Guest Post — Conspiracy in times of the Raj (Part III)

(This is a guest post by Madhav Aggarwal, and the third in a series of posts on conspiracy)

The previous post on this blog covered the birth of the substantive offence of Conspiracy in the aftermath of the Delhi Conspiracy Case. This post will focus on the life of the substantive offence of conspiracy in Pre-Independent India. 

Introduction

The insertion of Section 120B in the Indian Penal Code 1860 through Criminal Law (Amendment) Act 1913 marked the second departure from Macaulay’s stance on criminalising conspiracies only as a form of abetment. The singing reason for the insertion of Conspiracy as a substantive offence was to ensure that “dangerous conspiracies” like the assassination attempt on the Viceroy are nipped in the bud much before they are executed. Purportedly, it was the inadequacy of Indian law and not the failure of the police to detect these crimes that interventions before the execution of the conspiracies could not be made.

Though, a look at the actual operation of the law would debunk this reasoning. I was able to review most of the reported judgments from High Courts and Chief Commissioners Courts for this period and it appears that the insertion of the clause was not working to forestall serious conspiracies from occurring. Perhaps the only big conspiracy case before commission of the dacoity or bomb-throwing was the Meerut Conspiracy Case [S.H. Jhabwala v. Emperor (1933)], where an array of accused persons were charged as having conspired to overthrow the British Government solely due to their involvement (formal as well as informal) with Communist parties of India or Great Britain. But it may be argued that even the Meerut Conspiracy Case cannot be seen as an example of Section 120-B working as intended, because firstly the accused persons had given various inflammatory speeches, and secondly the accused were not charged with S. 120-B at all but with the offence under Section 121-A of the Penal Code, that initial departure from Macaulay’s scheme. 

Submerging Section 107 within Section 120-A?

While we are aware of the stated reasons for the introduction of Section 120A and Section 120B, it remains unexplained why the legislature chose to retain Section 107. Even a plain reading of the bare act is sufficient to grasp how Conspiracy under Sections 120A 120B is unduly wide and completely engulfs abetment by conspiracy under Section 107 in its scope. 

Firstly, Section 120A provides an extended definition of criminal conspiracy covering acts which do not amount to abetment by conspiracy within the meaning of Section 107. It does away with the need for any overt act as long as the conspiracy involves an agreement to commit an offence as is required by Section 107. Then, Section 120B makes them punishable in the same manner as if they had been abetted (albeit only if the offence conspired to be committed was punishable with at least 2 years of imprisonment). Secondly, Section 120A also brings within its scope criminal conspiracies other than criminal conspiracies to commit offences, which would not have amounted to abetment. 

Conspiracy OR Abetment by Conspiracy?

So if a conspiracy under Section 120B is sought to be proved through overt acts besides the agreement, would it not mean that it amounted to conspiracy by abetment also because an overt act did follow? What decides whether a charge under Section 120B should be framed or Section 109? 

In the initial period, there were attempts to curtail the application of Section 120B by contending that use of the words “where no express provision is made in this Code for the punishment of such a conspiracy” in that clause imply that abetment by conspiracy should be resorted to when applicable. The Courts rejected this interpretation on the basis that the words used in Section 120B refer to Section 121A instead of abetment by conspiracy and concluded that it was optional for the prosecution to proceed under either. [Udhasing Tahilsing v. Emperor, 1916 SCC OnLine Sind JC 11; Kishanchand v. Emperor, 1925 SCC OnLine Sind JC 49].

Soon however, the position of law seemed to drift against this understanding. Courts started considering it appropriate to utilize conspiracy by abetment instead of Section 120B when some offence in pursuance of the conspiracy had taken place. [Jugeshwar Singh v. King Emperior (1935), Mallimoggala Venkataramiah (1937), Satyanarayana v. King-Emperor, (1943)]. 

Conspiracy to commit AND the offence committed?

Let’s now address the foundational question of the appropriateness of charge under Section 120B together with the charge of the offence conspired to be committed. The legal position in this respect remained in turmoil just as the political position of the country. 

As discussed before, one line of authorities endorsed the view that if the commission of some offence has taken place, the proper charge would be abetment by conspiracy and the offence committed instead of Section 120B. [Jugeshwar Singh (1935), Mallimoggala Venkataramiah (1937)]

The other line of authorities laid down that the accused can be separately punished for the offence under Section 120B because of it being a substantive offence. [Bala Huddar v. Emperor, 1931 SCC OnLine MP 3; Hazari Beria v. Emperor, 1928 SCC OnLine Oudh CC 172; Emperor v. Karamalli Gulamalli (1938)]

A separate, and might I add legally untenable, view was adopted by the Lahore High Court. It endorsed charging with only the commission of the offence on the basis of “shortness of time” between the hatching of a conspiracy and commission of the crime. [Punjab Singh v. Crown, 1933 SCC OnLine Lah 436; Ismail v. Emperor, 1946 SCC OnLine Lah 52]

S. 196-A: A buckler?

A definitive distinction between abetment by conspiracy and Section 120B was that the rigour of Section 196-A in the Criminal Procedure Code 1898 (CrPC) didn’t apply to abetment by conspiracy. The Criminal (Amendment) Ordinance, 1913 had also introduced Section 196-A in CrPC apart from the changes introduced in the Penal Code. The stated purpose was to “provide a safeguard against the vexatious prosecution for criminal conspiracy” with its application expressly limited to Section 120B. It provided for two classes of cases. First, where the object of the conspiracy is to commit an illegal act other than a statutory offence or a legal act by illegal means, the complaint must be made under the authority of the state. Second, where the object of the conspiracy is to commit any non-cognizable offence, or a cognizable offence not punishable with death, transportation or rigorous imprisonment for a term of two years or upwards, a sanction was required. This meant that it couldn’t ensnare anything more than petty conspiracies. 

As can be evinced, the requirement of sanction under Section 196-A in CrPC depended on the object of the conspiracy and not on the offences that may have been committed in pursuance of it. This made it quite simple to sidestep the requirement. Consider this — Even if forgery (non-cognizable offence requiring sanction) was committed in pursuance of a conspiracy, it could be alleged that the object of the conspiracy was to commit criminal breach of trust (cognizable offence not requiring sanction).

The position of law with respect to validity of a trial initiated without a sanction under Section 196-A in CrPC also remained unsettled. There was a line of cases that regarded it merely as a ‘technical defect’ and endorsed that a trial initiated without sanction that ends in conviction should be upheld. [Abdul Rahman v. Emperor (1935)] And that if no objection was taken at the stage of inquiry or trial, a trial cannot be held to be illegal for want of sanction. [Hanif v. Emperor (1932)]. 

On the other hand, there was another line of cases which held that a sanction to prosecute for criminal conspiracy, given after the filing of the complaint, does not fulfil the requirements of Section 196-A in CrPC and that a conviction for criminal conspiracy should be set aside in the absence of proof that prior sanction to initiate the proceedings had been obtained [P. Varadarajulu Naidu v. Public Prosecutor (1918) following Barindra Kumar Ghose (1909)].

“Prosecutor’s Darling” for a reason

Dire warnings of some like Mr. Vijayraghavachariar soon came true and Section 120B acquired a bad reputation. The Calcutta High Court would use the epithet “much misused provision” for it. [Ram Gobinda Ghose v. Emperor (1938)]. It wasn’t just the wide definition clause that made Section 120B prone to misuse but also the procedural advantages that it allowed the prosecution. Firstly, it eased requirements of the preciseness of charges. Secondly, it allowed numerous accused to be tried on a multiplicity of charges. Thirdly, it provided a relaxation in the rules governing evidence. 

The Precision of the charge

The purpose of framing charges is to inform the accused what the prosecution intends to prove against her. From early on, these requirements for the sufficiency of charge for conspiracy were watered down by the Courts. It was held not necessary to state the object of the conspiracy with the same degree of certainty as is required in the charge for the offence sought to be committed [Amrita Lal Hazra (1915)].

Further, it was held that it is unnecessary to specify the date of commencement of conspiracy. [Balmokand v. Emperor, 1915 SCC OnLine Lah 43], or to specify all the persons involved in a conspiracy. And though a conspiracy may be sought to be proved through overt acts committed in pursuance of it, setting them out in the charge was just “surplusage”. [Kishanchand v. Emperor, 1925 SCC OnLine Sind JC 49] 

Numerous charges, Numerous Accused, Numerous advantages

Allegations of conspiracy make it possible to try numerous accused for disparate offences only connected by the common link of conspiracy. The fundamental rule that each offence must be a separate charge and each charge must have a separate trial is laid down by Section 233 of CrPC. Sections 235 CrPC and 239 CrPC allow exceptions to this rule. Section 235 CrPC permits charging with every such offence which is so connected together to form the same transaction. Further, Section 239(1) CrPC allows persons accused of same or different offences forming the same transaction to be tried together or separately, as the court deems fit. 

This categorization of conspiracy as a “transaction” enabled the Court to try the offence of conspiracy and all the offences committed in pursuance of it together. The breadth of this stance is made apparent by this statement in Gopal Raghunath v. Emperor (1928):

“it was the working, the fruits and the result of the alleged conspiracy and if so, the separate act done by any of the conspirators in pursuance of that conspiracy could be joined in the same trial.”

The legality of this joinder of persons and charges depended on the accusations and not on the eventual result of the trial. Even an eventual failure to establish conspiracy could not vitiate the trial. The prosecution could easily invent theories of a conspiracy for their purpose.

Just at the turn of the century in Subrahmania Iyer v. King Emperor (1901), the Privy Council had disagreed with the similar reasoning advanced in respect of abetment by conspiracy that the conspiracy and all subsequent offences constituted a series of acts forming part of the same transaction. However, this case soon came to be distinguished on the basis that it pre-dated the introduction of the substantive offence of conspiracy by Calcutta High Court in Abdul Salim (1921) engaged in trying 37 charges together. Later, the Calcutta High Court in Giridhari Lal v. Emperor, 1936 SCC OnLine Cal 142, would express unease about distinguishing Subrahmania Iyer solely on this basis. It observed that a judicial committee may soon have to be asked to give an authoritative ruling to lay down the permissible procedure in framing charges with respect to Section 120B. Still, the position of law remained that all persons accused of a single conspiracy could be tried together for disparate acts done in the pursuance of a conspiracy. 

The Section 10 Concession

The old shibboleth goes — “direct proof can scarcely be afforded of a conspiracy”. Since direct proof of an agreement may be difficult to present, a conspiracy is often sought to be established by proof of other circumstances suggesting its existence. These circumstances are burnished by the ability to use evidence of out-of-court statements made by others which, in other cases, would have been inadmissible. 

The provision permitting this is Section 10 Indian Evidence Act 1872 (IEA), which provides that anything said, done or written by any conspirator in reference (not necessarily in furtherance) to their common intention since the intention of conspiracy was first entertained is relevant against each co-conspirator. It could be used for the purpose of proving the existence of a conspiracy as well as for the purpose of showing that any person was a party to it. 

In Amrita Lal Hazra (1915), the defence flagged the concern that the prosecution might indiscriminately charge persons to let their evidence in under Section 10 IEA. The Court dismissed the concern remarking that the defence may insist upon strict adherence to the provision.

Section 10 IEA is even wider than the English counterpart. Recourse to the illustration appended to this section will make its overreaching scope clear.

“The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.”

Unless the act of B in Europe bears some reference to A in Calcutta, how can it assist in proving A’s complicity? Finding it hard to rationalize the illustration, the Lahore High Court in Balmokand took a circumspect view. It remarked that the “technical relevancy” of a fact under Section 10 IEA wouldn’t amount to much if the fact is insufficient by itself for proving the complicity of the co-accused.

All that was required to open the floodgates of evidence under Section 10 IEA was “reasonable grounds” to believe that the conspiracy existed between such persons. What if the evidence received during the trial displaces this reasonable ground of belief in the existence of Conspiracy? The Privy Council in HHB Gill (1948) confirmed that the Court must later reject the evidence then. But can you really unring the bell?

Conclusion

It will be decades before some of these conflicting positions would be resolved. Some of these issues will even crop up before the Law Commission of (Independent) India. But this should at least explain what made the charge of Section 120B so expedient for the colonial law enforcement to use. Soon, Section 120B will enter the service of the Republic of India which will be covered in the next post.

Victims and Bail — The Judgment in Jagjeet Singh v. Ashish Mishra

In a much-publicised judgment, the Supreme Court set aside the order granting bail to the main accused in the Lakhimpur Kheri incident from October 2021 [Jagjeet Singh & Ors. v. Ashish Mishra & Anr., Crl. Appeal 632 of 2022 (decided on 18.04.2022) ("Ashish Mishra")]. At the outset, it would be necessary to clarify that the court has not cancelled bail, but set aside the order granting bail as it was found contrary to law (see, here, for the difference). As a result, the case has been sent back to the Allahabad High Court for reconsideration (with a relatively generous timeline to deliver a verdict within three months), and the accused has been directed to surrender within a week.

A primary reason for the Supreme Court to set aside the order was the High Court's failure to honour the victims' rights to participate in the hearing. The victims had been present for the online hearing before the High Court but could not participate due to technical woes. They had preferred an application seeking re-hearing, citing this reason, which was rejected by the High Court. Thus, it was argued before the Supreme Court that (i) victims had a legal right to be heard at the bail stage, and (ii) the impugned order was passed in contravention of this right. This contention was addressed cumulatively in favour of the appellants in "Section A" of the judgment in Ashish Mishra, and it is the primary focus of this post.

The Holding

The Court has held that a victim (as defined under the Criminal Procedure Code, 1973) "has a legally vested right to be heard at every step post the occurrence of the offence. Such a 'victim' has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision." (Para 24) 

The logic behind the holding is expressed in the next paragraph (Para 25), where the Court notes that, first, "Indian jurisprudence is constantly evolving, whereby, the right of victims to be heard, especially in cases involving heinous crimes, is increasingly being acknowledged". And, second, it was necessary to extend this to the stage of bail as it would result cause miscarriage of justice. 

Is it a good idea for Bail?

As mentioned above, the Court notes that denying victims a right to participate in the bail stage will result in a grave miscarriage of justice. Given that bail hearings in India are peculiar and do not compare well with, say, the USA or Canada or South Australia for that matter, it is necessary to think a little more about this claim. 

Traditionally, one of the key considerations for bail is the threat to a victim's safety. The foreign jurisdictions which the Ashish Mishra judgment relies upon welcomed victim participation at even the bail stage to allay all concerns about this specific issue regarding a threat to their safety. In some contexts, victims do not have a right to get a full hearing but to file affidavits to ensure that no relevant information is left out for the court.

The problem is that in India, bail hearings tend to focus a lot more on the merits of the case than anything else. Allowing for a third party to step in and address the court might end up repeating a lot of submissions and extend the already lengthy timelines that bail hearings suffer from. So while in the abstract victim participation is a good idea, a lot depends on how courts regulate the process to ensure that no side can hold the process hostage. 

How will this work in Practice?

The problem with the pronouncements of the highest court has often been that the view from the top often renders ground-level problems too mundane to notice and come in the way of grand statements. It's very nice to say that all victims have a right to participate, but what does it mean in reality? Will an accused person have to always implead victims in bail applications now? Will courts have to wait for bail even in bailable cases before getting the perspective of a victim? Will the victim be entitled to a copy of the chargesheet even when the police is not closing the case? These are only some of the very real problems of execution that follow from the Court's grand pronouncement in Ashish Mishra.

It is precisely because of this reason that extending participatory rights meaningfully within the criminal process ought to be a process which has active legislative cooperation. That the Court itself notes instances from India and also foreign jurisdictions where victims' rights have been recognised through statutes. If the Court felt it was necessary to recognise this principle, nothing stopped it from recommending the matter to the legislature for consideration. Or, on the other hand, if the Court was serious, then nothing also stopped it from taking the issue to its logical conclusion and charting out the specifics (as it has done in the sphere of witness protection). 

The Court did neither, which basically leaves this grand pronouncement subject to interpretation by the lower courts. Critical in this process might be one specific sentence in Paragraph 25 where the court notes that "where victims themselves have come forward to participate in a criminal proceeding, they must be accorded with an opportunity of a fair and effective hearing" (Emphasis supplied). Practicing lawyers know that many courts already allow victims to be heard at the bail stage when they enter an appearance. Thus, the Court may well be seen as having gone little beyond affirming the status quo. 

Yet more rights without remedies?

Return to the manner in which the Court characterised the issue on victim participation at the bail stage — victims have a right to be heard at bail, and this right was violated by the High Court. There is an obvious follow-up question which is stark in its absence from the judgment — so what if this right was violated? 

The judgment in Ashish Mishra is, then, the latest chapter in the Supreme Court's remarkable tendency to create rights without remedies within the criminal procedure context (see, here, for a longer discussion on the theme). What makes a right meaningful is the remedy that ensues, but besides being "constrained to express our disappointment" with how the High Court dealt with the victim's right to participate, there is literally no discussion on what legal consequences shall result in such circumstances henceforth and thus no guidance to either litigants or courts on how shall such problems be dealt with in the future.

If anything, the observation in Paragraph 25 extracted above suggests that this so-called right is little more than a token for those having the wherewithal to participate in the process. By placing the onus on victims to seek participation and thereby get an audience, the Court offers a path which is, in fact, diametrically opposite to the statutory schemes referred to within the judgment, where the entire idea is to invite the victim to participate by giving adequate notice (such as the amendment to Section 439 of the Code giving victims of sexual offences adequate notice).  

The lesson perhaps is that if you are a victim who has the ability to participate in the process, the judgment in Ashish Mishra has rubber-stamped your ability to do so by calling it a right. If you are not so lucky, then perhaps it is best to not get your hopes up.

Errantry — Further thoughts on the new Criminal Procedure (Identification) Act

As expected (mostly), parliament passed the Criminal Procedure (Identification) Bill 2022 in double quick time without referring the bill to a committee. It is disheartening, given the obvious flaws that are present in the Bill, but in an environment where courts are unable to hear matters pertaining to important matters of constitutional law (Electoral bonds, anyone?), the threat of a potentially adverse court ruling is pretty low for any legislature to be incentivised to bring the statute in line with the law.

This development is likely to result in states taking steps to pass statutes and rules at their level, as was the case with the regime under the Identification of Prisoners Act 1920—either by way of separate statutes or by specific amendments to the central law. It will probably pan out over the next few months, and it is only then that a clearer picture will emerge. States will probably simply copy out the new central law and re-promulgate their old rules (or not do that and simply continue with the old ones). 

At the same time, there is still that slim chance that some states decide to take the road less travelled and pass laws and rules which offer more robust protection than what the central law has ordained (Yes, it is the hope that kills us). 

Keeping this in mind, I just wanted to plug links here to different state laws and rules for people to see and consider while thinking about the new regime. Some of these are:

• Rajasthan passed a separate Act in 1956
• Andhra Pradesh (and post bifurcation, Telangana)
• Kerala passed a separate Act in 1963
• Madhya Pradesh passed Rules in 1967
• Maharashtra and Gujarat had made amendments to the central act which were favourably discussed in the 1980 Law Commission Report. 
• Tamil Nadu amended the Identification of Prisoners Act in 2010. The scope was to expand the definition of measurements—a criticism of the old law which was also used to pass the new Act.
• Special attention must be paid to the 2021 amendment by Karnataka to the Identification of Prisoners Act as it was applicable to that state. It is surprisingly similar in its terms — with some obvious differences — and it would be helpful to see how this new regime fared in the months prior to the 2022 Bill being rushed through parliament.

These are only for some states which I could find without too much effort, and I would urge others to contribute to help make this a more comprehensive list. This is in the sincere thought that considering what was in store before the 2022 Act might help to determine how best to face the challenges that this new piece of legislation has brought forward.