Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Criminal Conspiracy (S. 61 BNS)

One of the most serious offences under the Bharatiya Nyaya Sanhita, 2023 (BNS) is criminal conspiracy, which involves a group of people planning and carrying out illegal activities. 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 primary goal of criminal conspiracy is to commit an offence and achieve the desired result through illegal means. Criminal conspiracy can take many forms, such as plotting a robbery, carrying out a murder, or spreading false information.

Criminal conspiracy represents one of the most significant forms of collective criminal liability in criminal jurisprudence. It addresses situations where two or more individuals agree to commit an unlawful act or to achieve a lawful objective through unlawful means. The essence of conspiracy lies not necessarily in the commission of the offence itself, but in the agreement and the shared intention among the conspirators to engage in illegal conduct.

Criminal conspiracy is unique because liability may arise even before the planned offence is executed. The law therefore focuses on the meeting of minds among conspirators, the intention to pursue an unlawful objective, and in certain cases the performance of an overt act in furtherance of the agreement. Through this provision, the legal framework seeks to address complex crimes that are often carried out through planning, coordination, and secrecy. This article examines the concept of criminal conspiracy under the Bharatiya Nyaya Sanhita, exploring its essential ingredients, legal framework, and judicial interpretation.

Criminal Conspiracy:

Section 61 BNS:

Criminal Conspiracy:

(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:

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.

Explanation:

It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

(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.

Definition of Criminal Conspiracy (S. 61(1) BNS):

Criminal conspiracy under the Bharatiya Nyaya Sanhita, 2023 refers to an agreement between two or more persons to commit an illegal act or to accomplish a lawful act by illegal means. The essence of the offence lies in the meeting of minds among the conspirators to pursue a common unlawful objective. However, when the agreement relates to an act that is not itself an offence, the law requires that at least one conspirator perform an overt act in furtherance of the agreement.

Essential Ingredients of Criminal Conspiracy (S. 61(1) BNS):

• There was an agreement between two or more persons;
• The object of the agreement was illegal;
• The object of the agreement was to do an illegal act or to do a legal act carried out by illegal means;
• There was a meeting of minds (Common Intention);
• There was participation of each conspirator.

The proviso affixed elucidates that merely entering into an agreement would suffice to constitute the offence of criminal conspiracy. Nevertheless, when there is an involvement of illegal means then it is necessary to show that some overt act has been committed by the parties who had entered in an agreement corresponding to the same.

Examples of Criminal Conspiracy:

• If A and B plan together to steal money from a bank, decide the time, method, and roles for the theft, they have already committed criminal conspiracy—even if the theft is not ultimately carried out.
• X, Y, and Z agree to kill a rival and arrange weapons and a plan of attack. The agreement to commit murder constitutes criminal conspiracy, even if the murder does not occur.
• If two business partners secretly agree to cheat customers by selling fake products as genuine, their agreement to deceive customers amounts to criminal conspiracy.
• If three persons plan to kidnap a wealthy person’s child for ransom, assign responsibilities such as surveillance and transportation, they are guilty of conspiracy once the agreement is formed.
• If a government official and a contractor agree to manipulate tender documents in exchange for bribes, their coordinated plan to misuse official power constitutes criminal conspiracy.
• If a group of hackers agree to break into a company’s database and steal confidential data, the agreement itself is conspiracy even before the hacking takes place.
• A, B and C did all the planning to rob a bank. D was just driving them to the bank and didn’t know about this plan. D will not be held liable. Only A, B and C will be held liable.

Examples of Overt Acts in Criminal Conspiracy:

• If A and B agree to commit robbery and A purchases a gun or knife to use in the robbery, the purchase of the weapon is an overt act in furtherance of the conspiracy.
• Three persons plan to kidnap a businessman. If one conspirator follows the victim for several days to observe his routine, that surveillance becomes an overt act.
• If conspirators plan a bank robbery and one of them rents a car to be used as a getaway vehicle, the act of renting the car is an overt act.
• If two individuals agree to cheat a bank and one of them prepares forged documents, the preparation of those documents constitutes an overt act.
• When conspirators send instructions or plans through messages or emails to coordinate the execution of a crime, such communication may be considered an overt act showing progress toward the criminal objective.

Criminal Conspiracy is Continuing Offence:

Criminal conspiracy under BNS is considered a continuing offence because the conspiracy continues as long as the agreement and the unlawful objective are being pursued. The offence does not end with the initial agreement; it persists until the conspirators either accomplish their objective or abandon the plan.

Examples:

• A, B, and C agree to cheat investors through a fake investment scheme. They continue collecting money from different victims over several months. The conspiracy continues during the entire period because the illegal plan is still being executed.
• If a group agrees to smuggle gold or drugs across borders repeatedly, and members keep coordinating transport, storage, and distribution, the conspiracy remains active as long as the illegal activity continues.
• Conspirators agree to kidnap a wealthy person and spend weeks tracking the victim’s movements, arranging vehicles, and preparing a hideout. The conspiracy continues throughout this preparation phase until the objective is either completed or abandoned.
• A government official and a contractor may agree to manipulate multiple tender processes in exchange for bribes over time. Each coordinated act in furtherance of the plan keeps the conspiracy alive.
• A group of hackers may agree to continuously hack bank accounts and distribute stolen funds among members. As long as the coordinated activity continues, the conspiracy is treated as a continuing offence.
• A and B planned to rob a bank. Later on, C also joined them. Later on, they were caught. A, B, C will be held liable. Even though C joined them later, he will be held liable equally as A and B.

Doctrine of Agency in Criminal Conspiracy

The Doctrine of Agency is an important principle applied in cases of criminal conspiracy under BNS. According to this doctrine, each conspirator is considered an agent of the others, and the acts performed by one conspirator in furtherance of the common design are treated as acts done on behalf of all members of the conspiracy. Thus, once individuals agree to pursue an unlawful objective, every conspirator becomes responsible for the actions of the others that are carried out to achieve the common plan, even if they did not personally participate in those specific acts.

Key Features of the Doctrine of Agency:

• Mutual Representation: Each conspirator represents the others in executing the unlawful plan. Therefore, the actions of one member can legally bind the entire group.
• Liability for Acts of Co-Conspirators: If one conspirator commits an act to further the conspiracy, all members of the conspiracy may be held liable for that act.
• Acts Must Be in Furtherance of the Common Objective: The doctrine applies only when the act performed by a conspirator is within the scope of the agreed plan. Acts outside the conspiracy may not create liability for others.
• Participation Not Required in Every Act: A conspirator does not need to be present at the crime scene or actively perform every step of the offence to incur liability.

Examples:

• A, B, and C agree to rob a bank. A enters the bank with a weapon. B waits outside in the getaway car. C monitors police movement. Even if only A actually commits the robbery, B and C are jointly liable because they were part of the conspiracy.
• X, Y, and Z agree to kill a rival. X supplies the weapon. Y lures the victim to a location. Z carries out the killing. All three conspirators are jointly liable for murder, even though Z physically committed the act.
• Three partners run a company and agree to cheat customers by selling fake products. One partner handles advertising. Another manages sales. The third collects payments. Each partner becomes jointly liable for cheating because they share the illegal objective.
• A group agrees to distribute illegal drugs. One person imports the drugs. Another stores them. Others sell them to customers. Even if a member only stores the drugs, they are jointly liable for the entire conspiracy.
• A hacker group plans to steal bank data. One member writes the malware. Another hacks the system. Another transfers stolen money. Every participant becomes jointly responsible for the offence since all acts were done in furtherance of the conspiracy.

Proof of Conspiracy:

It is difficult to adduce primary evidence for proving a charge of conspiracy as it is always planned in secrecy. Only inferences drawn from the illegal omissions committed by the conspirators can lead to a conviction under this section. Therefore, 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. Inferences can be drawn from the conduct and circumstances of the accused. A mere suspicion, without the presence of any direct or indirect evidence instituting the prior meeting of minds, cannot be the grounds for conviction.

According to Section 8 of the Bharatiya Sakshya Adhiniyam, 2023 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 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. The involvement of the parties forming an agreement must be proved by prima facie evidence.

Difference between Criminal Conspiracy and Criminal Intention:

Section 61(1) BNS	Section 3(5) BNS
According to Section 61(1) BNS, criminal conspiracy occurs when two or more persons agree to commit an illegal act or a legal act by illegal means.	Under Section 3(5) BNS, when a criminal act is done by several persons with a common intention, each person is liable as if he alone committed the act.
Section 61(1) of the Bharatiya Nyaya Sanhita, 2023 defines criminal conspiracy.	Section 3(5) of the Bharatiya Nyaya Sanhita, 2023 defines criminal intention.
Section 61(1) BNS requires only an agreement to commit an illegal act.	Section 3(5) requires a “meeting of minds” to act in furtherance of a common intention.
Under Section 61(1) BNS there must be an agreement to commit an illegal act.	Active participation is required for Section 34 (“doing” an act),
Section 61(1) BNS creates criminal conspiracy as a substantive offence	Section 3(5) is a rule of evidence (joint liability) that does not create a specific offense.
Section 61(1) BNS creates criminal conspiracy itself as substantive offence.	Section 3(5) cannot be read alone. It must be read with a Section of substantive offence.
Example: A and B plan together to rob a bank and agree on the plan. Even if the robbery has not yet occurred, the agreement itself can amount to criminal conspiracy.	Example: A and B attack C together intending to kill him. If A actually stabs C while B assists, both A and B are liable because of common intention.

Judicial Analysis:

In Mulcahy v. Regina, HL 1868 Case, where two persons were accused of conspiring to commit an unlawful act. The issue before the court was whether a person could be convicted of conspiracy when only two persons were involved and one of them could not legally be guilty of the offence. The Court said that when two or more persons agree to carry it into effect the very plot is an act itself, and the act of each party, promise against promise actus contra actum capable of being enforced, if lawful, punishable if for criminal object or for the use of criminal means. This case became an important authority in explaining the nature of conspiracy and has been widely cited in common law jurisdictions, including in interpretations of criminal conspiracy under the Bharatiya Nyaya Sanhita, 2023. It established that the unlawful agreement between two or more persons forms the foundation of the offence.

In Haradhan v. Union of India, AIR 1990 SC 1210 case, where, the petitioner, Haradhan Chakrabarty, was an ex-sepoy in the Indian Army. He was accused of abetment by conspiracy relating to the offence of theft allegedly committed by Major Trilok Chand. The allegation was that Haradhan and several others had conspired and assisted in the commission of theft by the Major. The issue was whether a person can be convicted for abetment or criminal conspiracy when the principal offender and all other alleged conspirators are acquitted. The Supreme Court observed that two or more persons must be parties to such an agreement and one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself.

In State of Tamil Nadu v. Nalini, 1999 Cr LJ 3124 (SC) case, where tormer Prime Minister Rajiv Gandhi was assassinated on 21 May 1991 at Sriperumbudur, Tamil Nadu, by an LTTE suicide bomber. Investigations revealed a large conspiracy involving LTTE members and Indian associates, including Nalini, who allegedly provided logistical support and assisted the conspirators. The CBI’s Special Investigation Team investigated the case and several accused were prosecuted under the IPC and TADA. The case was tried by a designated TADA court, which convicted several accused, including Nalini, for criminal conspiracy, murder, and terrorism-related offences and the case reached the Supreme Court on appeal from the TADA court’s conviction. The Supreme Court observed that when two or more person agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. Thus, there have to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy. The Supreme Court had laid following important points relating to criminal conspiracy:

1. Association of accused with one of main accused or even his knowledge about conspiracy would not make him conspirator as agreement is sine qua non of agreement,
2. Accused harbouring main accused persons knowing fully well their involvement in the commission of offence is itself not sufficient to infer that he was member of conspiracy,
3. If accused had no knowledge of conspiracy, then his mere association with the main conspirator would not make him member of the conspiracy,
4. It is not necessary for the conspirator to be present at the scene of the crime.

In Ajay Aggarwal v. Union of India, AIR 1993 SC 1637 case, where the 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 Supreme Court observed that criminal conspiracy is a continuing offence and it is also not necessary that each conspirator should know all details of the conspirated scheme.

No charge of criminal conspiracy can succeed unless if it shown that several persons have agreed to do an illegal act or a lawful act by unlawful means. This implies that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of the offence. A mere knowledge is not sufficient for common intention. Common intention requires a distinct agreement i.e., Meeting of mind to do the thing together whereas a mere knowledge does not manifest meeting of minds to do that things together. Knowledge on its own cannot create a liability for its criminal conspiracy. Burden lies upon prosecution to prove that there was not merely knowledge that offence may be committed rather there has to be a clear proof of common intention (agreement) to commit the offence together or committed by someone else.

In Abdul Rehman v. Emperor, AIR 1935 Cal 316 case, the Court observed that criminal conspiracy may come into existence, and may and will persist so long as the persons constituting the same remain in agreement, and so long as they are acting in accord in furtherance of the objects for which they entered into agreement

In Topan Das v State of Bombay, AIR 1956 SC 33 case, Where Topan Das was charged with criminal conspiracy for allegedly agreeing with another person to commit an illegal act. During the trial, the co-accused was acquitted for lack of evidence, but Topan Das was still convicted. He appealed to the Supreme Court, contending that a single person cannot be convicted for conspiracy when the other alleged conspirator has been acquitted. The court held that the person must not be alone in conspiring for the offence. The accused was acquitted from the case because he was the sole person who had conspired for the crime. The acquittal of this case meant that the person was liable for all the other offences that had been committed and proved.

In Shiv Narayan v. State of Maharashtra, AIR 1980 SC 439 case, Where Shiv Narayan and others were accused of entering into a criminal conspiracy to commit illegal acts. The prosecution relied mainly on circumstantial evidence and the conduct of the accused to prove the agreement between them. The accused denied the conspiracy, arguing that there was no direct evidence of an agreement, and the matter was ultimately decided by the Supreme Court. The Court held that once a conspiracy to commit an illegal act is proved, act of one conspirator becomes the act of another.

In Sushil Suri v. Central Bureau of Investigation, AIR 2011 SC 1713 case, where two Chartered Accountants had dishonestly and fraudulently opened several fictitious accounts in some banks with an intention and object to facilitate of bank finance for the purpose other than stated in the loan application. The accused persons submitted to the bank, fake and forged invoices of fictitious/non-existent supplier. The Supreme Court held that the essential ingredient of criminal conspiracy is agreement to commit offence between accused and the commission of crime alone is enough to bring about a conviction under section 120B. The appellant with Directors and Chartered Accountant defrauded revenue and in the process cheated the public exchequer of crores of rupees and were convicted under section 120B, 420, 409 and 471.

A conspiracy is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts.

In Leo v. Supdt. District Jail, AIR 1958 SC 119 case, the Court observed that the conspiracy to commit a crime and the crime itself are two different offences. Conspiracy precedes the commission of crime and is complete before the crime is attempted or completed.

Difference between Section 45 (secondly) & Section 61(1) BNS:

Criminal conspiracy under Section 61(1) BNS is broader as compared to section 45 BNS (secondly) read with section 46 BNS. In section 45 BNS (secondly) the agreement can be only for an offence and the criminal liability for abetment by conspiracy will arise only upon some act or illegal omission committed by either of them in pursuance of criminal conspiracy.

Section 45 BNS (secondly) does not include the cases of agreement to do an act prohibited by law or a civil wrong. Whereas section 61(1) BNS includes both of them and also it punishes the criminal conspiracy to commit an offence per se even if no illegal act or omission has been committed in pursuance thereof. In the cases of criminal conspiracy to commit a civil wrong or an act prohibited by law, it is essential that one of the parties should have committed some act or illegal omission in pursuance thereof.

Punishment for Criminal Conspiracy S. 61(2) BNS:

Section 61(2) BNS specifies the punishment given to the persons convicted for the crime of conspiracy. They may be punished with death or rigorous imprisonment. The nature of this section is punitive. The scope of this section is limited to providing punishments after the accused has been convicted.  It is a settled law that for an offence under this section, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication.

If the purpose of the conspiracy is to commit a criminal offence, the punishment for criminal conspiracy is specified in the section dealing with the specific offence. For example, if the goal of the criminal conspiracy is to commit murder, the punishment for criminal conspiracy is the same as for murder, which is life imprisonment or the death penalty. In addition to the above, the court may also impose a fine on the accused. The amount of fine can vary depending on the nature and gravity of the crime.

According to Section 61(1)(a), if the criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards then punishment of such criminal conspiracy is as if he had abetted such offence.

According to Section 61(1)(b), if the criminal conspiracy to commit an offence other tan mentioned in 61(1)(a), then punishment is imprisonment of either description for a term not exceeding six months or with fine or with both.

In Kehar Singh v State, AIR 1988 SC 1883 case, the accused were charged with criminal conspiracy to assassinate Prime Minister Indira Gandhi. The court determined that the accused conspired with others to commit the crime and actively participated in the assassination. The court determined that the accused had committed the crime of criminal conspiracy, and the penalty was death.

Conclusion:

Criminal conspiracy remains a significant offence under the Bharatiya Nyaya Sanhita, as it addresses the danger posed by collective planning of unlawful acts. The law recognizes that when individuals combine and agree to commit an illegal act, the threat to society becomes greater than when a crime is committed by a single person. Therefore, the offence focuses on the agreement or meeting of minds between two or more persons, even if the planned act has not yet been executed.

The provisions relating to criminal conspiracy ensure that the law can intervene at an early stage, preventing the commission of serious crimes before they occur. Courts have consistently emphasized that conspiracy is usually proved through circumstantial evidence, such as the conduct of the accused, surrounding circumstances, and their actions before and after the offence.

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