Thus, Sections 120-A and 120-B are complementary to each other, the one, defining, the other, the punitive counterpart.
Section 120-A. Definition of Criminal Conspiracy: Where two or more persons agree to do, or cause to be done: (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is called 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 as a result of such conspiracy. It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object (Section 120-A). Section 120-B. Punishment of Criminal Conspiracy: Conspiracy, what is —Conspiracy explained: The literal or dictionary meaning of the word “conspire” is “to plot or scheme together” which means the “joint participation” of several persons in the plot or the scheme; else, the word “together” would be superfluous and have no meaning. If a person were to draw up a plot or a scheme without associating any other person with it, such a person would be plotting alone, not scheming together and consequently would not be said to “conspire” in the literal sense of the term. The literal meaning persists in the legal definition of the offence of conspiracy whereby one person alone can never be guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself. The persons plotting or scheming together and thereby “conspiring” must be two or more in number.
These persons cannot plot or scheme together without a common understanding or a basic agreement between them. It is plain common sense that there should be a meeting of minds between them before they may come together. There must be association and agreement between them. A plot or a scheme is, in its very nature, an advance calculation, a fore thinking of the events that follow or are brought about in materialising it.
It is plain common sense again that there would be no agreement unless there is something agreed upon —a context or subject-matter without which an agreement is unthinkable. It is here that we may travel from common sense into legal technicality, with common sense still as our guide. The agreement would be about doing something.
It cannot be a ‘blank’ or empty agreement that something would be an ‘act’ it may be a single act or a series of acts. Acts include omissions as contemplated in Section 33 of this Code which explains what an act may be. Two soldiers A and B agree to blow up a powder magazine. A is on sentry duty when B passes him. A does not challenge him. A’s failure to challenge B is an illegal omission to facilitate the blowing up of the magazine. An agreement to do that which it is lawful to do would not be an offence. It would not be a conspiracy which even according to popular understanding has a sinister meaning about it.
A conspiracy is never an agreement to do legally permissible acts in a lawful manner, by lawful means. Mens rea (criminal intent) is an essential element of the offence of conspiracy. We may classify acts into two classes: as acts which are illegal and acts which are not illegal, exhausting thereby the ‘universe of discourse’, eliminating the possibility of a third alternative class between these two classes of acts. The agreement, the context of the scheme or the plot, may be about doing an illegal act or causing it to be done or it may be about doing an act which is not illegal but doing it or causing it to be done by means which are illegal. Such an agreement is a criminal conspiracy as defined in Section 120-A. When two or more persons agree (i) to do or (ii) cause to be done— (1) An illegal act, or (2) An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. There can be no conspiracy without an agreement and an agreement implies the concert of at least two persons.
The Agreement is the gist of the offence. In Ajay Aggariual v. Union of India, the Supreme Court upheld that criminal conspiracy is a continuing offence and it is also not necessary that each conspirator should know all details of conspirated scheme. The fact of the case was that appellant a non-resident was running a business in the name of M/s. Sales International at Dubai and four others-resident of India were running similar business at Chandigarh. All five made a conspiracy at Chandigarh to cheat Punjab National Bank. In pursuance of such planning they succeeded to cheat the Punjab National Bank of an amount of Rs. 40, 30,329 on fabricated documents submitted by the appellant to Dubai Bank.
The Court upheld the offence of conspiracy. The end does not justify the means in criminal law. If therefore, one conspires with another to employ illegal means to achieve a legal purpose, one may be convicted of conspiracy. Law may prohibit act but may not make them punishable; such acts would be illegal but would not be offences. It would be an error to think that all legally prohibited acts are necessarily punishable acts; some acts prohibited by law may give rise to a civil liability, and some, though prohibited, may not give rise to any liability, civil or criminal, e.g., the law prohibits irrelevant, vexatious, indecent questions to a witness under cross-examination, such questions may be disallowed without giving rise to any liability civil or criminal. Illegal acts are thus of three kinds: — (1) offences, (2) civil wrongs, and (3) acts which are illegal in the sense of being prohibited without being either offences or civil wrongs.
The definition of a criminal conspiracy as formulated in Section 120-A draws a distinction between an agreement to commit an offence and an agreement of which either the object or the means employed to achieve the object are illegal but no offence is thereby constituted. The section provides that where the agreement is to commit an offence, the bare agreement is a conspiracy without any follow-up action and where the agreement is not an agreement to commit an offence, the agreement does not amount to a conspiracy unless it is followed up by an overt act done by one or more persons in pursuance of such an agreement. Two lovers were not allowed by their parents to get married. Hence, they agreed to commit suicide but, a little later, good sense prevailed upon them and they gave up their intention to commit suicide. While suicide is not punishable as an offence and so it may be said to be an illegal act, an overt act may be necessary to make the agreement an offence of criminal conspiracy, but it would not be possible without an attempt to commit it, which attempt is an offence.
The agreement to attempt to commit suicide, implied in the agreement to commit suicide would be an offence of criminal conspiracy.