Section 120A-120B IPC vs Section 61 BNS — Criminal Conspiracy

In India, Section 61 of the Bharatiya Nyaya Sanhita, 2023 (BNS) replaced Sections 120A and 120B of the Indian Penal Code, 1860 (IPC) on 1 July 2024. The definition and punishment now sit in one section. The definition adds the words "with the common object"; the punishments and classification are unchanged.

At a glance

The CrPC First Schedule classified both limbs of Section 120B IPC in the same terms, so the classification is unchanged.

What changed

• Modified — the definition (Section 61(1), IPC 120A). "When two or more persons agree to do, or cause to be done" becomes "When two or more persons agree with the common object to do, or cause to be done". "Common object" is not defined in Section 2 BNS; elsewhere in the Sanhita the words appear only in Sections 189 to 191 (unlawful assembly and rioting). On a reading of the text, the added words spell out that the agreement must be directed to a shared end.
• Minor edit — numbering of the two objects. "(1) an illegal act, or (2) an act which is not illegal by illegal means" becomes "(a) an illegal act; or (b) an act which is not illegal by illegal means".
• Identical — the proviso and Explanation. "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." The Explanation says it is immaterial whether the illegal act is the ultimate object of the agreement or merely incidental to it.
• Minor edit — punishment (Section 61(2), IPC 120B). Section 120B's sub-sections (1) and (2) become clauses (a) and (b) of Section 61(2). "Where no express provision is made in this Code" becomes "in this Sanhita". The punishments are the same words.
• Minor edit — placement in a new chapter. Sections 120A and 120B formed Chapter VA of the IPC, "Criminal Conspiracy", inserted by Act 8 of 1913 (footnote 3 in the India Code text). Section 61 sits in Chapter IV of the BNS, "Of abetment, criminal conspiracy and attempt", between the abetment sections (45 to 60) and the general attempt section (62).
• Minor edit — consent (cross-references renumbered); classification and compounding unchanged. Section 217(3) BNSS refers to "sub-section (2) of section 61" and to "section 215" where Section 196(2) CrPC referred to "section 120B" and "section 195". See "What this means in practice".

Statutory text (relevant extract)

Extract, Section 120A IPC (repealed from 1 July 2024), opening words:

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:

Extract, Section 61 BNS:

(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.

(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;

How it works — the ingredients

1. Two or more persons. One person cannot agree with himself (Topandas, below).
2. An agreement with the common object. The agreement is the core of the offence. It need not be proved by direct evidence and may be inferred from conduct (Navjot Sandhu, below).
3. Its object: an illegal act, or a legal act by illegal means. "Illegal" in Section 2(15) BNS (formerly Section 43 IPC) covers "everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action". A conspiracy can therefore aim at something short of an offence.
4. An overt act — only where the object is not an offence. Under the proviso, an agreement to commit an offence is complete on agreement. Any other agreement, such as one to do something that is merely prohibited or actionable, needs "some act besides the agreement" by at least one party in pursuance of it.

How the punishment works. Section 61(2)(a) borrows the abetment scale for serious offences. The Act's own provisions give the result:

• If the offence is committed in consequence, Section 49 BNS applies the punishment provided for the offence. Illustration (b) to Section 49: A and B conspire to poison Z, A procures the poison and B administers it; "B is guilty of murder. A is guilty of abetting that offence by conspiracy, and is liable to the punishment for murder."
• If an offence punishable with death or life imprisonment is not committed, Section 55 BNS provides up to seven years and fine, or up to fourteen years and fine if hurt is caused. For other offences punishable with imprisonment, Section 56 BNS provides up to one-fourth of the longest term. On a reading of Section 61(2)(a), these provisions supply the conspiracy punishment where no express provision is made.

Express provisions elsewhere displace Section 61(2) where they apply, for example Section 148 BNS (conspiracy to commit offences punishable by Section 147, waging war; no act in pursuance needed), and the "conspires" limbs of Section 111(3) BNS (organised crime) and Section 113(3) BNS (terrorist act).

What this means in practice

For the investigating officer and prosecutor

• Plead the agreement, its parties and its object, and the offence or illegal act it aimed at, which fixes the punishment and classification under Section 61(2). Where the object is not an offence, plead and prove the act done in pursuance of it.
• If the charge names specific co-conspirators, the conviction of one depends on the case against the others. Where there are unidentified participants, the charge should say so (Topandas).
• For a conspiracy whose object is not an offence punishable with death, life imprisonment or rigorous imprisonment of two years or more (the Section 61(2)(b) category), no court may take cognizance without the written consent of the State Government or District Magistrate (Section 217(3) BNSS). The exception is a conspiracy to which Section 215 BNSS applies. Section 217(4) allows a preliminary police investigation, by an officer not below the rank of Inspector, before consent is given.

For the accused and defence advocate

• Bail, arrest and trial court follow the object offence for a Section 61(2)(a) conspiracy; a Section 61(2)(b) conspiracy is non-cognizable and bailable.
• Test whether the evidence shows an agreement, or only knowledge, association or parallel conduct. Navjot Sandhu (below) adopts the statement that mere knowledge, or even discussion, of a plan is not by itself enough.
• Conspiracy is not compoundable: Section 61 is not in either table in Section 359 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and Section 359(9) forbids composition otherwise.

For a victim or complainant

• The facts alleged must show an agreement between two or more persons to do an illegal act, or a legal act by illegal means (Section 61(1)); allegations that show no such agreement do not disclose a criminal conspiracy.

Judgments that still matter

Topandas v. The State of Bombay, [1955] 2 S.C.R. 881 (1955 INSC 54) — 14 October 1955. Bhagwati J., for a Bench with Venkatarama Ayyar and B.P. Sinha JJ., held that because Section 120A requires two or more persons, where four named individuals were charged under Section 120B and three were acquitted, the remaining accused "could never be held guilty of the offence of criminal conspiracy". The charge was against the four named persons only, not with others unknown. The conviction under Section 120B was quashed; his convictions for other offences stood. The report shows no paragraph numbers. Section 61(1) BNS keeps "two or more persons".

Major E.G. Barsay v. State of Bombay, [1962] 2 S.C.R. 195 (1961 INSC 177) — 24 April 1961. Subba Rao J., for a Bench with Raghubar Dayal J., upheld a conspiracy charge against public servants and private persons to misappropriate army stores. The Court held: "The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done." It added that all the parties were guilty of conspiracy "though for individual offences all of them may not be liable", so persons who could not themselves commit an offence confined to public servants could still conspire to commit it. The appeals were dismissed. The report shows no paragraph numbers.

Yash Pal Mittal v. State of Punjab — Supreme Court, 3 November 1977. Goswami J., for a three-Judge Bench, dismissed an appeal challenging a trial on a conspiracy charge relating to forged passports. The Court held that "The very agreement, concert or league is the ingredient of the offence", that not all conspirators need know every detail "as long as they are co-participators in the main object of the conspiracy", and that "There must be unity of object or purpose but there may be plurality of means". On a reading of the text, the words "with the common object" in Section 61(1) BNS state expressly the unity of object this judgment describes.

State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru, [2005] Supp. 2 S.C.R. 79 (2005 INSC 333) — 4 August 2005. In the Parliament attack appeals, P. Venkatarama Reddi J. (for a Bench with P.P. Naolekar J.) set out the law of conspiracy at para 12. The Court said that Sections 120A and 120B "made conspiracy a substantive offence and rendered the mere agreement to commit an offence punishable". It distinguished abetment: "Whereas under Section 120A, the essence of the offence of criminal conspiracy is a bare agreement to commit the offence, the abetment under Section 107 requires the commission of some act or illegal omission pursuant to the conspiracy." It adopted, as stating the law "succinctly", a textbook passage that "Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough". Relying on earlier decisions, the Court noted that conspiracies are mostly proved by circumstantial evidence. At para 22 the Court confirmed Mohd. Afzal's death sentence, altered Shaukat's conviction to one under Section 123 IPC, and dismissed the State's appeals against two acquittals.

These judgments construe words that Section 61 BNS repeats; the new words "with the common object" have not been construed in a judgment read for this page. On a reading of the text, the older reasoning remains relevant, and the added words are consistent with the unity of object described in Yash Pal Mittal.

Which law applies to your case

Section 358(2) BNS provides that the repeal of the IPC does not affect penalties incurred or proceedings in respect of offences under it, which may be instituted, continued or enforced "as if that Code had not been repealed". On a reading of that text, a conspiracy formed and acted on before 1 July 2024 is charged under Section 120B IPC, and investigations or trials pending on that date continue under the CrPC (Section 531(2)(a) BNSS). The text does not say expressly how a conspiracy that began before 1 July 2024 and continued after it is to be charged; that is a question for the court on the facts. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNS section for criminal conspiracy? Section 61 of the Bharatiya Nyaya Sanhita, 2023 replaces Sections 120A and 120B of the Indian Penal Code, 1860 from 1 July 2024. Section 61(1) defines criminal conspiracy, as Section 120A did, and Section 61(2) sets the punishment, as Section 120B did.

What changed in the definition of criminal conspiracy? Section 61(1) BNS adds the words 'with the common object': a criminal conspiracy is formed 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. The proviso requiring an act besides the agreement, except where the agreement is to commit an offence, and the Explanation are unchanged.

What is the punishment for criminal conspiracy under Section 61 BNS? Under Section 61(2)(a) BNS, a party to a conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for two years or more is punished as if he had abetted that offence, unless the Sanhita makes express provision. Under Section 61(2)(b), any other criminal conspiracy is punishable with imprisonment of either description up to six months, or fine, or both. These are the Section 120B IPC punishments.

Is criminal conspiracy bailable under the BNS? It depends on the object. The First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023 makes a Section 61(2)(a) conspiracy cognizable or non-cognizable, and bailable or non-bailable, according as the offence that is its object, and triable by the court that tries abetment of that offence. A Section 61(2)(b) conspiracy is non-cognizable, bailable and triable by a Magistrate of the first class, as under the CrPC First Schedule.

Can one person alone be convicted of criminal conspiracy? Section 61(1) BNS, like Section 120A IPC, requires an agreement between two or more persons. In Topandas v. State of Bombay (1955 INSC 54), four named persons were charged under Section 120B IPC and three were acquitted; the Supreme Court held that the fourth could not be convicted of conspiracy on that charge. The charge did not allege conspiracy with other persons unknown.

What is the difference between criminal conspiracy and abetment by conspiracy? Under Section 61 BNS the agreement itself is the offence, subject to the proviso for agreements to do something that is not an offence. Abetment by conspiracy under Section 45(b) BNS requires an act or illegal omission to take place in pursuance of the conspiracy. In State (N.C.T. of Delhi) v. Navjot Sandhu (2005 INSC 333) the Supreme Court drew the same distinction between Sections 120A and 107 IPC.

Is sanction needed to prosecute a criminal conspiracy? For a conspiracy punishable under Section 61(2) BNS, other than a conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for two years or more, Section 217(3) BNSS bars cognizance unless the State Government or the District Magistrate has consented in writing. No consent is needed where Section 215 BNSS applies. Section 196(2) CrPC was to the same effect for Section 120B IPC.

Which law applies to a conspiracy formed before 1 July 2024? Section 358(2) BNS saves penalties and proceedings under the IPC as if it had not been repealed, so on a reading of that text a conspiracy formed and acted on before 1 July 2024 is charged under Section 120B IPC. The text does not say expressly how a conspiracy that began before and continued after that date is to be charged; that is a question for the court on the facts.

Related

• Common intention: IPC 34 vs BNS 3(5)
• Unlawful assembly and common object: IPC 149 vs BNS 190
• Cheating: IPC 415-420 vs BNS 318
• Forgery: IPC 463-471 vs BNS 336-340
• Organised crime — a new offence in BNS 111
• Offence before 1 July 2024 — which law applies
• IPC to BNS master table
• Sections 107-109 IPC vs Sections 45-49 BNS — Abetment
• Sections 121–130 IPC vs Sections 147–158 BNS — Offences Against the State

Sources

• Bharatiya Nyaya Sanhita, 2023 (Gazette text): Sections 2(15), 45, 49 (with Illustrations), 55, 56, 61, 111(3), 113(3), 148 and 358; Chapter IV heading.
• Indian Penal Code, 1860 (India Code text): Sections 43, 107, 109, 120A and 120B, with the Chapter VA heading and its footnote.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 217(3)-(4), 359 and 531(2)(a); First Schedule entries for Section 61(2)(a) and (b).
• Code of Criminal Procedure, 1973: Sections 196(2) and 320; First Schedule entries under Chapter VA.
• Judgments read in full text: Topandas v. State of Bombay (1955_2_881_887_EN.md); Major E.G. Barsay v. State of Bombay (1962_2_195_241_EN.md); Yash Pal Mittal v. State of Punjab (1978_1_781_786_EN.md); State (N.C.T. of Delhi) v. Navjot Sandhu (S_2005_2_79_306_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.