About this topic
Can a person be sent to jail for a crime that never happened, with a weapon that was never bought, against a victim who was never touched? In one corner of criminal law, the answer is yes. That corner is criminal conspiracy.
These notes cover the definition of criminal conspiracy in Section 61 of the B.N.S., its proviso and Explanation, the meaning of "illegal" in Section 2(15), the role of knowledge (State of Maharashtra v. Somnath Thapa), the reason the law punishes a bare agreement (Devender Pal Singh v. State, National Capital Territory of Delhi), conspiracy as a continuing offence, the evidence rule in Section 8 of the B.S.A., and the punishment scheme under Sections 61(2), 148, 49, 55 and 56 of the B.N.S.
Three problems to keep in mind
The following three problems are decided at the end of these notes, once the principles are in place.
The group chat: Three friends make a group chat. They agree to burn down a rival's shop on Saturday night. On Thursday, the police read the chat and arrest them. Nothing has been bought, and nobody has moved an inch.
The locksmith: Aadil, a locksmith, makes a duplicate key for a customer. Later, the customer uses it to break into an office at night.
The sub-contractors: Neha and Farhan, two sub-contractors, agree to walk off a builder's project halfway, in breach of their contracts, only to cause the builder a loss.
The question in each problem: who has committed criminal conspiracy?
Criminal conspiracy as an inchoate offence
Criminal conspiracy sits in Chapter 4 of the B.N.S. (2023), beside abetment and attempt. All three are inchoate offences.
- Inchoate means unfinished.
- The law punishes inchoate offences even when the main crime is never completed.
- Conspiracy can be complete even earlier than the other two: at the moment of agreement, before any preparation begins.
Criminal conspiracy, abetment and attempt, placed together in Chapter 4 of the B.N.S., are all inchoate (unfinished) offences. Criminal conspiracy can be complete at the moment of agreement itself, before any preparation begins.
Section 61(1) of the B.N.S.: the definition
The main rule
The offence is contained in Section 61 of the B.N.S. Sub-section (1) reads:
"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."
So the agreement may have either of two objects:
- an illegal act; or
- an act which is not illegal, but done by illegal means.
The proviso
A proviso is a clause that limits the main rule. The proviso to Section 61(1) reads:
"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."
The Explanation
The Explanation clarifies the scope of the offence:
"It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
The six P's: a memory aid
Think of a criminal conspiracy as a contract that the law refuses to enforce, and punishes instead. Like a contract, it has parties, a promise, a purpose and sometimes performance. It turns its members into partners, and it carries a penalty. This gives six P's:
| P | What it covers |
|---|---|
| 1. Parties | Two or more persons; nobody can conspire alone. |
| 2. Promise | The agreement itself, with a common object and made with knowledge. |
| 3. Purpose | The object: an illegal act, or a lawful act by illegal means. |
| 4. Performance | An overt act, needed only when the object is not an offence. |
| 5. Partnership | Every member is the agent of the others; a continuing offence. |
| 6. Penalty | Section 61(2): measured by the crime that was planned. |
1. Parties: two or more persons
Section 61 speaks of "two or more persons", because a conspiracy is a meeting of at least two minds. Nobody can conspire alone.
A robbery plan written in a private diary is only an intention. The moment a second person reads it and says "I am in", it becomes an agreement.
2. Promise: the agreement
The agreement is the heart of the offence.
- It needs no stamp paper, no signature and no payment.
- A nod, a phone call or a message can be enough.
- The agreement may even be inferred from conduct.
The words "with the common object" add a further demand: every party must be aiming at the same target.
Knowledge is part of the promise
No one can truly agree to a plan without knowing what it is, so knowledge sits inside the promise. The Supreme Court explained this in Somnath Thapa.
State of Maharashtra v. Somnath Thapa (decided 12 April 1996): The case arose from the serial bomb blasts in Mumbai on 12 March 1993. Arms and explosives, including RDX, had been smuggled into India and landed on the coast of Maharashtra. A Designated Court under the anti-terrorism law of that time framed charges against a large number of accused, including criminal conspiracy under Section 120B of the Indian Penal Code. Some accused asked the Supreme Court to discharge them, that is, to drop the charges before trial. One of them was Somnath Thapa, an Additional Collector of Customs. The prosecution alleged that he had received advance warning of the smuggling, yet placed checkpoints at the wrong points, leaving an escape route, and that he was paid ₹22 lakh as a bribe for allowing the smuggling. The defence answered that the checkpoints were placed where local officers had advised, and that evidence had been manufactured. The real question was: when does a helper, someone who only supplies a service or looks the other way, become a conspirator? Held (Justice B. L. Hansaria): "to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary." On the material, there was ground to presume that Thapa knew what was being facilitated, and the charges against him stayed. Another accused, in whose compound vehicles loaded with arms and explosives had been parked, was discharged: on learning of the parking, this accused had at once asked for the vehicles to be removed. There was no knowing help and no knowing possession, and so no conspiracy. Principle: knowledge of the unlawful object is necessary for conspiracy; it may itself reveal intention, and a member of a chain need only know that the help will be put to an unlawful use.
The principles laid down in Somnath Thapa:
- Knowledge is necessary: to establish conspiracy, the accused must know about the illegal act, or the legal act by illegal means.
- Knowledge may reveal intention: sometimes knowledge itself reveals the intention, especially when the goods or services supplied have no lawful use at all.
- Chain conspiracies: when a crime passes through a chain of hands, no member needs to know what every other member will do. It is enough to know that the help will be put to an unlawful use.
- So the accused did not need to know that the explosives were meant for Mumbai, as long as they knew the explosives were meant for bomb blasts somewhere in the country.
A helper becomes a conspirator only through knowing help. Mere supply of a service, or innocent possession, is not enough. The same rule of knowledge governs Section 61 of the B.N.S. today.
3. Purpose: the object of the agreement
The Purpose is the object of the agreement. It may be:
- an illegal act; or
- a lawful act done by illegal means.
A shop owner wants an employee to return the shop keys. That is a lawful aim. But if the owner and a friend agree to lock the employee in a storeroom until the keys come back, they have chosen illegal means, because wrongful confinement is an offence.
What counts as "illegal": Section 2(15) of the B.N.S.
"The word 'illegal' is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be 'legally bound to do' whatever it is illegal in him to omit."
"Illegal" therefore has three layers:
- Offences (crimes);
- acts prohibited by law; and
- civil wrongs, which furnish ground for a civil action, that is, for which the injured person can sue.
Because "illegal" includes whatever furnishes ground for a civil action, an agreement to commit a civil wrong can also be a criminal conspiracy.
"Or cause to be done"
The words "or cause to be done" mean that the conspirators need not act with their own hands. They may agree to hire someone else to do it.
The Explanation: a noble final goal is no shield
Under the Explanation, it is immaterial whether the illegal act is the ultimate object of the agreement or is merely incidental to that object.
A trust wants to build a hospital. To get the land faster, two trustees agree to forge a no-objection certificate. The forgery is only a step on the way to the hospital, but it is illegal, and that is enough for criminal conspiracy.
4. Performance: when an overt act is needed
The proviso to Section 61(1) divides agreements into two tracks:
- First track: an agreement to commit an offence. The agreement alone is the crime. Nothing more needs to happen.
- Second track: every other illegal agreement, such as an agreement to commit a civil wrong. Here the law waits for "some act besides the agreement", done by at least one party "in pursuance thereof", which means in carrying out that agreement.
Such a step is usually called an overt act, meaning an open act.
| Point | First track | Second track |
|---|---|---|
| Object of the agreement | To commit an offence | Any other illegal object (for example, a civil wrong) |
| Is the agreement alone enough? | Yes; the agreement itself is the crime | No |
| Overt act | Not required | Required: some act besides the agreement, by one or more parties, in pursuance of it |
An overt act is needed only when the object of the agreement is not an offence. An agreement to commit an offence is a complete criminal conspiracy the moment it is made.
Why the law strikes so early
Think of a river. One stone thrown into it changes nothing. But many stones placed together, to a plan, can build a dam. The Supreme Court gave this reasoning legal form in Devender Pal Singh.
Devender Pal Singh v. State, National Capital Territory of Delhi (decided 22 March 2002): On 11 September 1993, M. S. Bitta, then President of the Indian Youth Congress, was leaving an office on Raisina Road in New Delhi by car when a car parked outside exploded. Nine people were killed and 29 were injured. Devender Pal Singh was convicted under the anti-terrorism law of that time and the Indian Penal Code, including Section 120B, mainly on the strength of his own confession to a senior police officer. Before the Supreme Court, the defence argued that the confession was neither voluntary nor corroborated by independent evidence, and that an alleged fellow conspirator had been acquitted: if the partner walked free, how could a conspiracy survive? Held (by majority, Justice Arijit Pasayat writing for the majority): the conviction was upheld. The co-accused had been acquitted because the confession was not corroborated against that person, and that protection does not extend to the person who made the confession. Principle: the law punishes conspiracy to curb the extra power to do mischief that people gain by joining hands; the essence of the offence is the unlawful combination, so unless a statute requires it, no overt act is needed; and since such plans are made in secret, they may be proved by circumstantial evidence.
Why conspiracy is punished, as explained in Devender Pal Singh:
- People who join hands gain an extra power to do mischief.
- Partners encourage one another, share the work, and make possible plans that no single person could carry out.
- The essence of the offence is the unlawful combination, so unless a statute requires it, no overt act is needed.
- Conspiracies are made in secret, so they may be proved through circumstantial evidence.
These principles, stated under Section 120B of the Indian Penal Code, apply fully to Section 61 of the B.N.S.
5. Partnership: agency and a continuing offence
Every partner is an agent of the others
Courts often call a conspiracy a partnership in crime, in which every partner acts as the agent of the others.
- Whatever one member does to carry out the common plan is treated in law as the act of all.
- This does not reach acts that have nothing to do with the plan.
A continuing offence
Criminal conspiracy is a continuing offence. It continues until its object is:
- achieved,
- given up, or
- defeated.
In Devender Pal Singh, the Court noted that each time any member acts to advance the common design, the conspiracy is renewed for all its members.
Picture a moving train. A passenger who boards at a later station has not started a new journey, but rides the same train to the same destination. In the same way, a knowing late joiner joins the whole conspiracy.
The evidence rule: Section 8 of the B.S.A.
The law of evidence follows the same idea. Section 8 of the B.S.A. (2023) says:
"Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
An actionable wrong is a wrong that gives a right to sue.
The conditions and effect of Section 8:
- There must be reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong.
- Anything said, done or written by any one of them, in reference to their common intention, after the time that intention was first entertained by any one of them, is relevant against each of them.
- It is relevant for two purposes: to prove the existence of the conspiracy, and to show that any such person was a party to it.
The illustration to Section 8 concerns a conspiracy to wage war against the State. Arms procured in Europe and money collected in Kolkata by other members are relevant against a member who knew nothing of them, even if they happened before that member joined the conspiracy.
6. Penalty: Section 61(2)
The punishment is found in sub-section (2) of Section 61, which has two clauses.
Clause (a): conspiracy to commit a serious offence
Clause (a) covers whoever is a party to a criminal conspiracy "to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards". Such a person "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".
Rigorous imprisonment means imprisonment with hard labour.
Clause (b): every other criminal conspiracy
Clause (b) covers whoever is a party to a criminal conspiracy "other than a criminal conspiracy to commit an offence punishable as aforesaid". Such a person "shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both".
Either description means simple or rigorous.
| Point | Section 61(2)(a) | Section 61(2)(b) |
|---|---|---|
| Conspiracy to commit | An offence punishable with death, imprisonment for life or rigorous imprisonment for 2 years or upwards | Any other criminal conspiracy |
| Punishment | Same as if he had abetted that offence, where the Sanhita makes no express provision for that conspiracy | Imprisonment of either description up to 6 months, or fine, or both |
Conspiracies with their own express provision
Some conspiracies have their own express provision. For example, Section 148 punishes a conspiracy to wage war against the Government of India with imprisonment for life, or imprisonment of either description up to 10 years, and fine.
What "punished as an abettor" means
Section 49 of the B.N.S. says:
"Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Sanhita for the punishment of such abetment, be punished with the punishment provided for the offence."
The Explanation to Section 49 treats an offence committed "in pursuance of the conspiracy" as committed in consequence of abetment.
- If the planned crime is carried out: each conspirator may face the full punishment for that crime.
- If it is not carried out: Sections 55 and 56 set lower ceilings.
| Section | Planned offence punishable with | Limit when the planned offence is not committed |
|---|---|---|
| Section 55 | Death or imprisonment for life | 7 years and fine; rising to 14 years and fine if an act done in consequence causes hurt to anyone |
| Section 56 | Imprisonment | One-fourth of the longest term; one-half where the abettor or the person abetted is a public servant whose duty is to prevent that offence |
The penalty for conspiracy is measured by the crime that was planned: a serious planned offence attracts punishment as for abetment (Section 61(2)(a) read with Sections 49, 55 and 56), and every other conspiracy attracts up to 6 months, fine or both (Section 61(2)(b)), unless the Sanhita makes an express provision, as in Section 148.
The three problems solved
The group chat: The friends agreed to commit an offence, because burning a shop is mischief by fire, punishable far beyond 2 years. Their agreement sits on the first track, so the criminal conspiracy was complete the moment they agreed, even though nothing was bought and nobody moved. The first group of punishment, Section 61(2)(a), applies.
The locksmith: Aadil is not a conspirator just because the key was misused. The question is what Aadil knew and agreed to. But suppose the customer had shown a photograph of someone else's office door, asked for the key at midnight, and paid five times the usual rate. A court might then infer knowledge from those circumstances, as Somnath Thapa allows.
The sub-contractors: Neha and Farhan agreed to commit a breach of contract. That is a civil wrong, so it is illegal, but it is not an offence. Their agreement sits on the second track. It becomes a criminal conspiracy only when one of them takes a step to carry it out, such as removing the team from the site. Then, on the words of Section 61, it falls in the second group of punishment, Section 61(2)(b).
Quick revision
- Parties: two or more persons; nobody can conspire alone.
- Promise: an agreement with a common object, made with knowledge (Somnath Thapa).
- Purpose: an illegal act, or a lawful act by illegal means; "illegal" includes offences, acts prohibited by law and civil wrongs (Section 2(15)).
- Performance: an overt act is needed only when the object is not an offence (proviso to Section 61(1)).
- Partnership: every member is the agent of the others, the offence continues, and a knowing late joiner joins the whole conspiracy (Devender Pal Singh; Section 8 of the B.S.A.).
- Penalty: measured by the crime that was planned (Section 61(2)).
