Conspiracy and Abetment - Legislative Oversight or Crucial Distinctions?

The Law Commission of India has twice recommended (in its 42nd and 156th Reports) that Section 107 of the IPC be amended to remove the part of abetment by conspiracy. This recommendation argues that in light of Sections 120-A and 120-B having been inserted into the IPC, there is no need for the abetment by conspiracy clause. But these recommendations have not been implemented. How should we be treating these recommendations? Maxwell on Interpretation of Statutes suggests that recommendations not being accepted indicates the Legislature disagrees with the view promoted by the recommendation. So in this case, that would lead us to argue that the Legislature considers the conspiracy clause in Section 107 useful and not redundant. The inertia that plagues India's legislature offers an easy counterpoint; of this being just another instance of legislative oversight with the recommendations having been buried beneath all the protests happening in Parliament at that time. Does retention of abetment by conspiracy under Section 107 IPC together with the independent conspiracy offence under Sections 120-A and 120-B IPC reflect legislative intent or is it mere inertia? This post grapples with this question. Given no parliamentary debates are available online on this aspect, all I can offer is my take.

Demarcating Spheres of Influence
For abetment by conspiracy, there must be a conspiracy, and an act/illegal omission must be committed in pursuance of it. For the offence defined under Section 120-A, there is no need for any act/illegal omission to be committed so long as the conspiracy involves an agreement to commit an offence. Barring this distinction, it is clear that Section 107 and Section 120-A are covering more or less the same field. Interestingly, Section 120-B punishes conspiracy by relying upon the abetment provisions [Section 120-B(1) IPC: "whoever is party to a criminal conspiracy ... 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."].

Why did the need arise to insert the broader offence? Some answers lie in the position of the IPC before the Criminal Law (Amendment) Act, 1913 inserted Sections 120-A and 120-B. Prior to this, conspiracy was criminalised generally under Section 107 IPC, and also through specific provisions, such as Section 121-A IPC. It was only these specific conspiracy offences that did away with the act/illegal omission requirement. The early 20th century was a time heady with revolutionary movements, especially in Calcutta following the Partition of Bengal. Reading reported decisions on conspiracy from High Courts around this time, one finds the accused persons were nearly always alleged revolutionaries. Section 120-A allowed the police to cast a wider net than before and would have been very desirable from a colonial law-enforcement perspective.

With this context, the demarcation of what Section 107 and Section 120-A cover should be clear. Both criminalise agreements (read conspiracies) to do a thing where some act/illegal omission is committed in pursuance thereof. But Section 120-A also creates an exception for this act/illegal omission requirement, where the conspiracy involves an agreement to commit an offence.

Judicial Appreciation of the Problem
The existence of two separate frameworks criminalising conspiracies was not lost on the courts. Different High Courts came to the conclusion that having Section 107 IPC together with Sections 120-A and 120-B IPC curtailed the application of the latter. Section 120-A was found to be applicable only where the allegations involved a conspiracy without any commission of substantive offences. As soon as any act/illegal omission occurred towards commission of the offence, the case became one of abetment and excluded Section 120-A IPC. This view was held by the Madras High Court in Re Mallimoggala Venkatramiah & Ors. [AIR 1938 Mad 130], by the Patna High Court in Jugeshwar Singh v. Emperor [AIR 1936 Pat 346], and also in S. Satyanarayana v. Emperor [AIR 1944 Pat 67].

This, in my opinion, was a smart move that prevented Section 107 from being rendered completely otiose. What's more, it also led to understanding the 'offence' of conspiracy under Section 120-A in tune with its purportedly inchoate nature. Even in the Law Commission Reports lamenting Section 107 IPC, we find conspiracy is characterised as an inchoate offence. By restricting charges under Section 120-B to cases where there was nothing but a conspiracy, the High Courts merely reinforced this logic. After all, if a person committed an offence pursuant to a conspiracy, it made little sense to charge him for the original inchoate crime too. It made more sense to hold persons liable as abettors, rather than conspirators.

Conclusion - An Opportunity Lost?
India's unintentionally unique statutory framework allows for a lot of clarity in employing conspiracy. There is significant literature in the USA criticising the broad nature of the conspiracy offence, and how it remains separately chargeable despite the main offence having been committed in execution of the conspiracy. Here, the combination of Section 107 IPC and Section 120-A IPC allowed Indian courts to restrict conspiracy to a purely inchoate offence. The prosecutors didn't lose much either, as they could use the abetment route to rope in the various persons jointly liable.

That there is perhaps no decision today that questions the usage of Section 120-B where offences committed pursuant to a conspiracy are complete shows how the logic that I advertise has been significantly brushed aside. Rather than having a line of cases where the boundaries of Section 120-B were clearly drawn out, we find that today the opinion of the Law Commission seems to have become received wisdom. An opportunity lost, then, for the IPC provided a unique solution to some common problems faced by various jurisdictions while prosecuting conspiracies.

On Abetment and the IPC

The fascination of this Blog with inchoate liability continues, and this post dips into the concept of abetment. One might say this fascination is being reflected across the board, with a high-profile investigation recently grabbing headlines for making use of abetment. This, admittedly though, is a diversion from the current project of considering criminal conspiracy on this blog. But the diversion is purposeful, as I hope will become clear during the course of this post.

Statutory Framework
I refrain from providing regular dictionary definitions of abetment, since Section 107 IPC does the defining for our purposes. According to this provision one can 'abet' a thing in one of three ways: (i) by instigating any person to do that thing, (ii) by engaging with another in a conspiracy for the doing of that thing with some act/illegal omission occurring pursuant to this conspiracy towards doing that thing, or (iii) intentionally aiding by act/illegal omission, the doing of that thing. Section 108 IPC tells us that an abettor is liable regardless of whether the principal acts on the abetment. Liability is thus one step removed from the ultimate commission of an offence, making clear the 'inchoate' nature of abetment. So, to use the statutory example: if A instigates B to murder C, and B doesn't do so, A is still liable for abetment. The commission of offences makes a difference for punishment - this is explained by Sections 109-117 of the IPC. Most prosaically, Sections 109, 115 and 116 IPC provide that different punishments are inflicted where a principal commits the offence being abetted and where no offence is committed. This provides a neat method to proceed with this post; we will first jump to rules creating liability and then turn to rules defining the extent of that liability.

Defining Abetment and Abettors
Section 108 IPC tells us that an abettor faces inchoate liability. We've discussed inchoate liability in context of conspiracy, so lets compare. Section 120-A defines conspiracy as agreeing to commit 'illegal acts', and the explanation renders conspiracies to commit offences punishable without any subsequent act resulting. Abetment by conspiracy as per Section 107 IPC always requires the occurrence of an act/illegal omission pursuant to the conspiracy. But, notice a more basic difference. A conspiracy to commit an offence means both parties have agreed at the outset that they will be committing offences. This planned cooperation is only one means of abetment, and the other forms do not require abetment of offences, but abetment of acts. So an abettor need not know the 'thing' being abetted is an offence. Section 108 supports this, and defines an Abettor as one who abets an offence, or acts that would be offences.

So, an abettor's mental element need not be that well-defined. But, given how liability can arise even if there is no act consequent to any abetment, it makes sense to demand nothing short of intention on part of an abettor to hold her liable. Further, to ensure the net of criminal law is not cast too wide, it becomes necessary to demand some acts/illegal omissions towards the doing of something for establishing abetment. Section 107 supports this conventional theory. Instigation cannot exist without intention, and always involves some express physical act. Using several synonyms, the Supreme Court has explained that 'instigation' means to "goad, urge forward, provoke, incite, or encourage" the doing of something [Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 (3 Judges), at paragraph 20]. The conspiracy clause in Section 107 specifically requires that an act/illegal omission accompany a conspiracy, and this act/illegal omission must be towards the commission of the thing abetted. A pure conspiracy is not enough, contrary to the crime of Section 120-A IPC [Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, 1962 Supp. (2) SCR 297 (3 Judges), pages 318-320]. Finally, there is aiding by act/illegal omission clause which is prefaced by a requirement of intention, meaning that one must intentionally aid, not merely aid, for acts/illegal omissions to be considered abetment [Shri Ram v. State of Uttar Pradesh, (1975) 3 SCC 495].

Another interesting facet of Section 107 is its recognition that abetment can occur at any stage of the doing of some thing. I argue that there is a neat three-step division reflected in the three categories of Section 107. Instigation usually is the outset and represents a situation where A provokes/goads B to do something. Conspiracy indicates a plan between A and B to do something rather than one person provoking another towards it. Aiding indicates a situation where B is already doing something and A comes in later. Section 109 IPC seems to support me here with its explanation: "an act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment." In this account of abetment the abettor's liability itself is linked to the principal. I argue that this is important, and keeps the scope of abetment reigned in. Pedantically, then, I argue that A cannot instigate someone who is already doing that thing, when Section 107 requires the instigation must be to do that thing. Basically, if A walks in on B repeatedly stabbing C, if A now encourages B to keep on stabbing it cannot be read as being an instigation to do something [stabbing here], since it is already happening. Abetment by conspiracy is also limited to situations where the thing is yet to be done - the conspiracy must be "for the doing of that thing". Once the 'thing' is already in motion, all that is left is intentionally aiding its 'doing', either by acts or illegal omissions.

My argument on the three-step division lacks support in case law, due to my poor research (another way to say that comments are welcome!). On to more surer footing then, where we consider how the IPC accounts for the possibility of dissonance between the acts of abettor and principal.

Liability and Accounting for Variance
If we see abetment as requiring complete harmony between the acts/intentions of the abettor and principal, then we come dangerously close to conflating abetment with conspiracy. Abetment doesn't always involve an element of planning, and the law must account for imperfect associations between abettor and principal that are being created. How does it account for this possible variance? At the first step of different intentions, the law privileges the acts/intentions of the abettor. Section 110 IPC provides that where the principal carries out an act with an intention different from the abettor, the law will operate on a fiction that the principal acted with the intention held by the abettor in order to punish the abettor.

At the second step of different physical consequences resulting from abetment, the law inserts a requirement of knowledge as to probable consequences to go along with the initial requirement of intention. Recall that an offence consists of conduct, consequence and circumstance requirements acting together. For instance, certain kinds of conduct - say, sexual intercourse - becomes an offence (rape) when it is committed in certain circumstances - in the absence of consent. Similarly, certain conduct is only an offence where it results in certain consequences - murder comes in, when acts result in causing death. What mental states are associated with conduct, consequences and circumstances? The law moves on a presumption that only voluntary conduct can be considered to hold someone liable (thus creating various exceptions for insanity and intoxication). Consequences are ordinarily intended: A intends to cause death by shooting C with a gun. Circumstances are known: A proceeds to have sexual intercourse with C despite knowing there is no consent or is reckless as to existence of consent. In abetment, there is a gap between the conduct and consequence elements. The acts of firing a gun or reckless/forcible sexual intercourse are not committed by A but by another person, B. The possibility of B realising the desired consequence becomes yet another circumstance, that can only be probably known.

Thus, under Section 111 IPC an abettor is liable for even those acts that are different from the ones abetted, so long as that different act was a probable consequence of the abetment and had a relation to it. Similarly, under Section 113 IPC, where acts are abetted with the intention of causing a particular effect but result in causing a different effect, the abettor can be liable even for the different effect if she knew that the act abetted was likely to cause that effect. Interestingly, all the illustrations to Sections 111 and 113 IPC are restricted to abetment by instigation, although the proviso to Section 111 specifically lists all three forms of abetment. Going back to the argument in the previous section, can it be said that a dissonance is possible where I am aiding the doing of something by acts/illegal omissions, as the thing is already in the process of being done?

An example to round things up. If A encourages her friend B (a 15 year old)  to take her car out for a spin, A abets B 'to do a thing', i.e. drive a vehicle. This is an offence, and so A can be held liable as an abettor. If A tells B that she will arrange for a fake license to help her drive whenever needed, A now abets by intentional aiding 'the doing of that thing', i.e. continuing driving while she is not authorised. A knows that B has a habit of driving fast - B got challaned on previous occasions - but lets her continue. Tomorrow, then, if B gets into an accident while driving rashly which leads to the death of a pedestrian C, can A be held liable as an abettor? The answer would turn on whether A knew that the act abetted (B driving, in a manner known to be rash), was likely to cause that effect (causing an accident while driving). Certainly, this is not implausible by any means.

Conclusions
This post hopefully cleared some ground on abetment, and created new doubts as well. What is more important for the larger scheme of things on this blog currently is the relationship between abetment and conspiracy, which we touched on. The next post will get back to discussing this relationship more thoroughly.