Section 61 BNS (Bharatiya Nyaya Sanhita): Criminal Conspiracy

Section 61 BNS 2023 defines the offence of criminal conspiracy. It holds individuals criminally liable when two or more people enter into an agreement either to commit an illegal act or to accomplish a lawful act by illegal means. The provision highlights that the agreement itself forms the core of the offence, even if the intended offence is not ultimately carried out. To establish criminal conspiracy, the Prosecution must prove that the accused had a common intention to pursue an unlawful objective and that they consciously agreed to do so. In some cases, the law may also require proof of an act carried out in furtherance of that agreement, though the agreement alone often suffices to constitute the offence.

Section 61 BNS treats criminal conspiracy seriously, especially when the objective is to commit a serious offence. If the conspirators aim to commit an act punishable by death, life imprisonment or rigorous imprisonment for a term of two years or more, the punishment for conspiracy mirrors that of abetment for the same offence. Section 61 of Bharatiya Nyaya Sanhita significantly widens the scope of criminal liability by targeting inchoate offences. Unlike other offences that focus on the final act, criminal conspiracy punishes individuals for the mere formation of the agreement with criminal intent. Explore other important Judiciary Notes.

Section 61 BNS Criminal Conspiracy

1. When two or more persons agree with the common object to do, or cause to be done - 

• an illegal act; or 
• 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

1. 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
2. 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.

Note: “The information provided on Section 61 BNS 2023 above has been sourced from the official website, i.e., Indian Code. While the content has been presented here for reference, no modifications have been made to the original laws and orders.”

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Section 61 Bharatiya Nyaya Sanhita 2023 defines criminal conspiracy as an agreement between two or more persons to commit an illegal act, or to complete an act through illegal means. The provision establishes the essence that the agreement itself is criminal if it relates to a heinous offence irrespective of whether the act is ultimately carried out.

Section 61 BNS draws from the principle that collective planning to commit a crime increases the risk to public safety, hence justifying punishment even before the actual commission of the crime.

There are two parts to Section 61 of Bharatiya Nyaya Sanhita:

• Section 61(a): Conspiracies related to serious offences like murder, dacoity, terrorism, etc., where punishment equals that of abetment of the actual offence.
• Section 61(b): Conspiracies for all other offences not covered under (a), which are treated as minor offences with limited punishment.

Section 61 BNS 2023 Essential Ingredients

For an offence to be punishable under Section 61 BNS 2023 certain important ingredients must be present. The essential elements ensure that the act falls under the scope of Criminal Conspiracy. The ingredients of Criminal Conspiracy Section 61 Bharatiya Nyaya Sanhita are as follows :

1. Agreement Between Two or More Persons: There must be a meeting of minds between at least two people. A single individual cannot be held guilty of conspiracy; collaboration is key.
2. Objective to Commit an Illegal Act
   The object under Section 61 BNS must either be:

• An illegal act or
• A legal act through illegal means

1. Overt Act
   According Section 61 of Bharatiya Nyaya Sanhita, there must be some overt act done by one or more of the conspirators in furtherance of the conspiracy. The mere agreement is punishable and no overt act is required.
2. Mens Rea
   The conspirators must have a guilty intention to commit the act under Section 61 BNS. Without a wrongful mental state, the act cannot be termed as a criminal conspiracy.

Section 10 of Indian Evidence Act, 1872 addresses the admissibility of evidence in cases of conspiracy. It stipulates that when a conspiracy to commit an offence is established, the actions of one conspirator are considered to be those of all conspirators. Any statement, action, or written document made by any conspirator as part of their shared intention, can be used as evidence against all conspirators to demonstrate the existence of the conspiracy. However, certain conditions must be met before such evidence is admitted. There must be reasonable grounds to believe that two or more individuals have conspired to commit an offence or a wrongful act.

Section 61 BNS: Nature and Scope

Section 61 BNS 2023 divides criminal conspiracy into two categories based on the seriousness of the intended offence. The nature of the offence determines whether Section 61 of BNS is cognizable or non-cognizable and bailable or non-bailable. The following is a simplified table for quick reference:

Clause	Offence	Punishment	Cognizable or Non-Cognizable	Bailable or Non-Bailable	Court
61(a)	Conspiracy to commit a serious offence (death/life imprisonment/≥2 yrs rigorous imprisonment)	Same as abetment of the intended offence	Depends on the nature of the intended offence	Depends on the intended offence	Same court as for the principal offence
61(b)	Other criminal conspiracies	Imprisonment up to 6 months, or fine, or both	Non-Cognizable	Bailable	Magistrate First Class

Criminal Conspiracy v. Abetment

Abetment and criminal conspiracy are two distinct concepts in criminal law, though both involve cooperation in unlawful acts. The following are the difference between Abetment and Criminal Conspiracy :

Aspect	Abetment	Criminal Conspiracy
Definition	Encouraging, instigating or aiding someone to commit an offence	Agreement between two or more persons to commit an illegal act
Primary Requirement	A primary offence must be committed or attempted	The agreement itself constitutes the offence; execution is not necessary.
Independent offence	Not an independent offence; tied to a principal crime.	An independent offence under Section 120A Indian Penal Code (Now Section 61 BNS)
Participation	Requires active instigation or assistance.	Requires agreement and planning and not necessarily active participation.
Legal Provisions	Defined under Section 107 of the IPC (Now Section 45 BNS)	Defined under Section 120A of the IPC (Now Section 61 BNS)
Nature of Liability	Liability arises only if the offence is attempted or committed.	Liability arises from the agreement itself.
Intent	Requires a criminal intent or mens rea.	Requires a criminal intent or mens rea.
Collaboration	Involves multiple parties working together toward an unlawful goal.	Involves multiple parties working together toward an unlawful goal.
Punishment	Individuals can be punished even if they do not commit the principal offence.	Individuals can be punished even if they do not commit the principal offence.

Criminal Conspiracy v. Common Intention

Section 34 and Section 120A IPC (Now Section 61 BNS) both deal with criminal liability but differ in their requirements and scope. The following is the difference between Common Intention and Criminal Conspiracy :

Aspect	Section 34 IPC (Now Section 3(8) BNS)	Section 120A IPC (Now Section 61 BNS)
Active Participation	Requires active participation in the act committed.	No active participation required; only the agreement matters.
Common Intention	Act done in pursuance of a common intention.	Only the intention to commit an illegal act is required, not necessarily an act.

Section 61 BNS Landmark Judgements

The following are some of the landmark judgements that illustrate how courts have examined different aspects of criminal conspiracy based on the facts, evidence and conduct of the accused individuals.

1. Kehar Singh & Ors v. State (Delhi Administration) 1988
   This case concerned the assassination of Prime Minister Indira Gandhi. Kehar Singh was accused of participating in the conspiracy, even though he did not carry out the murder himself.
   The Supreme Court found that the conspiracy could be inferred from surrounding facts and the behavior of the accused. There was enough circumstantial evidence to prove the existence of an agreement among the conspirators which led to his conviction.
2. State v. Nalini 1999

In State of Tamil Nadu v. Nalini the Supreme Court held that an agreement between two or more individuals to commit an illegal act constitutes criminal conspiracy (Section 61 BNS) irrespective of whether the act is carried out. The Court explained that not all conspirators need to actively participate in each act for the conspiracy charge to apply. The agreement can be inferred and the prosecution is not required to prove explicit details of what was agreed upon. In this case, the accused were convicted under Section 120B and Section 302 of the IPC.

1. State of Maharashtra v. Som Nath Thapa & Ors 1996
   In this case, military officers and civilians were charged with attempting to sell classified military documents to foreign entities. The Court held that a person may be held liable for conspiracy if there is sufficient preliminary evidence showing involvement in the unlawful agreement. However, the court clarified that mere awareness of the conspiracy is not enough and there must be active participation.
2. Ram Narayan Popli v. CBI 2003
   The case involved allegations that bank officials, including Ram Narayan Popli, colluded with businessmen to grant fraudulent loans secured by fake documentation. The Court ruled that the conspiracy (Section 61 BNS) could be established through circumstantial evidence including the consistent actions of the accused and the sequence of events that led to the financial fraud.
3. Yakub Abdul Razak Memon v. State of Maharashtra 2013
   Yakub Memon was prosecuted for his role in the 1993 Bombay bombings. Although he did not plant the explosives himself, he played an important role in funding and enabling the execution of the attacks. The Supreme Court confirmed his conviction, stating that his active assistance and logistical support clearly demonstrated his involvement in the conspiracy (Section 61 BNS).
4. State (NCT of Delhi) v. Navjot Sandhu 2005
   This case dealt with the 2001 Parliament attack, where several individuals were accused of plotting and facilitating the assault. The Court concluded that the existence of a conspiracy could be determined through indirect evidence. The coordination and actions of the accused pointed to their collective involvement in planning the attack.
5. Sajeev v. State of Kerala 2023

In the case of Sajeev v. State of Kerala, the Supreme Court reaffirmed the essential elements of proving criminal conspiracy under Section 120A IPC (Now Section 61 BNS). The case involved a group of individuals who conspired to mix methyl alcohol with spirit for illegal profit, resulting in several deaths and injuries. The Court upheld the conviction of the accused and stated that even if conspirators committed individual offences, they would all be liable for the crimes. The Court emphasized that conspiracy is often established through circumstantial evidence, as direct proof is rarely available.

Conclusion

Section 61 BNS 2023 acknowledges the offence of criminal conspiracy by penalizing the agreement to commit illegal acts. It highlights the role of intent and collaboration, even before an offence is executed. It reinforces the preventive nature of criminal law to deter organized and premeditated offences.