Section 61 Criminal conspiracy under The Bhartiya Nyaya Sanhita
CHAPTER IV OF ABETMENT, CRIMINAL CONSPIRACY AND ATTEMPT
Explanation of Legal Terms
1. Illegal Act : Any act forbidden by law or that violates legal provisions.
2. act besides the agreement (Overt Act) : A clear, concrete step taken to further the conspiracy, proving that the conspiracy is actively in progress.
3. Agreement : A mutual understanding between conspirators to work together towards the objective.
Criminal conspiracy.
61. (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:
Explanation of Criminal Conspiracy Section 61
Section 61 defines criminal conspiracy as an agreement between two or more people with a common objective to commit:
1. An illegal act, or
2. A legal act through illegal means.
This agreement is termed a criminal conspiracy only if at least one of the people involved takes an active step toward accomplishing it.
Example: Two individuals, A and B, agree to forge documents to obtain government benefits. Although forgery is illegal, the conspiracy is established when they agree to commit the forgery and take action toward it, such as gathering materials.
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.
In simple terms, this provision means that if people come together and agree to commit a crime, that agreement alone can be treated as a criminal conspiracy. However, if they agree to do something that isn’t, by itself, a crime (like an act that becomes illegal only if done through illegal means), then just the agreement isn’t enough to count as criminal conspiracy.
In this case, at least one of the people involved must take some actual step (called an overt act) toward completing their plan to make it a criminal conspiracy. This step doesn’t need to be big or final—just an action that shows they’re serious about going through with the plan.
Explanation.—It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
This explanation means that, in a criminal conspiracy, it doesn’t matter whether the illegal act is the main purpose of the agreement or just a part of it. Even if the illegal act is only a minor step in achieving a larger goal, the agreement can still be treated as a criminal conspiracy.
(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
Punishment for Criminal conspiracy
Punishment under Section 61(2)
1. Section 61(2)(a) : Where the conspiracy is to commit an offence punishable with severe penalties (e.g., death, life imprisonment, or rigorous imprisonment for two years or more), the conspirators face the same punishment as if they had abetted the crime.
For example, a conspiracy to commit murder would make conspirators liable for the same punishment as an accomplice in the murder.
2. Section 61(2)(b) : Conspiracies to commit lesser offences, or those without a direct offence in the BNS, carry a penalty of up to six months’ imprisonment, a fine, or both. This differentiation ensures that only severe conspiracies lead to stringent punishments, while minor conspiracies are treated with comparatively lenient penalties
Example:
If A and B conspire to commit a robbery (a serious crime punishable by rigorous imprisonment for more than two years), they can be punished as if they had helped in the robbery, even if it hasn’t been completed. However, if they conspire to do something less serious, like a minor regulatory violation punishable by a short jail term, they would face a maximum of six months’ imprisonment or a fine, or both.
READ MORE: Understanding Section 109 Attempt to Murder of the Bharatiya Nyaya Sanhita (BNS): Explained, BNS Sec.351,352: New Criminal intimidation and insult to provoke breach of peace
Ingredients of Section 61 Criminal Conspiracy:
For an action to be considered a criminal conspiracy, the following ingredients must be met:
1. Agreement : There must be an agreement between at least two persons to achieve a common objective.
2. Common Objective: The objective should either be illegal or legally permissible but pursued through illegal means.
3. act besides the agreement (Overt Act) : For agreements that do not amount to an offence on their own, an additional act must be done by one of the parties toward achieving the objective.
Comparison with Section 120B of the Indian Penal Code (IPC)
Section 61 of the BNS has introduced some changes compared to Section 120B of the IPC:
1. Punishment Structure:
– The IPC prescribed imprisonment terms based on the offence planned. BNS categorises the punishment based on the severity, with higher penalties for conspiracies involving serious crimes such as those punishable with death or life imprisonment.
– Section 61(2) of BNS specifies separate punishment for lesser conspiracies, with imprisonment not exceeding six months or a fine.
2 Focused Categorization : BNS specifies punishment tiers based on the severity of the intended crime. The IPC’s Section 120B provided for punishments mainly in proportion to the severity of the crime, but BNS has refined this, offering more clarity on lesser conspiracies.
3. Simplified Language and Explanation : BNS’s language is clearer, aiming to streamline the understanding of conspiracy and its punishment tiers.
4. Need for Overt Act : Both IPC and BNS require an overt act for conspiracies that are not direct offences, but the BNS emphasizes this by embedding it in the language, making it easier for courts to interpret.
Practical Illustration
Suppose A and B agree to set a rival’s property on fire to weaken his business. Here, their common objective (property destruction by fire) is illegal. As soon as they begin preparations (like obtaining flammable materials), they fulfil the requirement for an overt act, making them guilty of criminal conspiracy.
Relevant Supreme Court and High Court Rulings
1. State v. Nalini (1999): The Supreme Court held that a conspiracy does not require all members to commit the act, as mere participation in the plan suffices.
2. Kehar Singh v. Delhi Administration (1988): The court stated that criminal conspiracy exists as soon as there is an agreement, regardless of whether the act is achieved.
3. State of Maharashtra v. Som Nath Thapa (1996): The Supreme Court held that in a criminal conspiracy, once an agreement is proven, each member becomes liable for acts done by the others in pursuance of that conspiracy. The court emphasized that only the conspiracy and a single act furthering it need to be proven, not the actual commission of the crime.
4. Sajjan Kumar v. CBI (2010) : This case emphasized that conspiracy charges require showing a common intent and knowledge of the unlawful objective, even if all parties do not know every detail of the plan. The court held that conspirators must be shown to be aware of the overarching unlawful purpose.
5. Yash Pal Mittal v. State of Punjab (1977) : The court clarified that an agreement itself is an offence, even if the planned act is not completed. Hence, mere knowledge and participation in planning are enough to establish criminal conspiracy.
FAQs about Section 61 Criminal Conspiracy BNS
1. What is the BNS section for criminal conspiracy?
Criminal conspiracy is covered under Section 61 of the Bharatiya Nyaya Sanhita (BNS).
2. What is the punishment for criminal conspiracy under BNS?
If the conspiracy involves a serious offence punishable by death, life imprisonment, or rigorous imprisonment for two years or more, the punishment matches that of abetment of the offence. For other conspiracies, the punishment is imprisonment of up to six months, a fine, or both.
3. Is criminal conspiracy a continuing offence?
Yes, criminal conspiracy is considered a continuing offence, as the conspiracy continues until the plan is fully executed or abandoned.
4. How to prove a criminal conspiracy case?
Proof of criminal conspiracy requires showing that there was an agreement between two or more individuals to commit an illegal act. This can be established through direct evidence or circumstantial evidence that demonstrates a “meeting of minds” among the parties involved.
5. What is the difference between criminal conspiracy and common intention?
Criminal conspiracy involves an agreement to commit an illegal act, requiring a prior meeting of minds. Common intention, on the other hand, refers to the shared intent to carry out an act and does not require a prior agreement.
6. Can a single person be convicted for a criminal conspiracy?
No, criminal conspiracy requires at least two individuals agreeing to commit an unlawful act. A single person cannot be convicted for criminal conspiracy alone.
7. Is Section 61 BNS bailable?
It depends on the severity of the crime involved. For serious crimes (punishable by death or life imprisonment), it is generally non-bailable, while for lesser offences, it may be bailable.
8. Does criminal conspiracy require all participants to actively perform the illegal act?
No, only the agreement and an overt act by at least one party are required to establish conspiracy.
9. What is the difference between criminal conspiracy and abetment?
Conspiracy involves an agreement to commit an act together, while abetment involves one person assisting or encouraging another to commit an act.
10. Can one withdraw from a conspiracy?
Withdrawal is difficult to prove, but renunciation before any overt act can sometimes exempt one from liability if demonstrated clearly.
11. Does the BNS require an overt act for all types of conspiracy?
No, an overt act is only required if the conspiracy is not to commit a direct offence (e.g., planning illegal steps to achieve a legal goal).
12. Is it necessary for all conspirators to know each other’s specific actions?
No, conspirators don’t need to know every detail or each participant’s role. It’s enough that they share a common objective.
13. Can the mere intention to commit an offence amount to a criminal conspiracy?
No, intention alone is insufficient. There must be an agreement among conspirators, and for certain conspiracies, an overt act is required to establish the offence.
14. How does the court determine an ‘overt act’?
An overt act is any clear action taken to further the conspiracy. This could range from buying tools for a planned robbery to renting a location for an illegal gathering.
15. What defences can be used in cases of criminal conspiracy?
A common defence is lack of intent or knowledge of the conspiracy’s unlawful purpose. Proving one’s unawareness of the group’s criminal objective could negate the charge of conspiracy.
16. Does the punishment for conspiracy change if the plan is abandoned in middle ?
No, once an agreement is made and an overt act is done, the offence of conspiracy is established.
| Provision | Cognizable | Bailable | Triable by | Compoundable |
|---|---|---|---|---|
| Section 61 | Yes | Yes (for lesser offences) / No (for serious offenses) | Magistrate / Sessions Court | No |