Criminal conspiracy is defined under Chapter 5A, Section 120A & 120B of the IPC. Earlier, there was no such provision, it was amended by Amendment Act 8 of 1913. Conspiracy under English law is discussed under the case law of Mulcahy v. R 1868, held that an act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of thing conspired for in case of Section 120A a mere agreement is enough, if it is to commit an offence.

Criminal Conspiracy:

According to Section 120A of the IPC, When two or more person agrees to do or cause to be done-

-An illegal act or,

-An act which is not illegal by illegal means

Such agreement is designate a criminal conspiracy.

Ingedients of Criminal Conspiracy:

1. Agreement between two or more person- There should be an agreement between two or more person who is alleged to conspire.

~Topan das v. state of Bombay (1956)

The court held that, “when two or more are charged and all others except one are acquitted, one alone cannot be convicted of the offence of criminal conspiracy.”

~Vinayak v State of Maharastra (1985)

It was held that one person is not punishable under criminal conspiracy if other person is not found.

2. Illegal act- To constitute the criminal conspiracy an agreement to do an act is must which is contrary to or forbidden by law.

Section 43 of the IPC defines the term 'illegal' which refer to an offence or which is prohibited by law.

Sec 120A, states that illegal act- "it is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object".

3. Agreement done by illegal means- Agreement to do an act which even though lawful by unlawful means constitutes conspiracy. The end does not justify the means.

4. Overt act is done to commit an offence- Where the agreement is to do an act which would not be an offence, some overt act in pursuance of the agreement needs to be done in order to constitute a criminal conspiracy under Sec 120A.

Proof of Conspiracy:

It is difficult to give primary evidence for proving a charge of conspiracy as it is always planned in secrecy. Only inferences can be drawn from the illegal omissions committed by the conspirator which can lead to a conviction. In determining the complicity of an individual it is required to prove the circumstantial evidence existing post and prior to the commission of the crime.

In the case of PK Narayanan vs. State of Kerala, 1995, it was held that a mere suspicion without the presence of any direct or indirect evidence instituting the prior meetings of minds cannot be the grounds for conviction.

Punishment of Criminal Conspiracy (Section 120B):

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 year or above. No express provision is made in the code for the punishment of such a conspiracy which is punished in the same manner as if he had abetted such offence. Whoever is a party to criminal conspiracy other than a criminal conspiracy to commit an offence punishable less than 2 years- punished with imprisonment of either description for a term not exceeding 6 month or fine or both.

Special Provision For Prosecution of Conspiracy [Section 196(2), Cr.P.C. 1973]:

Section 196(2) of Cr.P.C., 1973 states that “no court shall take cognizance of the offence of any criminal conspiracy punishable under Section 120B of the IPC other than a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of 2 year or upwards unless the state government or DM has consented in writing to the initiation of the proceeding.”

Special Rule of Evidence for Criminal Conspiracy:

To prove the criminal conspiracy is stated under Sec 10 of the Indian Evidence Act, that “where there is a reasonable ground to believe that two or more person 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 relevant fact as against each of the persons believed to be so conspiracy as well for the purpose of proving the existence of conspiracy as for the purpose of showing that any such person of showing that any such person was a party to it.”

-State of Delhi Administration v. V C Shukla and other 1980 named as “kissa kursi ka case”. Justice Fazal Ali observed-“that to prove criminal conspiracy under Sec 120B IPC there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. Supreme court gave biggest guideline on criminal conspiracy in the case of State of Tamil Nadu through SII v. Nalini 1999, which is based on theory of implied agency. Nalini was originally a condemned prisoner facing death sentence as per the judgment of the Hon'ble Supreme Court. The death sentence was later commuted by the Governor of Tamil Nadu in exercise of power under Article 161 of the Constitution of India

-In the famous Hawala Case i.e. CBI vs. VC Shukla, 1998, the Jain brothers had allegedly bribed well known politicians to gain constructive contract and had recorded these bribe amounts in a diary. The special court dismissed the discharge petitions filed by two prominent politicians whose names were found in the diary. The apex court, on a further appeal, removed the charges levelled against the politicians due to lack of prima facie evidence and the Jain brothers were held liable under Section 120B.