Any person who commits an offence should be punished in accordance with the applicable provisions. But what about those who assist the person in committing such an offence? Obviously, the Criminal Laws do contain provisions which punish those who conspire and proceed with the planning and plotting, to avoid any suspicions and commit the misdeed. There is this definition of Criminal Conspiracy in BNS Section 61, which used to be recognized under Section 120B of the Indian Penal Code. Here, we seek to dissect what is provided under the law and what changes are introduced through the New Criminal Laws. Let’s conspire a step-by-step ride on transition from old to new.
Criminal Conspiracy in IPC
The provision for criminal conspiracy under the Indian Penal Code was defined under Section 120A, while the punishment for criminal conspiracy was encapsulated under Section 120B of the IPC 1860. The provision stated about two or more persons in agreement to do or cause an illegal act or a legal act done by illegal means, designating the said agreement as criminal conspiracy. The explanation made it immaterial whether the illegal act was the ultimate objective for the conspiracy, or was ancillary to the object.
Punishment for criminal conspiracy under Section 120B includes the same punishment as of abetment if the offence committed is punishable with death penalty, life imprisonment or rigorous punishment of two years or more. In other cases, criminal conspiracy is punishable with imprisonment of 6 months or fine or both. For any offence committed, Section 120B was usually imposed when there was involvement of two or more people, regardless of whether only one person committed the offence while others assisted in its completion. There are several judicial precedents to decide when criminal conspiracy in itself becomes an offence and when the person’s ancillary involvement in an offence would be excused.
Criminal Conspiracy in BNS
Section 120B of IPC has been on tips for a few years. Now that the Indian Penal Code has been replaced by the Bharatiya Nyaya Sanhita, 2023, the provisions have been renumbered. Section 120A or 120B no longer exist. The provision for criminal conspiracy in BNS is incorporated under Section 61. Given below is the provision on criminal conspiracy under Bharatiya Nyaya Sanhita in the New Criminal Laws:
Section 61 of Bharatiya Nyaya Sanhita 2023
“61. 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.”
Explanation of Criminal Conspiracy in BNS Section 61
As compared to Section 120B of IPC, the words “with the common object” have been added. Apart from that, the act remains the same and so does the punishment for criminal conspiracy. It provides that when two or more people agree to do or cause something with the common object of doing an illegal act or a legal act by illegal means, that is what constitutes criminal conspiracy. The punishment for criminal conspiracy remains the same as under IPC.
Difference between Criminal Conspiracy and Offence by Unlawful Assembly (149 of IPC)
Since the provision of criminal conspiracy in BNS has introduced the words “common object”, it becomes crucial to compare unlawful assembly and offence under Section 149 of IPC (Section 190 of BNS). A group of 5 or more people constitute an Unlawful Assembly when they commit an illegal act. For an offence committed by any member of unlawful assembly in furtherance of a common object, every member of such assembly at the time of committing offence is guilty of that offence. What we can see is that even in furtherance of a common object, the provision of criminal conspiracy in BNS punishes agreement towards committing an illegal act or otherwise any other act by illegal means. Under Section 61, two or more people having a common object for a criminal act makes the offence of criminal conspiracy.
On the other hand, unlawful assembly is 5 or more people assembled with the common object to commit an illegal act by means of criminal force, as elaborated by the Supreme Court in Nitya Nand v. State of UP (2024) – downloaded. Offence being committed is a requisite under Section 190 of BNS, while the case is opposite for Section 61. Both the provisions impose a vicarious liability on persons sharing the knowledge and common object, but Section 61 is a separate offence, while Section 190 is not.
Common Object Case Laws
It is understandable so far that the concept of criminal conspiracy under Section 120B did not whisper about common object, but introduced through the Bharatiya Nyaya Sanhita. However, the Courts have time and again discussed and defined what constitutes a common object in terms of an unlawful assembly. Hence, we seek to highlight the various definitions and elaborations of common objects, which you need to bridge with criminal conspiracy.
Naresh@Nehru v. State of Haryana (2023)
The Supreme Court extended the duties of Prosecution determining common object by stating that “in order to attract Section 149 of the Code it must be shown by the prosecution that the incriminating act was done to accomplish the common object by such unlawful assembly. It must be within the knowledge of the other members as one likely to be committed in furtherance of the common object. Even if no overt act is imputed to the accused, the presence of the accused as part of the unlawful assembly is sufficient for conviction. The inference of a common object has to be drawn from various factors such as the weapons with which the members were armed, their movements, the acts of violence committed by them, and the end result.”
Bhanwar Singh v. State of Madhya Pradesh (2008)
The Supreme Court in this case elaborated the essentials of determining what constitutes common object. The Court elaborated that “the common object of the unlawful assembly in question depends firstly on whether such object can be classified as one of those described in Section 141 IPC. Secondly, such common object need not be the product of prior concert but, as per established law, may form on the spur of the moment (see also Sukha v. State of Rajasthan AIR 1956 SC 513). Finally, the nature of this common object is a question of fact to be determined by considering nature of arms, nature of the assembly, behaviour of the members, etc. (see also Rachamreddi Chenna Reddy v. State of A.P. (1999) 3 SCC 97 )”.
Charan Singh v. State of Uttar Pradesh (2004)
The Apex Court in this case explained that “The word `object’ means the purpose or design and, in order to make it `common’, it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression `in prosecution of common object’ as appearing in Section 149 has to be strictly construed as equivalent to `in order to attain the common object’. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter….”
The Court further added that “’Common object’ is different from a “common intention” as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The “common object” of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances.”
