Section 120B IPC vs Section 61 BNS — Criminal Conspiracy

# Section 120B IPC vs Section 61 BNS — Criminal Conspiracy

Criminal conspiracy is a substantive offence that criminalises the very **agreement** to commit an illegal act, even before the illegal act is actually carried out. Under the IPC, this was defined in **Section 120A** and punished under **Section 120B**. Under the BNS, the corresponding provision is **Section 61**. This page provides an educational comparison.

Section Text

Section 120A IPC (Definition)

> "When two or more persons agree to do, or 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: Provided that no agreement except an agreement to commit an offence shall amount to criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof."

Section 120B IPC (Punishment)

> "(1) 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 years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

>

> (2) Whoever is a party to a criminal conspiracy 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."

Section 61 BNS (Bharatiya Nyaya Sanhita, 2023)

> Section 61 BNS defines criminal conspiracy and provides for its punishment in substantially the same terms as Sections 120A and 120B IPC, consolidating the definition and punishment in a single provision.

Plain Language Explanation

Criminal conspiracy is the offence of **agreeing** with one or more persons to commit an illegal act or to commit a legal act by illegal means. The law punishes the agreement itself — it is not necessary that the illegal act be actually committed.

However, there is an important distinction:

- If the conspiracy is to commit an **offence** (a criminal act defined by law), the mere agreement is sufficient.

- If the conspiracy is to do a non-offence illegal act or a legal act by illegal means, some **overt act** in pursuance of the agreement must be done by at least one party for the conspiracy to be complete.

Criminal conspiracy is a separate and standalone offence. A person can be convicted of conspiracy even if the intended offence is never committed, and even if the intended offence was ultimately committed by someone else.

Key Ingredients / Elements

1. **Agreement between two or more persons** — There must be a meeting of minds between at least two persons.

2. **To do an illegal act or to do a legal act by illegal means** — The object of the agreement must be either an illegal act or a legal act to be accomplished by illegal means.

3. **For non-offence conspiracies: an overt act** — If the object is not itself an offence, some act in pursuance of the agreement must be done.

4. **Knowledge and intention** — Each conspirator must know the essential facts of the conspiracy and must intend to participate.

IPC vs BNS Comparison Table

| Feature | Section 120A/120B IPC | Section 61 BNS |

|---|---|---|

| **Offence** | Criminal conspiracy | Criminal conspiracy |

| **Punishment (serious offences)** | Same as abetment of the offence | Same as abetment of the offence |

| **Punishment (other conspiracies)** | Up to 6 months, or fine, or both | Up to 6 months, or fine, or both |

| **Standalone offence?** | Yes | Yes |

| **Minimum persons** | Two or more | Two or more |

| **Overt act required?** | Only for non-offence conspiracies | Only for non-offence conspiracies |

| **Cognizable** | Yes (for serious offences) | Yes (for serious offences) |

| **Bailable** | Depends on the offence conspired | Depends on the offence conspired |

| **Triable by** | Court that would try the principal offence | Court that would try the principal offence |

| **Substantive change** | — | No substantive change; consolidation of definition and punishment |

Key Differences and Observations

The BNS has **consolidated** the definition (Section 120A IPC) and punishment (Section 120B IPC) of criminal conspiracy into a single provision (Section 61 BNS). The substance remains identical.

Key aspects that continue unchanged:

- The agreement itself is the gist of the offence.

- The proviso distinguishing offence-conspiracies from non-offence-conspiracies is retained.

- The punishment structure — based on the severity of the intended offence — is the same.

- The requirement of two or more persons continues (and consequently, if all other conspirators are acquitted, the remaining accused cannot be convicted of conspiracy).

Criminal conspiracy charges have become increasingly common in complex cases involving financial fraud, organised crime, terrorism, and corruption. The provision's application to digital communications (encrypted messages, dark web planning) presents modern evidentiary challenges.

Important Judgments

1. **State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 — Parliament Attack Case** — The Supreme Court extensively discussed the law of criminal conspiracy, holding that direct evidence of the agreement is rarely available and conspiracy can be inferred from the conduct of the accused and the surrounding circumstances.

2. **Kehar Singh v. State (Delhi Administration) (1988) 3 SCC 609** — The Court discussed the scope of conspiracy in the assassination of Prime Minister Indira Gandhi and held that a conspirator need not know every detail of the plot or every participant — knowledge of the essential object and participation is sufficient.

3. **V.C. Shukla v. State (Delhi Administration) (1980) 2 SCC 665** — Discussed the evidentiary requirements for proving conspiracy and held that circumstantial evidence is often the primary means of proving the agreement.

4. **Yash Pal Mittal v. State of Punjab (1977) 4 SCC 540** — The Court held that criminal conspiracy is a substantive offence and can be charged independently of and in addition to the offence that was the object of the conspiracy.

5. **Esher Singh v. State of A.P. (2004) 11 SCC 585** — Discussed the principle that if all co-conspirators except one are acquitted, the remaining accused cannot be convicted of conspiracy (since conspiracy requires at least two persons). However, there are exceptions when some co-conspirators are not tried or are tried separately.

Practical Implications

- **For legal practitioners:** Conspiracy charges are powerful prosecution tools because they allow the linkage of multiple accused persons and multiple acts into a single narrative. However, proving conspiracy is challenging because direct evidence of the agreement is rare. Practitioners must build a case through circumstantial evidence — phone records, financial transactions, travel patterns, meetings, and communications.

- **For accused persons:** Being charged with conspiracy is serious because it attracts the same punishment as the principal offence. Defence strategies include challenging the existence of any agreement, showing lack of knowledge, or demonstrating withdrawal from the conspiracy before any overt act.

- **For investigating agencies:** Investigation of conspiracy requires careful tracing of communications, financial flows, and movements of the accused. Digital forensics, call detail records, surveillance footage, and financial audit trails are essential tools.

- **For courts:** Courts must be cautious in applying conspiracy charges, ensuring that the evidence establishes a genuine agreement and not merely an association or acquaintance between the accused persons. Guilt by association is not the same as guilt by conspiracy.

Frequently Asked Questions

Has the punishment for criminal conspiracy changed under BNS?

No. The punishment structure remains the same. For conspiracies to commit serious offences (punishable with death, life imprisonment, or RI of 2 years or more), the punishment is the same as for abetment of the offence. For other conspiracies, the punishment is up to 6 months or fine or both.

What is the difference between criminal conspiracy and common intention?

Criminal conspiracy (Section 120B IPC / Section 61 BNS) is a **standalone offence** — the agreement itself is punishable even if the intended crime is never committed. Common intention (Section 34 IPC / Section 3(5) BNS) is a **principle of joint liability** — it requires that the criminal act was actually committed and makes all participants equally liable. Conspiracy can exist without the crime being committed; common intention requires the crime to have been committed.

Can a person be convicted of both conspiracy and the substantive offence?

Yes. Criminal conspiracy and the substantive offence are separate offences. A person can be convicted of both conspiring to commit murder and of murder itself. The conspiracy charge addresses the agreement; the substantive charge addresses the act.

How is conspiracy proved when there is no direct evidence of an agreement?

Courts have consistently held that direct evidence of the agreement is rarely available. Conspiracy can be proved through circumstantial evidence — the conduct of the accused before, during, and after the offence; communications between the accused; financial transactions; movements and meetings; and the coordination and pattern of their actions. The cumulative effect of the circumstances must lead to the irresistible inference of a meeting of minds.

---

*This content is for educational and informational purposes only. It does not constitute legal advice. For specific legal concerns, consult a qualified legal professional. Content is compliant with Bar Council of India guidelines on legal information sharing.*