Criminal Conspiracy Under the BNS

Criminal conspiracy is now found in section 61 of the Bharatiya Nyaya Sanhita, 2023 (BNS), which came into force on 1 July 2024 and took the place of sections 120A and 120B of the old Indian Penal Code. Section 61(1) defines the offence as an agreement between two or more persons to do an illegal act, or a legal act by illegal means, and section 61(2) sets the punishment. The agreement itself is the core of the offence, and for an agreement to commit an offence nothing more than the agreement has to be shown.

This note is for B.A. LL.B. and LL.B. students preparing for criminal law papers, and for any reader who has seen the word "conspiracy" in a news report or an FIR and wants to know what it actually means. The idea is old, but the section numbers have changed, and examiners now expect the BNS numbering.

What does section 61 of the BNS say?

Section 61 sits in Chapter IV of the BNS, titled "Of Abetment, Criminal Conspiracy and Attempt". In the text passed by Parliament, section 61(1) reads in substance as follows:

• When two or more persons agree with the common object to do, or cause to be done, (a) an illegal act, or (b) an act which is not illegal by illegal means, the agreement is a criminal conspiracy.
• Proviso: an agreement other than an agreement to commit an offence is not a criminal conspiracy unless some act besides the agreement is done by one or more parties in pursuance of it.
• Explanation: it does not matter whether the illegal act is the ultimate object of the agreement or only incidental to it.

Compare this with old section 120A of the IPC. The structure is the same, but the BNS adds the words "with the common object". In an answer, point this out in one line. Do not overstate it: until the courts interpret the new words, the safe position is that the settled meaning of conspiracy carries over.

How is criminal conspiracy punished?

Section 61(2) follows the old section 120B closely and splits conspiracies into two groups:

1. If the conspiracy is to commit an offence punishable with death, imprisonment for life or rigorous imprisonment of two years or more, and the BNS has no express provision for punishing that conspiracy, the conspirator is punished as if he had abetted the offence.
2. Any other criminal conspiracy is punishable with imprisonment of either description up to six months, or fine, or both.

The first limb sends you to the abetment provisions. Section 49 of the BNS says that where the abetted act is committed and there is no express provision, the abettor gets the punishment provided for the offence. So a conspiracy to commit a serious offence can carry the same punishment as the offence itself. The Explanation to section 49 also says an act is committed in consequence of abetment when it is committed "in pursuance of the conspiracy", which is why the two chapters are read together.

What are the ingredients a court looks for?

For an exam answer, break the offence into these parts:

• Two or more persons. One person cannot conspire with himself.
• An agreement. A meeting of minds, not mere knowledge, discussion or suspicion.
• An unlawful object or unlawful means. Either the act agreed on is illegal, or a lawful act is to be done by illegal means.
• An overt act, only in some cases. If the agreement is to commit an offence, no further act is needed. If it is to do some other illegal act, the proviso requires an act in pursuance of the agreement.

A simple example: three friends in Nagercoil agree over the phone to forge a mark sheet. The agreement is to commit an offence, so the conspiracy is complete when they agree, even if the forgery is never carried out. If they go ahead, they may also be liable for the forgery itself.

How do you prove a conspiracy that happened in private?

Conspirators rarely sign a document. Courts accept that the agreement is usually inferred from conduct and surrounding circumstances. In State (NCT of Delhi) v. Navjot Sandhu (Supreme Court, 4 August 2005), the Parliament attack case, the Court quoted its earlier decision in Esher Singh v. State of A.P. that it is not always possible to give affirmative evidence about the date on which a conspiracy was formed. The same judgment relied on Kehar Singh v. State (Delhi Administration), (1988) 3 SCC 609, for the point that there should be prima facie evidence that a person was a party to the conspiracy before the special evidence rule is used against him.

That rule is now section 8 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaced section 10 of the Indian Evidence Act. Where there is reasonable ground to believe that two or more persons have conspired, anything said, done or written by any one of them in reference to their common intention, after the intention was first entertained by any of them, is relevant against each of them, both to prove the conspiracy and to show that a person was part of it.

Notice two limits built into section 8. First, there must be reasonable ground to believe a conspiracy exists before the rule applies, so the prosecution cannot use a co-accused's statement to create the conspiracy out of nothing. Second, only what is said, done or written "in reference to their common intention" counts. A boast made months after the plan was abandoned, or a narrative given to the police after arrest, does not fit easily within those words.

A common mistake in answers is to treat section 8 as making the statement conclusive proof. It does not. It makes the statement a relevant fact against each conspirator, and the court still weighs it with the rest of the evidence.

Conspiracy, common intention and organised crime: what is the difference?

• Section 3(5) BNS (old section 34 IPC) deals with a criminal act done by several persons in furtherance of a common intention. It is a rule of joint liability and needs an act actually done.
• Section 61 BNS is a substantive offence. The agreement alone can be punished.
• Section 111 BNS creates the new offence of organised crime, which is a separate provision. Check its text before linking it to conspiracy in an answer.

How should you write about conspiracy in an exam?

1. Start with the provision: section 61 BNS, with section 120A and 120B IPC in brackets as pointers.
2. State the definition and break it into ingredients.
3. Explain the proviso and the role of an overt act.
4. Set out the punishment under section 61(2) and its link to section 49.
5. Deal with proof: circumstantial evidence and section 8 BSA, with Navjot Sandhu.
6. Close with a short illustration and the difference from section 3(5).

If you want to see how charges like these are framed in real matters, sessions in the college legal aid clinic are a good place to read actual FIRs and charge sheets with a teacher.

Sources

• India Code: Bharatiya Nyaya Sanhita, 2023: official record of Act 45 of 2023, enforced from 1 July 2024.
• PRS Legislative Research: Bharatiya Nyaya (Second) Sanhita, 2023: bill history and passage dates.
• Text of the Bharatiya Nyaya (Second) Sanhita, 2023: sections 3(5), 49, 61 and 111.
• PRS Legislative Research: Bharatiya Sakshya (Second) Bill, 2023: bill history.
• Text of the Bharatiya Sakshya (Second) Bill, 2023: section 8 on things said or done by a conspirator.
• State (NCT of Delhi) v. Navjot Sandhu (2005): Supreme Court judgment on proof of conspiracy.
• Indian Penal Code, 1860: old sections 120A and 120B, for comparison.