or in other words, there is a combination by agreement, which may be expression or implied or in part implied…” Firozuddin Basheeruddin and others vs. State of Kerala, 2001 SCC (Crl) 1341.

“The offence of conspiracy to commit a crime is different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients they are, therefore quite separate offences.” [Leo Roy Frey V. Suppdt. Distt. Jail (AIR 1958 SC 119)].

“Acts subsequent to the achieving of the object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy.” State v. Nalini, (1999) 5 SCC 253

“The essential ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. – Rajiv Kumar v. State of U.P., (2017) 8 SCC 791

The above mentioned judicial pronouncements crystallize the law on criminal conspiracy as applicable in India.

Criminal conspiracy under the Indian Penal Code (IPC) is a substantive offence in itself and punishable separately. There have been rare instances where persons have been tried for commission of the substantive act of criminal conspiracy.

However, most commonly, the charge of criminal conspiracy is slapped on an accused person along with the charge of a substantive offence under the IPC or any other law which he may be accused of committing along with other co-conspirators.

Criminal conspiracy is hatched to commit an illegal act which is an offence punishable under law. It is not essential that the accused person must do an overt act, and mere agreement between two or more persons to commit an illegal act is sufficient to constitute the offence of criminal conspiracy. It is also not  necessary that the  object of the conspiracy should have been achieved for it to be considered as an offence. Even if the conspiracy fails on account of abandonment or detection before commission of offence, the very act of entering into an agreement by the co-conspirators is itself an offence and punishable under the law.

However, it has to be kept in mind that the standard of proof for the act of criminal conspiracy is the same as that of any other criminal offence i.e. beyond reasonable doubt.

In the case of State (NCT of Delhi) v. Navjot Sandhu, AIR 2005 SC 3820, it was held that:

“A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy”.

Also, in the case of State of Maharashtra & Ors. v. Som Nath Thapa &Ors., (1996) 4 SCC 659, it  was observed that:

“for a person to conspire with another, he must have knowledge of what the co-conspirators were wanting to achieve and thereafter having the intent to further the illegal act takes recourse to a course of conduct to achieve the illegal end or facilitate its accomplishment.”

In Subramaniam Swamy v. A Raja, (2012) 9 SCC 257, it was held that,

“suspicion cannot take the place of legal proof and existence of a meeting between the accused persons is not by itself sufficient to infer the existence of criminal conspiracy.”

But the use of the offence of criminal conspiracy in contemporary times by investigating agencies and courts is not in accordance with the above stated well-settled principles of law. This has resulted in dilution of the law  relating to criminal conspiracy.

In many cases today, the concept of ‘deemed presumption’ is applied, which is otherwise not available under the IPC. Undoubtedly, criminal conspiracies are hatched in secrecy and can only be perceived by actions of the participants, however that should not in any way dilute the standard of proof of “beyond reasonable doubt” that must be met by the prosecution.

It has never been easy to get direct evidence for proving an offence under Section 120-A, which defines criminal conspiracy. Considering this fact, Section 10 of the Indian Evidence Act comes into play.

This section can be divided into two parts: firstly where there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong. Only when this condition precedent is satisfied, the second part of the section comes into operation i.e. anything said, done or written by any one of such persons in reference to the common intention after the time when such intention was first entertained by any one of them is a relevant fact against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy.

It is therefore necessary that a prima facie case of conspiracy has to be established for application of Section 10. The second part of section permits the use of evidence which otherwise could not be used against the accused person. Sardar Sardul Singh Caveeshar v. State of Maharashtra [(1964) 2 SCR 378], is an authority on this issue.

The English rule on this matter is, in general, well settled. It is a common law rule. R.v. Blake illustrates the two aspects of it, i.e. what is admissible and what is inadmissible. What was held to be admissible against the conspirator was the evidence of entries made by his fellow conspirator contained in various documents actually used for carrying out the fraud. But a document not created in the course of carrying out the transaction, but made by one of the conspirators after the fraud was completed, was held to be inadmissible against the other.

The basic concepts of criminal conspiracy as enumerated above are losing their essence, resulting in misuse of this provision to the detriment of proper manifestation of law on this subject. It has been observed that trial courts in India are not following these principles. What is being done is that first they look for evidence which may be permitted under Section 10 of the Evidence Act and then apply it to the facts of a case to presume existence of criminal conspiracy.

It has to be ensured that all the stakeholders of the justice delivery mechanism do their duty diligently, and in a manner which is in consonance with the concept of criminal law as settled, followed and practiced.

The police and other investigating agencies, wanting to make someone an accused, in spite of a case having no evidence, use this age-old formula of invocation of Section 120-B IPC and bring all named in the charge sheet under its umbrella.

There have been numerous instances of such invocation of Section 120B IPC, like in the Indira Gandhi murder case, where Balbir Singh was convicted by the trial court. His conviction was upheld by High Court, but he was ultimately acquitted by the Supreme Court. In the Parliament House Attack case, the trial court convicted all the accused, but the High Court acquitted SAR Gillani and Afsan Guru. The Supreme Court ultimately upheld the judgment of the High Court for these two persons. Similarly, in the Jain Hawala case, the trial court framed charges against both VC Shukla and LK Advani along with the Jain Brothers. However, the High Court discharged them, an order which was confirmed by the Supreme Court by dismissing the appeal of the CBI.

Certain pressure groups in their zeal to prove their relevance, start exerting unnecessary pressure on our very robust and independent justice delivery mechanism. This should be shunned, otherwise there are chances of misuse or wrong implementation of the law of criminal conspiracy to achieve misplaced moral victories.

The well-established rule of criminal justice “fouler the crime higher the proof” should always be remembered and followed. This, in my belief, is still the hallmark of our superior courts, but we have to remain cautious and not allow it to get diluted, especially by our investigating agencies.

The author is a Delhi-based Litigation Counsel and an expert on economic offences. He can be reached at pavan.narang@gmail.com or 9810078924.