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.

The Delhi High Court Order in P. Chidambaram v. ED: Three Thoughts

This week saw the arrest of a former Union Minister, P. Chidambaram, in connection with allegations of corruption and money laundering in what has popularly been called the "INX Media" case. In this post, I'm not interested in the arrest itself — the pageantry of which has already attracted much discussion — but the initial order of the Delhi High Court on 20.08.2019 which dismissed Mr. Chidambaram's plea for Anticipatory Bail and set the ball rolling [more on anticipatory bail generally, here].

Please read the order when you can, and if you can't read it in full, then make sure to read Paragraph 21 onwards. This section of the order discusses three different sets of arguments / judicial choices that I want to bring into sharper focus through this post.

Custody and Cooperation

The High Court relied upon an old decision of the Supreme Court in CBI v. Anil Sharma [(1997) 7 SCC 187] to re-iterate that custodial interrogation should be granted when an accused, who has prior judicial protection from arrest, refuses to "cooperate" with the investigation and renders it a "mere ritual". This is good as an abstract principle: people should not be allowed to frustrate legal processes. But what about the specifics? 

The verb "cooperate" means to work jointly towards the same end. Taking this to its logical end in the setting of criminal investigations would entail a total negation of the right to silence, which is certainly not what any court could agree to. So, then, it is a question of how much cooperation is enough? In this case, the prosecution argued that the accused appeared for questioning but then gave "evasive" replies, and the Court agreed that this was frustrating the investigation. But it did so without shedding any light on what "evasive" meant, and thus left us in the dark about our spectrum. 

We need to figure out where should an accused person fall in the spectrum of total submission to police, and evading investigation, to satisfy the judicial conscience. Supplying this clarity will not only help future courts make better decisions while dealing with complex problems and give greater certainty to the law. Narrowly tailoring the need for arrest and custody also foster an interpretation of criminal procedure in line with the constitutional commitment to personal liberty.  

Gravity of Offences and Bail 

One of the reasons for rejecting Mr. Chidambaram's bail application was the gravity of offences that are alleged to have been committed by him. Factoring in the gravity of the alleged offence to decide whether or not the accused should be granted bail is today part of the judicial fabric on the law of bail in India, and I do not argue that courts should not consider the gravity of allegations. Rather, the problem is that while this argument might operate well in the realm of abstraction, it does not enjoy smooth sailing when we descend into the particulars [discussed from another angle, here]. 

Let's take an example. If it's a case of alleged murder, then well, it is very difficult to disagree about the basic allegation of someone having died. Some elements of the allegation are, therefore, beyond doubt even at the investigative stage. This logic also works in cases where, say, a public servant is caught taking a bribe red-handed. But this does not work when we infer criminality from neutral facts. To rely upon gravity in those situations is to basically invite the police to create good stories and level serious charges, with a view to ensure that bail is harder to get. 

To make judicial decision-making better, and limit the denial of personal liberty, perhaps courts could interrogate this distinction a bit more and put prosecutors and police officers to stricter scrutiny where the allegations are inferential before relying upon gravity as a ground to deny bail. Maybe this could help prevent cases from ending up in smoke as well, rather than arresting persons and asking them to make statements that will ultimately be inadmissible in court. Just a thought.

Prosecutorial Courts: Economic Offences and the White-Knight Syndrome

The High Court in Paragraph 21 indicates that one reason for dismissing the bail application was that it could not "permit the prosecution in this sensitive case to end up in smoke like it has happened in some other high profile cases." Once the political cheerleading subsides, we should take a long hard look at this claim. Leaving aside everything, it is extremely worrying, and possibly illegal, for a court to subject an individual to arrest and custodial remand because of past prosecutorial failures. Surely we can have better solutions than locking people up to fix lapses in how state agencies investigate and prosecute crimes. 

What is on display here is a trend of the court turning prosecutor, and it is something that has often been on display in the context of economic crimes in the past. The High Court is only following the trends that the Supreme Court has been setting since the 2-G Scam days, when it closely monitored a CBI investigation and found a deprivation of the habeas writ under Article 226 to be constitutional. This "White Knight" syndrome has been discussed on the blog at length, and Paragraph 21 of the High Court with its surface-level anguish about the problem of economic offenders is just the latest variant of that syndrome on display. It will be very interesting to see what the Supreme Court does when it hears the cases in the coming week.

Guest Post: The History of Conspiracy: How Thinking about a Crime, Became a Crime

(I am delighted to host a guest post from Nishant Gokhale. Nishant studied law at NUJS and Harvard Law School, practised law in Delhi in between, has been doing field-work across India, and is now enrolled to pursue his Ph.D. at the University of Cambridge. Views expressed are personal)

Thinking of committing a crime is vastly different from committing it. Expectedly, the law treats these two situations of ‘offending by thinking’ and ‘offending by doing’ differently. Any failure to do so, brings us perilously close to Orwellian “thought crimes”. 

But, criminal conspiracy is a crime under section 120-A of the Indian Penal Code, 1860 (“IPC”). It was however, not a crime till well over half a century after 1860. Conspiracy was punishable as a form of abetment and required doing a criminal act pursuant to conspiracy. In 1870, a very narrow exception was introduced into the IPC making it a crime to conspire about “waging war against the government” by introducing section 121-A. This limited exception to criminal law principles requiring a criminal act to follow criminal thought survives even today. Criminal conspiracy as a distinct offence however, did not exist till 1913. The trigger for this change was an incident a few days shy of Christmas, 1912. 

The year 1912 was a turbulent time for the British in India. Just a year before, a decision was taken to shift the capital of British India’s government from Calcutta to Delhi. This decision was resented by Calcutta merchants who saw the shift as adversely affecting their fortunes. Some British officials, including Lord Curzon who oversaw the painful partition of Bengal, feared this would make the British Indian seat of government even more remote from Rangoon and Madras. What prompted the decision to shift capitals, apart from the Calcutta weather and demands for self-rule, was a spate of murderous assaults on prominent British officials in the preceding years. The move to Delhi however, would not provide any measure of respite as the then Viceroy Lord Hardinge, would soon discover--- nearly at the cost of his life. 

On 23rd December, 1912 Lord Hardinge and his wife rode into Chandini Chowk on elephant as part of a state procession to the new capital. Huge crowds had gathered to witness the pomp and splendour of the British Empire in India. What the crowd would witness however, would soon be known infamously as the “Delhi Conspiracy Case”. A bomb was hurled from a nearby building housing a branch of the Punjab National Bank. It exploded right behind Lord Hardinge instantaneously killing an Indian attendant, and leaving the Viceroy bloodied and unconscious. Lady Hardinge was unconscious, though unhurt. This audacious attack on the head of the British Empire in India, would not go unpunished. 

There was an uproar in the British Parliament and MPs demanded to know “what steps are being taken to hunt down anarchists in India, in view of the fact that the Viceroy has publicly stated that the recent outrages are the outcome of organised conspiracy?” 

The British Government’s response came in the form of the Criminal Law (Amendment) Act, 1913. The statement of objects of the act noted that “Experience has shown that dangerous conspiracies are entered into in India, which have for their object aims other than the commission of the offences under section 121-A and that the existing law is inadequate to deal with modern conditions. …The Bill makes criminal conspiracy a substantive offence...”. 

Under this new law which introduced section 120-A punishable by section 120-B into the IPC, it was a crime when two or more persons agreed to (i) commit an illegal act or (ii) commit a legal act by illegal means. Of these, only (ii) required any overt act to be done. A bare agreement to commit an illegal act without any further steps being taken became punishable. 

Criminal law theorists wrote about the 1913 Amendment with an acid pen. Generally, crimes are believed to have four stages. The first involves forming criminal intent. The second involves preparation to commit a crime. The third involves actually attempting and the fourth, actual completion of the crime. Crimes are generally punishable when they reach the stage of attempt. Only two are punishable at the stage of preparation due to the danger that stage itself poses. These are preparation to commit dacoity, and preparation to commit depredations against Asiatic allies. The only crime which was punishable at the stage of intention itself, until 1913, was conspiring to waging war against the Government. 

Syed Shamsul Huda, in his celebrated Tagore Law Lectures found the changes “rather drastic” and felt they sacrificed the 1860 penal code’s consistency wherein conspiracy was only made punishable as abetment only if followed by an overt act. Huda remarked that “…law can only deal with matters and not merely with mind save as manifested by action.” He concluded that “There probably would have been no danger and no inconvenience if the law in India were left exactly where it was before the Conspiracy Act (1913 Amendment) was passed.” This criticism is especially courageous, for at the time, it may have itself amounted to an offence of causing “disloyalty” against the British government, if broadly interpreted, in the IPC or other laws meant to muzzle criticism of the government. In 2005, the Indian Law Institute’s Essays on the IPC noted that the 1913 Amendment was “hurriedly enacted and inconsistent and unintelligible principles of law were put into action. It may be suggested that the sweeping provision of S.120-A, IPC needs re-examination and irrationality which has imperceptible crept into the Indian law may require elimination.” 

While conspiracy was widely used to supress the nationalist movement by the British, conspiracy has survived into Indian independence and the adoption of the constitution relatively unscathed. The Supreme Court, in many cases, including the Rajiv Gandhi assassination case, embraced it. It recognized that conspiracies are often secretly hatched and no direct proof may be available. Conspiracies could themselves shift shape mid-way as both objectives and members could change. It also noted that like umbrella-spokes different conspirators need to know others and only have one central point of contact. The court however cautions that conspiracy “is exception to the general law where intent alone does not constitute crime”. It also notes that the accused, tried as co-conspirators, may be prejudiced since all and sundry could find themselves in the dragnet without regard to their relationship with the main offender. 

The seemingly boundless scope of criminal conspiracy is something that is liable to be misused since all that is required to be proved is a bare agreement to commit illegal acts. Since direct evidence in many complex crime is rarely obtained, weaker forms of evidence such as approver testimony and circumstantial evidence routinely take its place to prove this agreement. This de facto lowering of evidentiary standards, has resulted in conspiracy charges proliferating and becoming, as described by American Judge Learned Hand, “the darling of the modern prosecutor’s nursery”. While no statistics on conspiracy in India are published by the National Crime Records Bureau (“NCRB”), experience suggests that it remains a popular charge. 

While the media may revel in disclosing lurid details of “plots” ranging from the genuinely frightening to the absolutely fantastic, it is important to remember that the law related to criminal conspiracy needs urgent re-examination. Despite its current popularity to crush political dissent, its history reveals itself to be little more than a reactionary and colonial-era measure to supress the nationalist movement. When freedoms of speech and expression, assembly and association are constitutionally guaranteed, the offence seems overly broad. 

The line between culpability for thought and culpability for action is an easy one to unwittingly cross. We must, however, repeatedly remind ourselves of this line for this may be the demarcation between a tolerant democracy and a totalitarian state. 

Links to Sources Reporting Some Perspectives of the Delhi Conspiracy Case: 

https://timesmachine.nytimes.com/timesmachine/1916/05/20/104675740.pdf

https://blogs.wsj.com/indiarealtime/2011/11/11/why-delhi-the-move-from-calcutta/

https://www.thehindu.com/mp/2004/08/02/stories/2004080200420200.htm

The IPC and Conspiracy II: A Problem of Excess

Criminal conspiracy was something I briefly introduced on this Blog recently. There were several threads to develop, and in this rather philosophically-titled post I want to bring out an old skeleton/argument from the conspiracy closet: the offence of conspiracy must be restricted to situations where the conspiracy remains unfulfilled. When the conspiracy results in realisation of the intended/known consequences i.e. an offence, there remains no reason to separately punish the conspiracy to commit that crime. 

The Prosecutor's Darling

Conspiracy is an inchoate offence, which means that it covers incomplete acts and makes them criminal due to particular harms they present. The particular harm has been elaborated upon by courts, which have noted that there is something very dangerous about people sitting together and thinking of plans to go against the state and its laws, meriting this behaviour be deterred through penalisation [Pinkerton v United States, 328 U.S. 640 (1946)]. Now, if we agree that a conspiracy offence intends to cover the inchoate liability of people agreeing to commit offences, why do prosecutors insist upon levying conspiracy charges in cases where persons do manage to commit offences pursuant to the conspiracy? 

I argue that there are two main reasons for this, at least. The first, is the procedural benefit conferred by a conspiracy charge: a golden-lasso like quality that allows the prosecutor to rope in disparate offences and offenders in a single trial where normally they would have to be tried separately. Section 218(1) of the Criminal Procedure Code 1973 creates the rule that there must be separate charges for every distinct offence, and each charge shall be tried separately. Section 220(1) creates the exception, providing that more offences than one may be tried together if they form part of the same transaction. A conspiracy is perhaps the easiest way to create one transaction out of a variety of offences committed across space and time. While there is not much writing on this in India, there has been some commentary in England over time on this rolled-up charge of conspiracy [See references in David Ormerod 'Making Sense of Mens Rea in Statutory Conspiracies' 59(1) Current Legal Problems 185 (2006)].

The second benefit is the evidentiary relaxation provided in cases of conspiracy. In a case where Z is being tried for having committed a robbery, a statement by X that she heard Y tell her that Z was going to commit a robbery, has no value. Whatever X says is hearsay, a short term for basically saying that there is a sensory gap between X and the actual event that X is talking about - Z committing a robbery. Now flip the coin and take a case where X, Y and Z are stated to be conspirators, who committed a robbery. Suddenly, the same statement has great value. It is specifically made relevant under Section 10 of the Indian Evidence Act 1872. Having a conspiracy charge potentially allows the prosecutor to rely upon previously inadmissible evidence, naturally making it appealing. 

The Problem of Excess

The prosecutor's darling is getting overworked, sadly. Conspiracy charges are being employed ever more routinely without there being a great deal of thought, leading to unsustainable cases and easy defences. This led to courts recognising that there can be multiple conspiracies as opposed to one broad conspiracy, which would then require separate trials nonetheless. The net, thus, cannot be strung too far and wide either it would seem. Today though, there are new problems emerging particularly in the context of statutory offences, which do not require any mental element for commission of offences. Traditionally, one may recall, a crime must have an act/omission, and an accompanying mental element that makes this act/omission criminal. If I took your pen knowing its yours, its very different from me taking it absentmindedly thinking that it is mine. But as know, several offences today do not require any mental element to make conduct criminal. The circumstances and consequences hold the key. Today, for instance, Section 13(1)(d)(iii) of the Prevention of Corruption Act, 1988, simply proscribes the obtaining for any person any valuable thing or pecuniary advantage without any public interest. The Delhi High Court interpreted this clause as not requiring a mens rea requirement. There is no need for you to intentionally or knowingly have obtained that valuable thing or advantage without public interest. Your conduct is criminal as long as the circumstance - of it being without any public interest - is established.

Now, can there be a conspiracy to commit such offences which the prosecution alleges occurred without any intention or knowledge on part of the offender, but only because the circumstances were found to exist? For example, consider the case against Dr. Manmohan Singh in the coal-allocation scam. The prosecution may allege that he intentionally acted/omitted to act in a manner to obtain for other persons a pecuniary advantage without any public interest. But it is also an offence, if it can be shown that other persons benefited from the acts/omissions of Dr. Singh and this was without public interest, regardless of whether or not these acts/omissions were known/intended. Can there be a conspiracy charge in the latter? A conspiracy is premised on parties agreeing on a course of conduct with the intention or knowledge that this conduct upon completion would or would result in the commission of an offence. It would, therefore, be rather absurd to charge a person for a conspiracy where the entire case is based on the non-existence of a mental element to commit crime. The English House of Lords in R v Saik [2006 UKHL 18] and the U.K. Law Commission have considered this problem of conspiring to commit statutory offences in some detail. We remain without any comparative assessment of the problem in India.

Alternatives

These problems remain a symptom of a deeper malaise: an insistence to employ conspiracy charges where they are not meant to be. As mentioned at the outset, conspiracy is an inchoate crime. The rationale behind criminalising conspiracies is particularly attuned to its inchoate nature. If offences are eventually committed, the fact of persons having conspired to commit them remains more suited to consideration as yet another fact to appreciate the gravity of that conduct and punish appropriately, rather than insist on treating the initial agreement separately as conduct amounting to an offence.

Are there alternatives? Well, yes. It is not necessary for a prosecutor to employ conspiracy charges to round up various offences and offenders. If the allegation is that an offence is committed pursuant to the same, then there is the route of abetment by conspiracy, under Section 107 IPC. It recognises the notion that conspiracy is only facilitating the commission of other offences. If there is involvement in the commission of the offences itself - say X, Y and Z were robbing the bank together - then there is the route of group liability under Section 34 of the IPC. The procedural advantages would be retained to cover various associate offences (suppose, forging keycards to gain entry to the bank) committed in furtherance of the main offence. The fact remains though, that today employing conspiracy charges is deeply embedded in the fabric of prosecutions that this question is considered mostly academic to only be shoved under the carpet. Until these problems are faced in some high-profile cases or repeatedly seen in a particular set of offences (as happened in England for conspiracy in money laundering offences), we are unlikely to receive the thorough re-appraisal of conspiracy law that is needed today.

The IPC and Conspiracy

Inchoate offences are perhaps the most theoretically engaging area of the criminal law. On this blog, we ran a couple of posts discussing the issues surrounding criminal attempts (which you can access here and here). Attempts, as we discussed, are however not in vogue as tools for the prosecution in India. What the prosecution does resort to, and nearly always in corruption cases, is the charge of criminal conspiracy under Section 120-B IPC. The one-size-fits-all strategy that is the zeitgeist makes conspiracy one of the most important offences to understand today. Which makes it a fit thing to do on this blog. In this post, I'll just throw out issues arising from a reading of the IPC.

Conspiracy and Inchoate Liability

Think of an offence as a transaction, which begins with some conduct on part of an individual [accused] and ends with logical consequence that the interests of another person are affected [victim]. Sometimes, there are certain circumstances surrounding this transaction that lend it a criminal colour. Now, the legislature may either deem an offence to occur upon the occurrence of conduct, or the consequence. When the line is drawn, especially at the consequence stage, it sometimes appears illogical and arbitrary to allow individuals to proceed that far before criminal liability kicks in. Why wait for the killer to shoot the victim when you knew she had a gun and was aiming at her? 

This idea, of drawing the line of criminality earlier by deriving it from the parent offence, is inchoate liability. By its very definition, it is relative to another offence. Two things here. First, its clear that inchoate liability can affect the accused himself, or persons surrounding the accused. After all, the law should be equipped to stop someone else from goading the accused to kill a person and handing her a loaded gun. Such abetment is necessarily criminalised. Second, inchoate liability qua the accused ends when the parent offence is committed. I am not liable for attempt when my attempt succeeds in the offence itself, nor am I abetting someone when I go beyond the shouting and fire the gun myself. 

What is conspiracy, then, and where does it fit? Section 120-A of the IPC answers the first question and defines a criminal conspiracy as "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". This is limited by a proviso, 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 in pursuance thereof." It is also explained, that "it is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object." Given this definition, conspiracy appears to be a hybrid form, combining the inchoate liability attracted by the accused and an abettor to make them one enterprise. This is obviously supported by the fact, that inchoate liability through conspiracy already existed as a form of abetment under Section 107 of the IPC. 

120-B and More Questions Than Answers 

Let me acknowledge the big elephant in the corner by saying that yes, by punishing mere agreements to commit offences the IPC comes as close to a generic thought-crime as you get outside of 1984. What's more, the current offence is amazingly overbroad and criminalises potential agreements to commit civil wrongs following erstwhile British law. I think some constitutional challenges could yet be made to the offence under Section 120-B IPC, but that is beyond this post. From a mere reading of the IPC, several interpretive questions arise that are very interesting. Foremost among them, the paradox posed by criminal conspiracy at large - that it is an inchoate offence that can be punished even after the primary offence is complete. Even after the gang executes its masterplan to rob a bank concocted in shady corners and dark alleys [this is nearly para-phrasing the Supreme Court, mind you], not only would liability for the resulting offences follow, but also liability for conspiring to commit the primary offence of robbery and other offences. The hybrid nature of conspiracy goes beyond the persons attracted category, it seems.

Second, and peculiar to India, is the co-existence of the independent conspiracy offence under Section 120-B IPC with it being a form of abetment as explained under Section 107 IPC. The difference is simple: conspiring to commit offences is punishable under Section 120-B without any act/illegal omission being performed in pursuance of the conspiracy. Conspiracy to be punished as abetment always requires some acts/illegal omissions to follow. Neat? Not quite. To prove a criminal conspiracy, the prosecution necessarily requires some acts/illegal omissions to show for it. When you have those acts/omissions, it would make the conspiracy a form of abetment as well. So how do we logically choose? The choice in practice is clear with prosecutions rarely arising for conspiracy under abetment today across the country. This obviously has got to do with (a) the increased punishment possible for conspiracy, and (b) evidentiary relaxations under Section 10 of the Evidence Act that the prosecution gets when alleging a conspiracy exists. But theoretically, no clear answer can be found.

The idea of agreeing to commit an offence is the fulcrum of a conspiracy which can be punished. But what does this agreement entail, and what is special about it? Should the conspirators have the same intention with respect to each other, and the offence in question? If I agree with you to commit an offence, but don't actually want to commit any offence, would it be an agreement? Does everyone need to know what the other is doing, or would the exceptions akin to those under Explanation 5 to Section 108 apply? Would an agreement to commit an offence with a minor, or an insane or intoxicated person, amount to a conspiracy for the purposes of this section? The explanation to Section 120-A makes clear that the 'illegal act' in question need not be 'ultimate object' of the agreement. So for a transaction to be punished as a criminal conspiracy, should there be agreement as to the exact manner of carrying out that transaction - every illegal act involved requires prior agreement? Or is it allowing for a criminal conspiracy charge to follow whenever two persons agree to commit an offence in the course of a larger criminal transaction? 

And what about the way new offences don't require intention or knowledge requirements as are prevalent across statutes today. Can I conspire with others to commit such offences of strict liability? Or can I conspire to attempt to commit offences? The former is especially important, in light of the manner in which certain cases are proceeding on Section 13(1)(d)(iii) of the Prevention of Corruption Act, 1988. Likewise, if an offence requires a specific mental state as to circumstances for its commission (recklessness as to consent in rape, for instance), would it be sufficient for conspirators to be merely reckless as to those circumstances, or should they have intended the circumstances exist? The questions are nearly limitless, but rarely do they get addressed systematically in the standard textbooks available in the market. I hope to have sufficiently roused your curiosity for this area of criminal conspiracy with this taster, and in the next post we'll consider particular issues in some detail.

[This post was corrected on 24.02.2016 to remove certain typographical errors. All thanks to Ms. Juhi Gupta and Mr. Kartikeya Panwar] 

Special Offences - the Corruption Act and Cognizance

A feature common to many special offences created by statutes in India is the requirement to obtain sanction to prosecute the offender before proceeding to trial. Sanction in context of public servants means permission to prosecute them given by their superiors in office. The prosecution presents them a request for sanction outlining the allegations, and the sanctioning authority applies its mind to grant or deny sanction. Conventionally, this is seen as a step to prevent frivolous cases, and allows the executive to remain the best judge of how to handle issues. For if sanction is refused, no trial would follow. The Prevention of Corruption Act, 1988 contains such a requirement in Section 19.

This post considers the following questions: is sanction to prosecute mandatory to proceed against public servants on corruption charges? Is there a need for fresh sanction in case the allegations take a different colour during trial? If the allegations consist of corruption charges as well as other statutory offences which have independent sanction clauses, would multiple sanctions be needed? What is the effect of not obtaining sanction?

Is sanction really mandatory?
If you wish to proceed under the Prevention of Corruption Act, the answer is yes. Section 19 makes it clear that "no court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant" without there being prior sanction. The absolute nature of this requirement was repeatedly criticised because it allowed for further corruption, in that a department could shield one of its own by refusing sanction. To combat this, the provision was amended in 2014 in light of the Lokpal and Lokayuktas Act, 2013. This subsequent statute allows for a prosecution despite absence of sanction, if it is launched by the Lokpal/Lokayukta Office as the case may be.

Fresh Sanction if charges altered?
Some background to criminal procedure would help understand this better. Today, upon completing the investigation the prosecuting agency [CBI in most corruption cases] files what is conventionally called a chargesheet. This proposes that the accused be charged and tried for the specified offences, or that no offences are made out. The judge after hearing arguments on charge decides whether or not the accused should be charged with any offence and may then proceed to trial. The judge may frame charges for offences other than those proposed by the prosecution.

When we have a need for obtaining sanction before a court can take cognizance, this means that the prosecution must obtain that sanction before filing of the Chargesheet. Otherwise the judge would be barred from taking cognizance of the allegations itself. This sanction would naturally be relating to particular allegations made in the Chargesheet - a permission that a prosecution may be allowed against the specified accused for the specified offences. As the judge can differ from this view of the prosecution and frame different charges to those proposed, would that mean the prosecution would first need fresh sanction for the new offences before the actual charge can be framed?

Logically, the answer should be in the affirmative. The sanctioning authority applies its mind to whatever allegations are placed before it by the prosecution. If new allegations are brought forth, it would only be proper for the authority to re-evaluate its stance as well. I say this also because the contrary position could lead to great indiscretion at the hands of miscreant prosecutors. Cases might be brought under the relatively open ended Section 11 [receiving favour generally] or the attempts clause in Section 15, only for the prosecution to later argue its differently and seek the more meaty charges for offences under Sections 7 and 13. As I write, I am currently looking for decisions on this issue, and comments would be welcome.

Dual/Multiple Sanctions?
An example would help here as well. Consider a situation where a private citizen is accused of bribing the public servant. The prosecution decides to charge them together for conspiring to commit offences under the Corruption Act, and independently charge the public servant. Entering into a conspiracy is a separate offence punishable under Section 120-B the IPC, where to prosecute public servants prior sanction is needed under Section 197, Cr.P.C. Would we need sanction under both, if the public servant was to be tried for entering a conspiracy to indulge in his corrupt activities? 

Here's where it gets interesting. Section 197 Cr.P.C. differs remarkably from Section 19 of the Corruption Act. Section 19 applies without discrimination to each case to take cognizance of offences under the Corruption Act. Sanction under Section 197 is only required if the alleged offence was committed "in the discharge or purported discharge of his official duty" [it would take an entire post to discuss the meaning of this phrase]. The scope of Section 197 is wider in one sense though: it applies to retired officers, which Section 19 does not. Given these differences between the two sanction provisions, it seems plausible to argue that they serve different purposes. The Supreme Court has indicated this view has merit [see e.g., Romesh Lal Jain v. Naginder Singh Rana, (2006) 1 SCC 294].

But go back to Section 3 of the Act and you find Special Judges competent to try any offence under the Act as well as any conspiracy/attempt/abetment relating to the offences.  So would we still need separate sanctions in our fact situation, of trying a conspiracy to commit offences? In Romesh Lal Jain the Court wasn't dealing with a charge of conspiracy, so that decision would not apply here. Conspiracy charges were involved in Neera Yadav v. CBI [Allahabad High Court (Full Bench) Decided on 25.01.2006], where this issue was specifically considered. The Full Bench held no separate sanction under the Cr.P.C. would be needed to prosecute the public servant. What is left unclear then, is whether this view holds good only where 120-B is the only IPC offence, or where there is a composite conspiracy to commit other IPC offences along with those under the Corruption Act. The issue hasn't been specifically considered by the Apex Court, mostly because of an increasingly rigid view of the official duty test under Section 197, Cr.P.C.*

What if there is no sanction?
The answer is not a straight one. It depends on many factors: was there no sanction throughout trial, or just a delay in obtaining it? When was the challenge of sanction raised by the accused? It does appear by looking to Section 19(3) of the Act that the Legislature sought to minimise the influence lack of sanction might have on the trial. Very recently, the Supreme Court considered the result of no sanction in Nanjappa v. State of Karnataka [Crl. Appeal No. 1867/2012 decided on 24.07.2015]. The conclusions arrived at by the two judges indicate that the importance of sanction can be seen from a two-tiered perspective. Tier 1 being the trial before the Special Judge, and Tier 2 being the Appellate/Revisional Court hearings. No sanction before cognizance at Tier 1 means the Court is not one of competent jurisdiction and the trial is bad in law. What's more, this argument can be raised at any time during trial, even final arguments. It is good grounds for discharge as well. At Tier 2 though, the importance is markedly reduced, as seen from the restrictions in Section 19(3).**

Conclusion
Sanction is a crucial issue in corruption cases, and this post tried to raise some interesting issues in the field that are currently being considered by courts across the country. Next time, continuing with Section 19, we specifically look at Section 19(3)(c) of the Act.

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* Judges have repeatedly observed that it could never be part of an officers duty to commit offences under the IPC therefore sanction under Section 197 Cr.P.C. would not be needed. This, I think, puts the cart before the horse. By assuming that the officer committed the offence while considering the point of sanction the court unconsciously (or very consciously) precludes itself from ever concluding that the act was in the course of duty. The Court also ignores the use of 'purported' in the provision.

** In Nanjappa, the Trial Court acquitted the accused on merits, despite also observing the lack of sanction. The High Court overturned the decision considering the merits, and on sanction observed that the argument ought to have been raised at the outset. The Apex Court reversed the decision purely on the sanction issue in a Criminal Appeal. This is seemingly in clear violation of 19(3)(a): "no finding, sentence or order passed by a special judge shall be reversed or altered by a court in appeal, confirmation or revision ...". The decision therefore impliedly suggests that the Supreme Court is not a Court of Appeal for purposes of Section 19.