Essay: The Law of Conspiracy (India)

INTRODUCTION
Etymologically the word ‘conspiracy’ means ‘breathing together’ and people can’t breathe together unless they put their heads together. Conspiracy is to combine privily for an unlawful purpose. It is to devise or build a plot in order to reach some end whereby the end itself or the means employed are unlawful. And any conspiracy committed whose end or means is a subject of criminal law is said to be ‘criminal conspiracy’.
As the Indian Penal Code came into existence in 1860 it originally did not contain the offence of criminal conspiracy. Though a mention was found Under Section 107, which related to Abetment. In ‘secondly’ of that section a person was said to have abetted the offence if he conspires with another to do or cause to be done any offence. But the law of criminal conspiracy as it exists today is remarkably different from the contents and implications of this section.
It was finally in the year 1913 that an Amendment was brought into force vide the Amendment Act VIII of 1913 which introduced a new chapter in the Indian Penal Code exclusively for the offence of Criminal Conspiracy titled “CRIMINAL CONSPIRACY” under CHAPTER – VA of the Indian Penal Code. The chapter contained merely two provisions, Section-120A and Section-120B. Whereby the former provision provides for the definition, meaning and scope of the offence of criminal conspiracy, the latter provides punishment for the same. Together these two provisions complete the chapter on conspiracy and though short in length they are a comprehensive law on the offence of criminal conspiracy.
It shall be worth mentioning that while the new law was introduced in the year 1913, the English law had for a long time been containing the amended version as its codified public law. The object of bringing about an Amendment was to bring the Indian Law in line with the English Law as it was considered a need of the hour then by the British Administration in India. The Empire of the Queen which had conquered India and added it in its Imperial States was facing various revolts and uprisings for the want of independence. Of those freedom fighters, many employed extremist ways and the British Judicial System in India found itself helpless, as the given provision Under Section 107 IPC was not good enough to curb those activities.
Amendment Act of 1913
The Amendment Act as got published in the Gazette of India, 1913,Part V p.44
read as follows:
“Experience has shown that dangerous conspiracies are entered into in India which have for their object, aims other than commission of the offence specified in Section-121 A1of the Indian Penal Code and that the existing law is inadequate to deal with modern conditions. The present Bill is designed to assimilate the provisions of the Indian Penal Code to those of the English Law with the additional safeguard that in case of a conspiracy other than a conspiracy to commit any offence, some overt act is necessary to bring the conspiracy within the purview of criminal laws. The Bill makes criminal conspiracy a substantive offence and when such a conspiracy is to commit an offence punishable with death, transportation of rigorous imprisonment for a term of two years or more, and no express provision is made in the Code, provides a punishment of the same nature as that which might be awarded for the abetment of such an offence. In all other cases of criminal conspiracy the punishment contemplated is imprisonment of either description for a term not exceeding six months or fine or both.”
Thus, from the above it is very clear that the igniting factor behind the induction of this law in the code was the growing acts of extremism or terrorism initiated by our freedom fighters against the British Empire. For almost a century now, the law on this subject holds goods and the provision has not been in any way altered, modified, repealed as it is now an integral part of our criminal judicial system. The provision exists as it was and its interpretation also to a larger extent is the same as it was then.
The section was predominantly included to check every act of war whether by insurrection or invasion which we proudly call our struggle for independence. The British Government now regarded everyone a terrorist who acted in defiance of its sovereignty and treated such person as if he were a foreign enemy causing internal violence or disturbance with the intention to overawe, creating apprehension of alarm or fear.
The Amendment in effect brought about two vital changes in the state of law :-
(i) Punishments provided vide Section-120B for all criminal conspiracies, whether an overt act has or has not taken place in pursuance of such conspiracy.
(ii) A conspiracy to commit not only criminal offences but even non-criminal civil wrongs was made punishable if the overt act occurs.
Of these two charges the first being the more important and highlighting one provides that any act of combination or agreement between persons to commit an offence is itself punishable irrespective of whether the actual act for which the agreement was entered into takes place or not. The change brought about by this is remarkable. Now, the incriminating factor is no longer the actual act, but the act of agreement. The second change contemplated under the section is that conspiracy not only to commit offences is punishable but even a conspiracy to commit a civil wrong viz. breach of contract or tort is punishable, however, for the offence to be complete it is necessary that the overt act i.e. such breach of contract or tort must have occurred even if slightly and not completely to bring the section into effect.
OBJECT FOR LAW
It is necessary that before discussing the bare provision, one must comprehend the rationale behind the law. What is stated above with respect to the introduction of the provision in the Act, is the motive of the British Government. But, mere induction of a provision does not render it to be just, fair and reasonable. The reasoning behind the law must be intelligible for it to continue being a law. And in case of criminal conspiracy this intelligibility has to be established beyond every conceivable doubt, as it is remarkably different from other laws and offences fundamentally, which could afford an opportunity for its interpretation in a draconian manner.
Defining the object for the law on criminal conspiracy an American Court beautifully held that –
“Law making conspiracy a crime is designed as a curb to the immoderate power to do mischief which is granted by a combination of means.”2 The principle behind the law is that, the encouragement and support which co-conspirators give or one another rendering enterprise possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment.
The logic understood hereby is that –
“Prevention is better than cure”. The provision is a preventive step; if a conspiracy comes to the knowledge of the judicial authorities before its object is achieved, unlike Pre-1913, the court can prosecute the conspirators straightway. Instead of taking a remedial measure after the object of the conspiracy has been already established and an offence has lead to victimization of someone, the courts are now amply empowered to prosecute the conspirators and punish them even before they make any step in furtherance of the offence intended to be committed. The provision hits the very root of the offence and punishes for the same. No law provides that a person may be punished for bearing any ill will or malice in his mind, as the same could never be proved. No one can peek into the brain of another person and gather one’s intentions. But the law on conspiracy is correct in punishing for an agreement to commit the offence because when two persons mutually agree on furthering an object which is unlawful in nature they make their intentions somewhat known. The court cannot be a mute and helpless spectator if it has knowledge of an evil scheme being laid out against someone. The law on criminal conspiracy has armed the judiciary to put a halt to such a scheme or ploy if it has ample proof in its existence. The judiciary is no longer a passive authority, which is to wait till the actual offence is caused, but has an active and fundamental role to play in any organized society of human guided by laws. The law prior to the amendment was such that even if the existence of a design or combination to commit an offence was acknowledged, the courts had no powers, jurisdiction whatsoever to prevent such an offence to occur by bringing the conspirators to justice. This is because the law on conspiracy as given under Section 107 ‘secondly’ required mandatory overt act to have been committed. But since the Amendment of 1913 this necessity of the occurrence of the overt act has been done away with by bringing about an entirely new genus of offence viz. criminal conspiracy.
It is because of the utility of this law that even after 59 years of independence, the Indian Parliament or the Judiciary has not in any way modified or altered the definition, scope or effect of the provision. Nor it is expected to undergo any change in the future. This fact itself establishes the requirement and utility of the law of conspiracy under which lots of convictions have taken place as yet. The existence of the law for almost 60 years without any modulation whatsoever in the world’s largest democracy with over a billion’s population itself justifies the object and rationale of the provision. The intelligibility of this law has never been questioned. Its interpretation however, may have been subject to some flexibility as law changes with the society. As and when required, as per the need of the hour, the courts have taken stricter or lenient interpretation of the law, but mostly since conspiracy is a penal offence subjected it to a much stricter and literal interpretation.
The crime of conspiracy affords support for any who advance the proposition that criminal law is an instrument of government.
ORIGIN & HISTORY OF THE OFFENCE OF CONSPIRACY
It has been already traced that the offence of criminal conspiracy was introduced to Indian Judicial system by the British Government ruling India. Now, we shall discuss the origin and development of the law on conspiracy from its nascent stage to its adulthood.
Conspiracy is an offence peculiar to the English Law and its present form has been gradual and marks three distinct stages in its evolution. In its first stages [A.D. 1290 – A.D. 1611] the offence, though formulated at common law, appears to have been confined to a conspiracy to obstruct or prevent or defeat or delay justice, or to exhort under colour of offence, and even as such it remained without any adequate sentence. The offence however, assumed a more concrete form in A.D. 1611 when in a decided case, it was for the first time settled that the agreement for conspiracy was indictable as a substantive offence even when nothing had been done to execute it.3
The third and final stage in the development was reached some years later in A.D. 1665. Then the Judges declared that “all confederacies whatsoever wrongfully to prejudice a hired person are highly criminal”. This has since been held to include all combinations which involve violation of the private rights of individuals, which, if done by a single person would give a civil though not a criminal remedy against the delinquent. Sir Robbert Wright thinks that the inception of this development may be traced to the misunderstanding of a leading case by Hawkins4, which lead to a crop of cases without adequate examination of the data upon which it was founded. He analyses the decisions to show that, as a general rule, a combination to injure a private person is not criminal unless the means to be employed are criminal, that is, in other words, conspiracy as such is not punishable save when it is conspiracy to commit a crime. Modern legal opinion indorses this view, but against it there is the accumulated weight of decided cases though they are by no means unanimous, some still confining the operation of the rule to conspiracy to commit an offence. The English parentage ascribed to this chapter, so far as it relates to the conspiracy to do an illegal act or by illegal means, is consequently of doubtful legality and policy.
In its earliest meaning conspiracy was the agreement of persons who combined to carry on legal proceedings in a vexatious or improper way. Although primarily a civil injury, it was also punishable on indictment. The Star Chamber developed the criminal aspect of agreement of this nature into a substantive offence, and widened its scope, being thus established the new offence eventually penetrated into the Courts of common law but in its gradual evolution into a crime at common law of general application there can be discerned a close association with the law of principal accessory. In this process of development it resembles the other preliminary crimes, incitement and attempt. It was, indeed, closely analogous to attempt and in its earliest stages there was a tendency to regard it as a form of attempt to commit a wrong. 5In the Common law Courts, it was received as a loosely expressed doctrine capable of almost indefinite extension. In effect it marked the point at which an agreement between two or more persons to do any act which the Court disliked even on moral ground, could be punished as a criminal conspiracy. Thus it has been said that criminal conspiracy consist in “an unlawful combination of two or more persons, to do that which is contrary to law, to cause public mischief, or to do that which is wrongful.6
CONSPIRACY UNDER LAW OF TORTS
During the seventeenth century conspiracy came to be regarded as not only a crime but also as capable of giving rise to civil liability provided damage resulted to the plaintiff. As a tort, however, it was little developed until the second half of the nineteenth century and the law remained obscure until the decision of the House of Lords in Crofter Hand Woven Harris Tweed Co. Ltd v. Veitch.7
It was firmly established that if there is a combination of persons whose purpose is to cause damage to the plaintiff, that purpose may render unlawful acts which would otherwise be lawful. The case witnesses a collusion between certain mill owners and the union of rival mill owners to outdo the rival manufacturers by sharply decreasing the cost of their product simultaneously inducing the union of rival manufacturers to demand a hike in wages. Resulting the rival mill owners suffered injury (monetary) and sued the others for conspiracy.
Plaintiffs lost their case because the predominant purpose was to promote the interests of the union members rather than to injure the plaintiffs, but their Lordships made it clear that if the predominant purpose of a combination is to injure another in his trade or business or in his other legitimate interests then, if damage results, the tort of conspiracy exists. The Crofter principle was applied by the Court of Appeal in Gulf Oil (Great Britain) Ltd. v. Page8 in granting an interlocutory injunction against a combination to publish a statement defamatory of the plaintiffs even though the statement was admitted to be true and there would, therefore, have been an absolute defence to an action for libel.
Hence the object or purpose of the combination must be to cause damage to the plaintiff. The test is “what is in truth the object in the minds of the combiners when they acted as they did?” what is required is that the combiners should have acted in order that the plaintiff should suffer damage. Law is concerned with the distinction between legitimate and illegitimate purposes, for the former will legalise the infliction of the most catastrophic and inevitable harm to the plaintiff business and the latter will make the defendant liable for compensation, no matter how slight the damage.
The burden of proof lies with the plaintiff throughout. On the other hand, there may obviously be cases where the plaintiff establishes a prima facie case by proving that he suffered damage from acts done in combination by the defendants the natural and probable outcome of which was damage to him. The defendants may then have to meet this “provisional burden” by adducing evidence that their purpose was something else and that it was legitimate.
Precise definition of what is and is not a legitimate purpose is probably not possible. Mere busybodies are probably not protected, nor are those who are induced to join a combination by the payment of money and have no other interest to protect.
Thus the essentials for proving a conspiracy under torts are:-
(i) Unlawful purpose, in a way of causing damage to the plaintiff.
(ii) Combination, there must be concerted action between two or more persons, which includes husband and wife.
(iii) Overt act causing damage, in contrast with the crime of conspiracy, an overt act causing damage is an essential element of liability in tort.
Place of conspiracy in the law
Conspiracy, it has been said, is a highly anomalous tort. The central issue has been why the “magic of plurality” should make something unlawful if it is not unlawful when done by one person alone. Numbers may, of course, bring increased power increasing power of numbers to do damage beyond what one individual can do is open to the obvious answer that this depends on the personality and influence of the individual.
POSITION AT COMMON LAW
To constitute a criminal conspiracy at common law, it must be formed for the purpose either of doing an unlawful act by any means, or a lawful act by unlawful or criminal means, although under statutes providing that the object of a conspiracy must be an unlawful act, the doing of a lawful act in an unlawful way is not within the statute. If the agreement has an unlawful purpose, the means contemplated to effect such purpose are immaterial, and may be lawful; and it is not even necessary that the means should have been agreed on, or that any time should have been set for the accomplishment of the purpose. On the other hand, if the agreement has a lawful purpose but is carried out by criminal or unlawful means, it constitutes a conspiracy, where the purpose of the agreement is lawful and the means used in effecting such purpose are also lawful, a conspiracy charge will not lie.
To constitute a conspiracy under the statues in some jurisdictions, it must appear that defendants agreed to commit a crime, or that they agreed to employ criminal means to accomplish a lawful object; and where the object of the agreement is not criminal, and the means employed constitute merely a trespass, for which the only remedy would be a civil action for damages, a charge of conspiracy will not lie. It is not essential, however, to criminal liability at common law that the acts contemplated should constitute criminal offence for which, without the elements or conspiracy, one alone could be indicted. It is an offence independent of the crime or unlawful acts which is its purpose; and it will be enough if the acts contemplated are corrupt, dishonest, fraudulent, or immoral, and in that sense illegal or if the end proposed or the means to be employed are, by reason of the combination, particularly dangerous to the public interest, or particularly injurious to some individual, although not criminal. The only exceptions to the criminality of combination are limited, it has been said, to cases where the combined number of persons have no more power for harm than would a person acting alone or individuals acting separately. At common law no overt act is necessary to constitute a criminal conspiracy, and this rule obtains unless changed or limited by statute. The only significance of acts done in furtherance of the object of a conspiracy is as evidence of the alleged combination, which alone constitute the offence.
Under AMERICAN LAW 9conspiracy is understood to be :-
(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 defendants whereby they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement.
(4) In jurisdictions where the statutes so require, an overt act.
In Smith v. People10, It has been said that there is perhaps no crime an exact definition of which it is more difficult to give than the offence of conspiracy a difficulty resulting in a large measure from the fact that the law on the subject of conspiracy except where settled by legislative enactment is beyond certain limits, in a very uncertain state; the cases beyond such limits, which have been adjudged to be conspiracies, it has been said to stand apart by themselves and to be devoid of that analogy to each other which would render them susceptible of classification.”11
However, a conspiracy at common law has generally been defined, although, as said in some cases, definition is perhaps not precise and accurate as a combination between two or more persons by concerted action to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal or unlawful, by criminal or unlawful means. The offence thus defined excludes confederations to accomplish lawful objects by lawful means; the offence includes all possible unlawful confederations. Under statutes making a combination to do an unlawful or criminal act indictable, only the first part of the above definition is applicable.
At common law a conspiracy may be a plan to commit a crime, but it may also be an evil scheme or conspiracy designed to cause a civil injury.
The essence of criminal conspiracy is unlawful combination, and ordinarily the offence is complete when the combination is formed. From this it necessarily follows that, unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. It has been said that the law making conspiracy a crime is designed as a curb to the immoderate power to do mischief, which is gained by a combination of the means. Even in jurisdictions where an overt act is required by statute, there are decisions in which the offence is held to consist of the conspiracy alone. Where it is shown that a person joined with others in carrying out the common design; it is immaterial at what time he joined; he may be liable if he joins the conspiracy after its formation; but the fact that one joins the conspiracy after it is formed does not affect the existence of the general scheme.12
CONSPIRACY : MENS REA & ACTUS REUS
It is understood that every crime contains two basic ingredients :
(1) Mens Rea (Guilty mind)
(2) Actus Reus(Overt act)
For convicting any person of any crime it is requisite that the prosecution necessarily establishes that the accused had an intention (Mens Rea viz. guilty state of mind to commit that offence) and that he actually performed the desired act to his objective. After all it is the intentions of the mind which result into the physical acts being performed.
Also in certain cases a person may not have an intention at all but only knowledge. Penal Law being strict in nature, in certain cases also punishes where knowledge could be imposed upon a person. Whereas the rules of evidence have different parameters which shall aid in the establishing of these two factors. But it is settled that these two conditions must be satisfied.
However, in the offence of criminal conspiracy it may not be necessary to prove the ingredients of Mens Rea. Mens Rea is not a necessary ingredient in a charge of conspiracy or to commit an absolute offence13. Offence of conspiracy is the making of an agreement to do an unlawful act. It is the character and content of the agreement that matters, and the accused’s knowledge of what in fact has been done is relevant if it throws light on that.
In R. v. Clayton 14, Per Asquith J., “No doubt in common speech ‘conspiracy’ has a melodramatic and sinister implication, but it has been pointed out that it carries no such implication in law. The definition of it is simply on agreement to do an unlawful act. It does not matter how prosaic the unlawful act may be or how ignorant the conspirator may be of the fact that the act is prohibited by the statutory provision. Thus, there is no support in the proposition that mens rea is needed in the case of conspiracy. We demur to the nation that there is anything particularly wicked attached to the word conspiracy.
Also, with respect to the evidentiary requirements it is established under Section 120-A read with Section-10, Evidence Act that the Mens rea of an individual to enter into conspiracy may not be proved beyond doubts. If ample evidence exists which indicates some evil scheme being laid out to commit any culpable offence, it is enough to hold such persons guilty for the same.
Hence, it is established that the rules of mens rea have been relaxed to a greater extent for the charge of conspiracy.
Now coming to the second ingredient i.e. the actus reus viz. the physical manifestation of the intention i.e. the performance of the overt act intended. A person cannot be held guilty for mere intention or knowledge, nor even preparation but only when a person performs the act by way of commission (or if the commission fails due to extraneous circumstances, attempt) he could be held guilty. This need for the overt act to be performed is apparently different in the case of criminal conspiracy from other offences. The actus reus for the offence of conspiracy is not the commission of the act desired (object) but the act of ‘agreement’ to commit the desired act. It is this very rule that separates the offence of criminal conspiracy from all other offences and provides it a unique character peculiar to it only. The resulting interpretation of this rule is that the offence of criminal conspiracy is complete not when the object of the conspiracy is achieved, but where two persons have barely agreed to commit the offence. It is useless to further consider whether the desired act has been committed or not when once the fact of the existence of conspiracy is proved.
This does not mean that a person shall be liable for conspiracy if he has merely intended to commit a crime or has discussed it with another. So long as crime generates in the mind, it is not punishable. Thoughts even criminal in nature often in voluntary are not crimes. But when the thoughts take the concrete shape of an agreement to do or cause to be done an illegal act or an act which is not illegal, by illegal means, then even if nothing further is done, the agreement is designated as criminal conspiracy.
Conspiracy differs from other offences in this respect that in other charges the intention to do a criminal act is not a crime in itself, until something is done amounting to the doing or attempt to do some act; to carry out that intention; conspiracy on the other hand consists simply in the agreement or confederacy to do some act, no matter whether it is done or not.15
The exact scope of the offence was pointed out by Supreme Court in Yash Pal Mittal v. State of Punjab16, “the offence of criminal conspiracy under section 120 A is a distinct offence introduced for the first time in 1913 vide Chapter VA of the Penal Code. The very agreement, concert or league is the ingredient of the offence. There must be unity of object or purpose but there may be plurality of means.”
In Noor Mohammad Yusuf Momin v. State 17, the nature of the offence to be proved to enter a conviction is stated in following words :
“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 step is taken to carry out that agreement”.
CONSPIRACY AND COMMON INTENTION
There is not much substantial difference between conspiracy as defined in this section and acting on a common intention as contemplated in Section- 34. While in the former the gist of the offence is the bare engagement and association to break the law even though the illegal act does not follow. The gist of the offences under Sec. 34 is the commission of a criminal act in furtherance of a common intention of all the offenders – which means that there should be a unity of criminal behaviour resulting in something for which an individual would be punishable as if it were all done by him alone.18
The offence of conspiracy is often confused with the offence under Section-34, Indian Penal Code which relates to acting on a ‘common intention’. Section-34 reads as follows :-
“When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for the act in the same manner as if it were done by him alone.”
Common intention implies a pre-arranged plan and acting in concert pursuant to the plan. Common intention comes into being prior to the commission of the act in point of time, which need not be a long gap. The common intention to bring about a particular result may well develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a pre-arranged plan and a prior concert The essence of liability is to be found in the existence of a common intention animating the accused leading to the dairy of a criminal act in furtherance of such intention.
The anomaly was settled by the Supreme Court in Noor Mohammad Yusaf Momin v. State of Maharashtra19, the gist of the offence of conspiracy is bare engagement and association to break the law even though the illegal act does not actually follow, but under Section-34, the commission of criminal act must have taken place. Also, in conspiracy a person is guilty for mere association to commit an offence, whereas under Section 34 there should be unity of criminal behaviour of all persons and an intention to give effect to a common purpose. A common intention may even be formed at the spur of the moment, but in conspiracy, secretly a plan is hatched and mostly there is some time gap between the agreement and the actual act. The last difference between the two is that an individual person can never be held guilty of conspiracy as it requires at least two persons, whereas a person individually can be charged under Section- 34 because it is considered that all the acts that were done in furtherance of common intention are deemed to have been done by himself alone whether or not he has actually committed all of those acts.
Section-34 is not an offence by itself, while Section-120A is a substantive offence by itself.20
CONSPIRACY AND ABETMENT
There is a difference between the offence of criminal conspiracy as defined under Section 120A and the offence of abetment by conspiracy as defined in Section-107 of the Code. Section-120A and 120B contained in Chapter-VA of the code are different from the provision in Chapter-V relating to Abetment, as they are both completely distinct offences. Criminal conspiracy after Amendment Act of 1913 is a substantive offence and was nothing to do with abetment.21 The confusion between the two provisions was harmoniously construed by Supreme Court, understanding the two as different offences in the case, Promatha Nath Talugdar v. Saroj Rajan Sarkar22, in which Das, J. aptly held that :
“Under Sec. 107 Secondly, a person abets the doing of a thing, who engages with one or more other person or persons in any conspiracy for the doing of that thing. If an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing. Therefore, in order to constitute the offence of abetment by conspiracy, there must first be a combining together of two or more persons in the conspiracy, secondly, an act or illegal omission must take place in pursuance of that conspiracy, secondly, an act or illegal omission must take place in pursuance of that conspiracy, and in order to the doing of that thing, it is not necessary that the abettor should concert the offence with the person who committed it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. It is worthy of note that a mere conspiracy or a combination of persons for the doing of a thing does not amount to an abetment. Something more is necessary, namely, an act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing for which the conspiracy was made.
Before the introduction of Chapter V-A, conspiracy was a mere species of abetment where an act or an illegal omission took place in pursuance of the conspiracy and amounted to a distinct offence. Chapter V-A, however, introduced a new offence defined by Sec. 120-A. That offence is called the offence of criminal conspiracy and consist, in a mere agreement by two or more persons to do or cause to be done, an illegal act, or an act which is not illegal by illegal means; there is a proviso to the section which says 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 position, therefore, comes to this. The gist of the offence of criminal conspiracy is in the agreement to do an illegal act or an act which is not illegal, by illegal means. When the agreement is to commit an offence, the agreement itself becomes the offence of criminal conspiracy. Where, however, the agreement is to do an illegal act which is not an offence or an act which is not illegal, by illegal means, some act besides the agreement is necessary.
Therefore, the distinction between the offences of abetment by conspiracy and the offence of criminal conspiracy, so far as the agreement to commit an offence is concerned, lies in this. For abetment by conspiracy mere agreement is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for. But in the offence of criminal conspiracy the very agreement or plot is an act in itself and is the gist of the offence.
The offence of conspiracy is an independent offence and though the offences are committed in the course of conspiracy, the liability of conspirator will not disappear.23
It is not like abetment to depend upon a substantive offence to be committed. The offence of a conspiracy to commit a crime is different from the crime itself, which is one object of conspiracy. The conspiracy precedes the commission of the crime and is complete before it is attempted. They are thus separate offences.
In Re Karam Singh24, Conspiracy is one form of abetment and where an offence is alleged to have been committed by more than two persons such of them as actually took part in the commission should be charged with the substantive offence, while those who are alleged to have abetted it by conspiracy should be charged with the offence of abetment under Section 109 of this code.
So far as abetment by conspiracy is concerned, the abettor will be liable to punishment under varying circumstances detailed in Sections-108 to 117. For the offence of criminal conspiracy, it is punishable under Section-120B.The punishments for these two categories of crimes are quite different. Section 109 I.P.C. is concerned only with the punishment of abetments for which no express provision is made under the Indian Penal Code. A charge under Sec. 109 should, therefore, be along with some other substantive offence committed in consequence of abetment. The offence of criminal conspiracy is on the other hand, an independent offence. It is made punishable under Section 120-B for which a charge under Section 109 I.P.C., is unnecessary and indeed, inappropriate.25
Put very briefly, the distinction between the offence of abetment under the second clause of Section107 and that of criminal conspiracy under Section 120-A is that in the former offence, a mere combination of persons or agreement between them is not enough. An act of illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for, in the latter offence the mere agreement is enough, if the agreement is to commit an offence. Conspiracy to commit an offence is itself an offence and a person can be separately charged. There may be an element of abetment in conspiracy, but conspiracy is something more than abetment26.
The rationale behind distinguishing the two offences is the role played by an ‘abettor’ and a ‘conspirator’ in any offence. The abettor may instigate another and thereby being the originator of the crime, still has a passive role in the commission of the crime itself. A conspirator enters into a sort of partnership when he agrees to be a part of the ploy and thus has a much more active role in the furtherance of the object of the conspiracy. This element of partnership and an ‘actus contra actum’ is missing in the offence of abetment and hence the ‘principle of agency’ is applicable equally to the conspirators.