Criminal Law

Section 61(2) of BNS

Section 61(2) of BNS, 2023 speaks about the criminal conspiracy and punishments for the offence of criminal conspiracy.

What is Criminal Conspiracy ?

As per Section 61(2) of BNS, 2023, 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.

Ingredients of Criminal Conspiracy under Section 61(2) of BNS

The ingredients of this offence are -

(1) that presence of an agreement between the persons who are going commit offence.

(2) that the agreement should be

(i)  for doing of an illegal act, or

(ii) for doing by illegal means an act which may not itself be illegal.

Meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal Conspiracy.

Agreement between two or more person are necessary

The most important ingredient of the offence being, the agreement between two or more persons to do an illegal act.

In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object.

The former does not render them as conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established.

The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient.

A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity.

During its subsistence whenever any one of the conspirators does an act or series of acts, he would be held guilty under section 61(2) of BNS, 2023.

Section 61(2) BNS versus 120-B of IPC

Prior to enactment of Bharatiya Nyaya Sanhita, 2023, the offence of criminal conspiracy was punishable under 120-B of Indian Penal Code (IPC).

Presently there is no specific changes in the category of offence. Both have similar provisions for the offence of criminal conspiracy.

Bail Provision for Section 61(2) of BNS, 2023

New Criminal Procedure Code provides the following anticipatory bail and regular bail provisions:-

Section 61(2)(a) of BNS, 2023

(a)  Offence: Criminal Conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of 2 years or upwards.

(b)  Punishment: Same as for abetment of the offence which is the object of the conspiracy.

(c)   Cognizable or Non-Cognizable

(d)  Bailable or Non-Bailable

Section 61(2)(b) of BNS, 2023

(a)  Offence: Any other criminal conspiracy

(b)  Punishment: Imprisonment for 6 months, or fine, or both.

(c)  Non-Cognizable

(d)  Bailable

Frequently Asked Questions on Criminal Conspiracy 

Question: Can police make one person accused for conspiracy ?

Answer: To constitute the offence of conspiracy an agreement of two or more persons are necessary to do an act which is illegal means for one cannot conspire with oneself.

Case Reference: Topandas v State of Bombay, AIR 1956 SC 33

Question: Two people discussed about an offence. Are they liable for conviction ?

Answer: Meeting of minds is essential. Mere knowledge or discussion is not sufficient for convicting someone for Criminal Conspiracy

Case Reference: Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1

Question:  Two persons agreed to commit any offence but not committed, Are they liable for punishment under Section 61(2) of BNS ?

Answer:  Individual may or may not commit illegal act in pursuance of agreement, but the very agreement is an offence and is punishable.

Case Reference: Kehar Singh v State (Delhi Administration), AIR 1988 SC 1883

Question & Answer on Section 61(2) BNS

Question: Should each member know other co-accused and all details of the conspiracy?

Answer: It is not necessary that each member of a conspiracy must know each other or all the details of the conspiracy.

Case Reference: RK Dalmia, AIR 1962 SC 1821

Question: Anyone has not participated in commission of offence, is he liable for criminal conspiracy?

Answer: It is also not necessary that every conspirator must have taken part in each and every act done in pursuance of a conspiracy.

Case Reference: State of HP vs Krishanlal Pradhan, AIR 1987 SC 773

Question: Is there any supreme court law relating to Criminal Conspiracy ?

Answer:  The Supreme Court has summarized the law relating to Criminal Conspiracy in the case of State of TN through Superintendent of Police, CBI/SIT v Nalini, AIR 1999 SC 2640.