January 18, 2021

Conspiracy under Indian Penal Code

Abstract:

Conspiracy has always been recognized as a crime primarily, since the beginning of criminal law. This article tries to focus and explore a less explored dimension and pursue conspiracy as a criminal evil. Sanctions against conspiracy, such as grievance, originated in medieval times in England, in the narrow context of remedial abuses of criminal proceedings. Subsequently, it was treated as a civil and/or criminal remedy for the harm caused by a combination of people to corrupt justice; but with the development of the modern damage law, it is considered as a remedy for the injury caused to a person by the combination of two or more people acting in concert for the purpose of causing harm or loss.

A conspiracy is an unlawful combination of two or more people to do something that is contrary to the law, or to do something that is harmful to another person or to carry out an object that is not unlawful in itself by illicit means. It may consist of the agreement of two or more persons to perform an unlawful act or perform a lawful act by unlawful means.

Introduction:

Legislation as a concept is understood relatively easily in most legal systems. However, because of our heritage of customary law, case laws are of particular important in India. They often give rise to certain important principles to constitute an evil and add more dimensions to it, thus inviting greater attention. The development of conspiracy as a criminal offence basically took place through the filing of several cases.

It is a well-established law that in a conspiracy case, the agreement between the conspirator cannot be provided directly, but can only be inferred from the circumstances of each case. There is no need to establish a conspiracy by evidence of a real agreement between the conspirators and the open acts raised a presumption of an agreement and knowledge of the purpose of the conspiracy[1]. The connection should be established with conspiracy and not with the separate acts of different conspirators which are the open acts of the different individuals in proof of conspiracy[2].

Background:

Conspiracy was originally a legal remedy against false indictment and prosecution through “a consultation and agreement between two or more to falsely and maliciously appeal or accuse an innocent man of a felony, whom they accuse and appeal; and then the party is legally acquitted”[3]. The central idea of the crime was the confederation of two or more, and eliminated the requirement that a real accusation of an innocent be carried out, so the precedent was set that the conspiracy should only involve an attempted crime and that the agreement was the act allowed in subsequent possessions against an agreement to commit any crime, and not just the originally outlawed crimes[4].

Types of Conspiracy Theories:

The concept emerged from theoretical aspect of conspiracy and was explored by proposing a consensus in view of democracy[5]. The groups in competition would represent the interests of individuals, but they would do so within a political system in which everyone agreed that it would frame the limits of the conflict. Those that felt unable to channel their political interests into representative groups that would become alienated from this system. These people would not accept statements by opposition parties as a representative of a fair disagreement; rather, differences of opinion would be considered with deep suspicion. These alienated people would develop a paranoid fear of conspiracy, making them vulnerable to charismatic rather than practical and rational leadership. This would undermine democracy and lead to totalitarian government.

The other theory proposed that this is not an individual pathology but originates from a social conflict that generates fears and anxieties, leading to struggles of status between opposing groups[6]. The resulting conspiracy theory stems from a collective sense of threat to the group, culture, way of life, etc. Extremists at both ends of the political spectrum could be expected to develop a paranoid style. Although few promoted paranoid notions of communist infiltration into the institutions; on the left is the belief that the terrorist attacks of September 11, 2001 were an “internal work” perpetrated by a clique of government and corporate interests. The approach is remarkable because it places the root of conspiracies in intergroup processes, meaning that his theory can explain the reflux and flow of conspiracy theories over time.

Civil verses criminal conspiracy:

Aforementioned, conspiracy is a civil and criminal offence in India. Conspiracy in its criminal sense is defined as:

When two or more per child agrees to do, or the cause to do, –

1) An illegal act, or

(2) an act that is not illegal by illegal means, such a match is designated as a criminal conspiracy.

Whenever there is an agreement, except for an agreement to commit a crime it shall be a criminal conspiracy unless any act other than the agreement is performed by one or more parties to that agreement in compliance. It is indifferent whether the illegal act is the ultimate subject matter of such agreement or is merely incidental to that object.

The difference between civil and criminal laws is that the former involves a crime against a specific part of the person, while the second involves a crime against society, the state or the government. Generally, civil cases are initiated by private individuals, while criminal cases are initiated by the federal, state, or local government in response to a violation of a rule. In a criminal conspiracy, actors intend to commit an act that is punishable by criminal law. A civil conspiracy can occur when two or more people conspire to commit an act that is not criminal, but remains illegal, and another person is injured by the act.

But the main difference in distinguishing between a civil and criminal conspiracy is that in the first, a mere agreement between two or more people to commit a crime does not qualify as a crime while the presence of a manifest act is essential, whereas in the latter, even a mere agreement constitutes a crime. The crime of criminal conspiracy is punishable under article 120-B of the Indian Penal Code, 1860. The damage caused in conspiracy grievance is in the form of loss of employment, business, trade, etc.

It is observed more often than in cases of criminal conspiracy, if the conspiracy involves multiple crimes, those involved will only be charged with a single act of criminal conspiracy. In other words, it results in many crimes being followed and becomes the starting point for them to occur.

The Statement of Problem:

Those that were in favor and those who opposed the conspiracy theory would do both what that same statement refers to as evidence in favor of its position. People believed this would happen because defenders on both sides participated in a biased assimilation, in which information supporting one’s position is accepted without criticism, while the contrary information is analyzed and discredited. In addition, due to the polarization attitude, when people encounter ambiguously provided information, they tend to support their original position, even more strongly than they did before encountering the information[7].

Conspiracy and planning is maintained by the fundamental error of attribution, which states that people overestimate the importance of provisions such as individual motivations or personality traits while underestimating the importance of situational factors such as chance and social norms to explain the behavior of others[8]. It was noted that this error is typical of conspiracy thinkers. People maintain adherence to their conspiracy beliefs because to dispense with conspiracy would be to dismiss human motives at events. More than reason, people ultimately make the fundamental mistake of attribution because they have evolved to do so. Humans evolved into close-up groups where understanding the motives of others was critical to the detection of malevolent intentions. The cost of making a mistake in identifying others insidious motives was small in relation to the cost of not identifying such reasons. People are psychologically in tune to rule out situational factors about the dissociated factors in explaining the behavior of others. Thus the question one needs to ask prudently is; If the concept of conspiracy under the Indian Penal Code of 1860 is inchoate or incomplete?

Hypothesis:

Section 120B contains the punishment for criminal conspiracy and section 120A defines the criminal conspiracy. Section 120A defines criminal conspiracy. It says: “When two or more people agree to do or have it done:

1) an illegal act or

(2) an act that is not illegal by illegal means, such an agreement is called a criminal conspiracy. Provided that no agreement, except an agreement to commit a crime, shall constitute a criminal conspiracy unless one or more parties to that agreement perform any act in addition to the agreement in compliance with it.”

Thus, criminal law is placed for the passion of revenge in the same relationship as marriage with sexual appetite. The fundamental reason for the existence of criminal law is not to punish crimes against society but to allow private passion for revenge to be released in a controlled manner.

Analysis:

Generally, under criminal law, both mens rea, i.e. guilty mind or intent and actus reas i.e. the guilty act must be present to constitute a crime. This means that the “intention to commit a crime” is not punishable in itself and only when an act is carried out; in accordance with the intention of committing a crime is said to have been committed. For example, a person’s mere intention to commit a robbery, that is, without taking steps to commit the robbery, is not punishable; one must perform an act to promote their intention to commit theft. However, a unique feature of the crime under section 120A is that an “agreement to commit a crime” may in itself amount to a criminal conspiracy. This means that it is sufficient for the prosecution to demonstrate that there was an agreement between two or more persons to commit an illegal act or act; not necessarily illegal acts, by illegal means.

In a conspiracy case, where there is no direct evidence, inference from proven circumstances must be largely based on the conclusion of the courts. Direct evidence of conspiracy is almost an impossibility, as in a rare case there is only direct evidence of where the conspiracy began. Conspiracies must be inferred from the subsequent conduct of the parties taking into account all the circumstances of the case.

1. The malice is not an essential ingredient to constitute a conspiracy.

The fact that malice in the sense of malevolence or ill will was not an essential requirement for the fulfillment of the conspiracy grievance, and that combiners cannot be held liable for conspiracy as long as the act of the combiners is lawful but injury to the plaintiff[9]. In this case, the defendants were an association of shipowners who had indulged in the china-Europe tea transport trade by offering reduced freight tariffs with a view to monopolizing trade. This resulted in huge losses for the plaintiff, who was a rival trader. He therefore sued the defendant’s association for conspiracy. The House of Lords did not sue the defendants because they had not used any illegal means to achieve their goal.

The principle was reiterated[10] where the plaintiffs were two workers (ship builders) engaged in the repair of wood related to the work of a ship. Some iron workers also participated in the same boat. These iron workers came to know that the plaintiffs had previously been employed to do the iron work on another ship. From then on, they decided at a meeting of their union not to work with the plaintiffs and to cease work until the plaintiffs were fired by the shipowners. This was reported to the shipowners by Allen, a union official. The shipowners then fired the plaintiffs. Anyway, these lumber workers were employed daily, so there was no breach of contract. These laid-off and unemployed shipbuilders sued the Allen Iron Workers Union official for conspiracy. In addition, it was argued that the defendants were not responsible as he did nothing wrong by simply passing on the union’s decision to the shipowners and, secondly, even if the act was intentional, his dismissal from work was not unlawful as such. The defendants’ argument was not directed against the applicants, but only to protect the interests of iron workers and could not be classified as conspiracy.

2. That a combination of person for the purpose of causing loss or damage to the plaintiff will not be prosecuted per se, while there must be cause resulting into some actual damage.

Another important case, decided by the Mysore High Court and based mainly on the aforementioned case discussed this principle[11]. However, it shall be noted that the Section 120-A of the Indian Penal Code, 1860 does not mention this concept of damage caused and a mere unlawful combination may result in sanction.

In the High Court of Kolkata[12] it was observed that a combination of bidders at auction, so as not to bid on each other, even if the combination amounted to “knock out”, did not necessarily result in a conspiracy action. The Court made the distinction between an honest combination between willing buyers and a dishonest concert for the abolition of all competition. The first does not result in a conspiracy action, while the second did. A similar case was decided by the Upper Court of Kolkata itself where the court[13] noted that the object of the agreement between the bidders is the evidence to achieve whether a combination is lawful or not. The object would be classified as fraudulent if the object is to obtain property by deception. It cannot be considered fraudulent if the object is to make a fair deal or even divide the property for the accommodation of the buyers.

In short: an accomplice must be aware of the agreement and its illegal objectives, but it is not necessary for a conspiracy to succeed in its illegal target. A defendant may be convicted of conspiracy, but acquitted of the substantive crime he conspired to commit.

If the facts support him, a prosecutor will almost always charge with conspiracy. It is often included along with securities fraud, bank fraud, insurance fraud, and postal or electronic fraud charges in white-collar criminal cases. Within a year alone, federal prosecutors charged conspiracy in nearly 1,000 cases.

A conspiracy charge gives the government numerous advantages. On the one hand, each member of the conspiracy is responsible for the criminal acts of others committed in support of the conspiracy, so a conspiracy charge can dramatically improve the consequences of a guilty verdict for any defendant. On the other hand, evidentiary rules relax for co-conspirators’ statements, making it easier for prosecutors to present incriminating evidence to the jury.

To withdraw from a conspiracy, an individual must take some action to make justification of their exit from the conspiracy, such as informing the authorities about the conspiracy. An individual who withdraws from a conspiracy may be held liable for acts committed while he or she was a member, but not for those committed after his willing exclusion.

Conclusion:

An important concept for understanding common intent is the meaning of the phrase “common intention” itself. The common intention is distinguished from “similar intent” or “common object”[14]. In the first, the intention to perform or cause a particular illegal act must be known and shared by all conspirators, while, in the event of ‘similar intent’, the intention to perform/cause the illegal act is common to all defendants, except there is no “mind encounter” among co-defendants. To illustrate this, in the Babri case, the accused conspirators were likely to individually want the destruction of the Babri mosque, but their intention was not known to other conspiracy defendants, i.e. there was no “meeting of minds.” In this case, there was no common intention, therefore there was no conspiracy. Each defendant may still be held individually liable for inciting individuals to cause public harm or riots.

The above scenario is different from the situation in which the conspirators exchanged their thoughts or shared their intention I.e. to demolish the mosque with their fellow co-conspirators, as this would imply ‘common intention’.

To be sure, a number of complex legal issues are involved in this case. A crucial issue on which the case is based is whether there was an agreement between the defendants to carry out the demolition or whether the demolition was simply an unintended consequence of their actions. If the court fails in favor of the former, the defendant could face half a decade in prison and else he could get away with slapping his wrist. In any event, it would be interesting to note how the court interprets Section 120A in this case, and such interpretation is expected to set the precedent for any future criminal conspiracy case in India.

References

[1] Per Lord Brampton in Quinn v. Leathem, (1901) AC 495 (528)

[2] Per Willes, J., In Muleahy v. The Queen.

[3] Edward Coke, The Theory of Conspiracy.

[4] Poulterer’s Case, 77 Eng. Rep. 813 (K.B. 1611)

[5] American historian Richard Hofstadter, Conspiracy and Democracy.

[6] Hofstadter, In The Paranoid Style of Politics (1965).

[7] John McHoskey, A 1995 study by American psychologist.

[8] Australian philosopher Steve Clarke, Conspiracy and the Society.

[9] Moghul Steamship Co. v. McGregor Gow & Co. [1892] AC 25.

[10] Allen v. Flood [1898] AC 1.

[11] M. P. Jain, B Kangayia v. DP Gangadharan, The Constitution of India.

[12] Jyoti Prakash v. Nandi v. Jhumal Johrey 1971 AIR 1093, 1971 SCR (3) 483

[13] Ambika Prasad Singh v. Whitewell and Sitaram Singh 1966 AIR 605, 1966 SCR (1) 753

[14] Babri Masjid (1990).


Author Details: Neha Misha

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