Section 120b IPC – Criminal Conspiracy Definition And Punishment

Introduction

A conspiracy is an agreement between two or more persons to commit an offense. The mere meeting of mind of the parties to commit an offense is a conspiracy.

Initial Position

Originally, the IPC consisted of only two provisions for punishing the offense of conspiracy. First, the provision of section 107, which made a conspiracy by the way of abetment, punishable. The others are specific provisions involving offenses which are included conspiracies to commit them. As for example,  Section 310 (in the definition of thugs), Section 400 (belonging to a gang of dacoits), Section 401 (belonging to a gang of thieves), etc.

Current Position

The position, however, changed with the Indian Criminal Law Amendment Act of 1913 (8 of 1913).

Chapter V-A of the Indian Penal Code (45 of 1860) deals with ‘Criminal Conspiracy’.  Legislature inserted it in the aforesaid amendment. It consists of two sections 120A and 120B. Section 120A gives the definition of criminal conspiracy. Section 120B deals with punishment for committing the offense of criminal conspiracy.

The law of conspiracy covers the following:

(i) Conspiracy as a Substantive offense i.e. conspiracy is in itself an offense (ch V-A: ss 120A and 120B);

(ii) Conspiracy as a form of abetment (ch V: s107 Secondly);

(iii) Conspiracy to wage, attempt to, or abet war against the Government of India (ch VI: s 121A), and

(iv) Involvement in specific offenses (ch XVI: ss 310 and 311; ch XVII: ss 400, 401 and 402).

Criminal Conspiracy

An offense occurs when:

a) Two or more persons agree to do an illegal act.

b) Two or more persons cause to be done an illegal act.

c) If two or more persons agree to do a legal act by illegal means.

d) Two or more persons cause to be done a legal act by illegal means.

An agreement is made between two or more persons to commit any one of the aforesaid offenses, is called criminal conspiracy.

Moreover, an act done in pursuance of this agreement is part of the criminal conspiracy. Hence, it is immaterial that the act done is the ultimate object or merely incidental to the object.

Thereby an agreement for committing an offense, two or more persons agree to do an illegal act or cause to be done an illegal act is amounting to criminal conspiracy even though the object of the agreement is not fully accomplished.

Section 120A of the Indian Penal Code (45 of 1860)

A plain reading of s 120A gives ingredients of Criminal Conspiracy as follows;

• There should be two or more persons.
• There should be an agreement between themselves.
• The agreement must be to do or cause to be done:

(a) an illegal act; or

(b) a legal act by unlawful means.

Moreover, in the case of a conspiracy to commit an illegal act, the mere agreement is sufficient to impose liability; however, in the case of conspiracy, to do a legal act by illegal means, there ought to be some overt act which is committed by parties to the agreement.

Punishment of Criminal Conspiracy

Sec 120B deals with the punishment of criminal conspiracy. This section is in two parts i.e. sec 120B (1) and 120B (2).  Any person, whoever is a party to a criminal conspiracy to commit an offense is punishable under this section.

Sec 120B (1) deals with heinous and grievous offenses. However, sec 120B (2) deals with minor criminal offenses.

Firstly, we will discuss sec 120B(1) and then sec 120B (2).

Section 120B (1) of the Indian Penal Code

Particularly, this section deals with the conspiracy of three types of offenses. They are as follows:

• an offense in which punishment is death;
• an offense in which punishment is life imprisonment;
• or an offense in which punishment is rigorous imprisonment for a term of two years or upwards.

According to Section 120B (1), when there’s no expressed provision regarding the conspiracy of aforesaid offenses in the code then this section is applicable. Further, it says that the parties who commit any of the aforesaid offenses are punishable in the same manner as the abetment of such offenses.

Section 120B (2) of the Indian Penal Code

This section deals with the criminal conspiracy of remaining offenses. Generally, it covers minor criminal offenses. In other words, we can say it covers the conspiracy of those offenses which is punishable with less than 2-years of imprisonment. Thus, the section imposes nominal punishment i.e. imprisonment for the term not exceeding 6 months.

Thus, section 120B (2) says that a person who is the party in criminal conspiracy other than section  120B  (1), shall be punished with

• either imprisonment for the term of not exceeding 6 months
• or with fine or both

Conclusion

Any agreement between two or more person to commit an offense is a criminal conspiracy. For the purpose of punishment, s 120B divides criminal conspiracies into two classes. A party to a conspiracy to commit a serious offense, is, in the absence of an express provision in the IPC, punished in the same manner as if he had abetted the offense. Conspiracies to commit any other offenses punishable with imprisonment for a term up to six months with or without fine or both.

Section 34 of the Indian Penal Code, 1860

Introduction

Section 34 of the Indian Penal Code talks about the joint liability of persons involved in a criminal act. It says that if more than one person is involved in a criminal act done to satisfy a common intention, then each of such persons will be liable in the same way as if it was done by him alone.

The ingredients of Section 34 are as follows

• There should be a criminal act;
• Several persons should do the act;
• The criminal act must be done to satisfy a common intention of all;
• There must be actual participation of all the persons in some way or the other in furthering the common intention.

Common Intention

When the Indian Penal Code was enacted in 1860, Section 34 at that time did not include the provision of common intention, and later an amendment was made in the year 1870 to include it. Intention occupies a very crucial place in criminal law. The term ‘intention’ is not defined anywhere in the Indian Penal Code, but Section 34 of it deals with common intention. It implies a pre-decided plan and acting in accordance to execute that plan. It comes into the picture before the commission of the act.

Section 34 is limited to a situation, where an offense requires a particular criminal intention or knowledge and is committed by more than one person who shares that intention. Each person who participates in the act with such knowledge or intention will be liable in the same way as if it were done by him exclusively with that intention or knowledge. The liability of all the individuals involved in this circumstance is called ‘Joint Liability.’

Joint Liability

Joint liability occurs in the case when there is the existence of common intention in the criminal act done. If it can be shown that it was done by one of the accused persons in furtherance of the common intention of all, then the liability for the act may be imposed on any one of the persons in the same manner as if the act were done by him in his capacity. Court decisions have emphasized on the point that meeting of minds need not be something always very much before the incident, but could be something that may develop on the spot, at the very moment when the crime is being committed.

Proving that every one of the persons was involved in the actual act is irrelevant. The case of Barendra Kumar Ghosh v. King Emperor is one of the most important and earliest cases where the court convicted another person for the act of another done in fulfillment of common intention. A group of armed persons had entered the police station and demanded money from the postmaster, where he was counting it. They fired from the pistol at him, due to which he died on the spot. All of the accused were able to escape without taking money. The Police were able to catch Barendra Kumar Ghosh who was standing outside the post office keeping a check. Barendra on being arrested contended that he was only standing as a guard, but the Calcutta high court convicted him for the murder of the postmaster. His appeal to the Privy Council was also rejected.

There is also a general rule in the criminal jurisprudence that the courts cannot distinguish between the people involved in an activity and it is impossible to see what part is played by whom in the commission of the act, so each person is held jointly liable for the acts of another.

Common intention versus Similar Intention

A common intention can only be said to be formed when the intention of one is known to all others and shared by them. It does not mean the similar intention of several persons formed at the moment. The mere presence of the accused together is not sufficient to form a common intention to commit the offense. It is necessary that the intention of each one of ‘several persons’ be known to each other for constituting common intention; otherwise, it will be a similar intention. Similar intention can happen for several persons at the same time.

The distinction between a common intention and similar intention is a real one and if overlooked by courts, may lead to a miscarriage of justice. Section 34 can be invoked only when the accused shares a common intention and not one a similar intention. Unless the common intention is proved, individuals will be liable for their actions only. If there occurs any doubt, the benefit of the doubt is given to the accused.

Conclusion 

Section 34 does not lay down a separate offense but defines the liabilities. Therefore, it is always read with other sections for framing of charges or while deciding the punishment. The maximum sentence for an offense would depend upon the main offense along with which Section 34 is applied. To bring this section into effect a prior meeting of minds need not necessarily be proved, but it may well develop on the spot as between several persons and could be decided based on the facts and circumstances of each case. There must be an ultimate objective, the fulfillment of which should be the goal of each person involved.

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Never Underestimate The Influence Of Criminal Provision Of Defamation – Section 499 And 500 Of IPC

Defamation is an oral or written statement that injures someone’s reputation. Section 499 and Section 500 of IPC deals with the defamation as an offense. It is considered as the statement of fact, which is unprivileged and not true, that must harm someone’s reputation, either by spoken or written, and the same must be published before the third party. The term Defamation covers mainly the false allegation or communication, which tarnished the reputation or decreased the respect that they hold in the society at large. Written defamation is known as “libel,” which is also considered as the permanent form of the defamation,  while spoken defamation is known as “slander.” Both forms of defamation, i.e., libel and slander, derive its origins from English common law, but they are not treated as distinct from each other in Indian jurisprudence.

Every person has a right to have his reputation preserved free from the violation. This right of reputation is acknowledged as an inherent personal right of each and every person as part of the right of personal security under article 21 of the Constitution of India and also considered as one of the most important natural rights. An affection towards reputation inspires people to do great things, acquire fame and name, which is the mainspring of life in every walk of life. The main objective of the provision of the defamation is to protect one’s reputation, honor, and integrity in society.

Defamation in India at present

In India, defamation can be seen as both Civil as well as criminal offenses. The Sufferer or the person who got defamed is offered a legal remedy in both civil as well as criminal. In civil law, the remedy is covered under the Law of Torts where sufferer or victim may go to High Court or any subordinate courts for compensation or damages in monetary form and c, Section 499 provides the definition of “Defamation” and  legal remedy which is the punishment of simple imprisonment which may exceed up to 2 years or Fine or Both, defined under section 500 of the Indian Penal Code, 1862.

Section 499 of the IPC defined as

A person or anyone, by his words either spoken or  which shown as a clear intention to be read, or by signature or by any kind of representations which is visible, makes or publishes any charges or allegation which refers any person, intending to harm, or  have knowledge or having a reason to make believe that these kinds of allegation will harm, the reputation or dignity of such person, is to be understood by, except in the case hereinafter expected to defame that person.

The section further goes on to provide some other vital explanation to determine what would create or constitute defamation. Defamation under the IPC may constitute an imputation of a deceased person that would harm the reputation of that person if he is alive and showing clear intention which may be hurtful to the feelings and emotions of their family or any other relatives. It may also amount to defamation to make an imputation refers to an association or company or any collection of persons as such.

The Section however also state that no imputation is said to injures a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the respected character or moral or intellectual character of that person, or lowers the character of that person in respect of their caste or of their calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a disgusting state, or a state generally considered as disgraceful.

Section 499 of the IPC also explain some exceptions. These include “imputation of truth” which is essentially required for the “welfare of the public” and thus has to be published, on conduct of government officials which involves public duty, the act of any person touching any public question and merits of the public performance, if someone publishes reports of proceedings of Courts, merits of the case decided in Court of law or act and conduct of witnesses and others concerned with, etc.

Defamation under section 499 and Section 500 IPC vs. Freedom of Speech under Article 19(1)(a): –

The law of the defamation is not punishable in many countries or as we can understand by the way that defamation laws are not criminal laws in some countries of the world, for that the same reason a renowned lawyer-politician Mr. Subramanian Swamy along with several other petitioners (Rahul Gandhi, Mr. Kejriwal, etc.) came together to challenge the constitutionality of criminal defamation, i.e., (Sections 499 and 500 of the IPC) before the apex court i.e., Supreme Court.

 a)- Reason behind the Criminal Provision of Defamation (u/s 499/500) was challenged: –

The basic reason was that it was an unreasonable restriction on the constitutionally-guaranteed Right, i.e., Right to Freedom of Speech and Expression enshrined under Article 19(1)(a) of the Constitution of India. Section 499 of the Indian Penal Code gives us the Right to sue for Defamation if  the person’s reputation was damaged or intended to damage by any other, and the petitioner challenged this on the ground that this was prima facie infringement of Freedom of Speech and Expression provided by the Constitution of India under Article 19(1)(a).

 b)- Some of the arguments that why this criminal provision of defamation(u/s 499/500) must declare unconstitutionally: –

Firstly, Criminal provision of the defamation (u/s 499/500) do not constitute a “reasonable restriction” on speech, and even truth is not an exact defense because the defense only works when the statement is for the public good, which is a question of fact by the court. This could be arbitrary because Instead of making the plaintiff prove that the accused made a false statement, section 499 gives the accused the burden of proving that the statement was not only true but also for the welfare of the public at large.

Secondly, mere on the allegation, a magistrate may issue criminal process that the accused conspired with the person who actually made the allegedly defamatory written statements, also  a criminal suit u/s 499 can be filed even for speech given by the political leaders, which is considered as the most protected speech to sustain democracy.

Lastly, there is also an argument that it is not clear even why the criminal provision of defamation has existed because petitioners are in the opinion that civil remedy is more than sufficient for that.

 c)- Court Held: –

However,  the apex court of the country, i.e., the Supreme Court upheld criminal defamation (u/s 499/500) and its constitutional validity. The judgment delivered on May 13, 2016, by the Supreme Court in Subramanian Swamy V. The Union of India (“Judgement“) was delivered by Justice Dipak Misra, with Justice Prafulla C. Pant. The Judgment in the case started by analyzing the meaning of the terms ‘defamation’ and ‘reputation’, and their interaction of these terms with the right of the freedom of speech and expression mentioned under Article 19(1)(a) of the Indian Constitution.

The reputation of an individual must be secured as it was included in the protection of ‘dignity’, which is a very important aspect of the constitutionally protected right to life under article 21 of COI. Also, Defamation, in the right to freedom of speech and expression guaranteed under Article (19)(1)(a)  is subject to reasonable restrictions. The Judgement also recognizes principles of reasonable restriction are that the restrictions which should serve the interest of public and should not be excessive; and held that reputation of an individual is a basic element enshrined under Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity.

In addition, the court also emphasize for upholding the validity of the criminal defamation is online defamation, in the age of the Internet it can be effectively countered only by making it a criminal offense, and this particular law is concerning part of the state’s “compelling interest” to protect the dignity and reputation of citizens.

Finally, the Supreme Court holds that this criminal provision of defamation is not disproportionate. The reasonableness and its proportionality of a restriction are examined from the standpoint of the interest of the general public, and not from the person upon whom the restrictions are imposed. Applying this, the Court adjudged that criminal defamation law (u/s 499/500) to be proportionate. Further, the Supreme Court dismissed the petition which challenges the constitutionality of the criminal provision of defamation, holding that it was a reasonable restriction on the right to freedom of expression enshrined under Article 19(1)(a) of the Constitution of India.

 A person is bound to allow the existence of something that one may dislike or disagrees within other words -criticism, dissent, and discordance, but not expected to tolerate a rush which may tarnish the reputation of that person. (SC in Subramanian Swamy V. The Union of India [AIR 2016 SC 2728]  ).

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Seven Stereotypes About Self Defence Laws In India That Aren't Always True

Introduction

It is the primary duty of the state to protect its citizens from any harm. But circumstances may arise where the state aid is not available, or the state is not able to lend hands for the protection of an individual against imminent danger or harm. In such a situation, an individual is vested upon with rights by the state to use force to fend-off the immediate threat to his or someone else’s property or person. This right is the right of private defense or self-defense.

Right of Private Defence

The primary rule in criminal law is Self-help. Every country should provide its citizens with the right of private defense to protect his life, liberty, and property. This right also brings with itself numerous restrictions and limitations. Though the right of private defense was granted to the citizens as a weapon for self-defense but is often misused by people for their evil purposes.

In India, Section 96 to 106 of Indian Penal Code, 1860 provides for provisions relating to the right of Private Defence of person and property. This right can only be exercised when recourse to public authorities is not available to a person. One of the main principles on which the right of private defense is based is ‘reasonableness’ of the defense used. The extent to exercise the right of private defense depends on the reasonableness of the apprehension of the danger and not on the extent of actual danger.

Statutory Provision for self-defense in India

Section 96 of Indian Penal Code

This section talks about the things done in private defense and explains that nothing is an offense which is done in the exercise of the right of private defense.

Right of private defense is not an offense, and in fact, it is an act done in defense. The right of self-defense under Section 96 is not absolute but is clearly qualified by Section 99 which says that the right in no case extends to the inflicting of more harm than it is necessary for the purpose of defense. The burden of proof is upon the person who pleads for the right of private defense.

Consequently, this right cannot be allowed to be used as a shield to justify an act. A very careful weighing of the facts and circumstances of each case is required to decide as to whether the accused had, in fact, acted under this right. There is no place for assumptions on the part of the accused while exercising this right. There must be a reasonable apprehension about the possibility of an attack to exercise the right of private defense.

Section 97 of Indian Penal Code

Section 97 talks about the Right of private defense of the body and of Property. Each individual has a right to defend himself, i.e., his body or the body of any other person.  Similarly, he has the right to protect his property or else’s property, whether movable or immovable against an act which amounts to an offense of theft, robbery, mischief, or criminal trespass.

There must be an offense committed or attempted to be committed against a person who wants to invoke the plea of right of private defense. An injury caused to a man in question is not considered necessary for deciding the question of the accrual of the right of the private defense. Reasonable apprehension of causing grievous injury is absolutely enough to exercise the right of private defense.

Section 98 of Indian Penal Code

This section talks about Right of private defense against the act of a person of unsound mind, etc. The right of private defense also exists in cases which would not result into an offense due to the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on behalf of the person. Every person has the same right to private defense against the act which he would have if the act was an offense.

Section 99 of Indian Penal Code

Section 99 limits the exercise of the right of private defense. It lays down the various conditions under which the right of private defense has to be exercised or invoked.

The first three clauses of section 99 provide that this right cannot be invoked when:

• a public servant acting in good faith exercises his legal duty not giving rise to a reasonable apprehension of death or grievous hurt,
• any person acting the direction of a public servant in good faith exercises his legal duty not giving rise to a reasonable apprehension of death or grievous hurt,
• reasonable time exists to resort help of public authorities.
• There must be reasonable grounds to b believe that the act done was done by a person under public authority.

Section 100 of Indian Penal Code

Sec 100 specifies seven situations in the exercise of the right to private defense of the body extend to causing death. The right of private defense of the body extends to the voluntary causing of death or of any other harm to the assailant if the offense is of nature herein described:

• Such an assault may reasonably cause the apprehension of death
• Such an assault may reasonably cause the apprehension of grievous hurt
• An assault with the intention of committing rape
• An assault with the intention of gratifying unnatural lust
• Assault having the intention of abducting or kidnapping
• An assault with the intention of wrongfully confining a person which may reasonably cause him to apprehend that he will not be able to take protection from public authorities for his release.
• An act or attempt to throw acid

Section 101 of Indian Penal Code

This section prescribes for when the right of self-defense extends to causing any harm other than death. If the offense is not of the nature mentioned in the above section, the right of private defense of the body does not extend to the voluntary causing of death to the assailant but does extend, to the voluntary causing to the assailant of any harm other than death.

Read Also: Voluntary Causing Hurt : Provision and Punishment

Section 102 of Indian Penal Code

Section 102 deals with Commencement and continuance of the right of private defense of the body. As soon as a reasonable apprehension of danger arises to the body from an attempt or threat to commit the offense even though the offense may not have been committed, the right of private defense commences. And it continues as long as the apprehension of danger to the body continues. This apprehension should be real and reasonable.

In Kala Singh case, the deceased was a strong man of a dangerous character. Previously in a fight with the accused, he threw the accused on the ground, pressed him hard and bit him. The accused took up a light hatchet and gave three blows of the same on the brute’s head. The deceased died after three days of this fight. It was held that the circumstances raised a strong apprehension of danger in the mind of the accused that he would be killed otherwise. This apprehension was real and reasonable and not timid and fancy, and so his exercise of the right of private defense is justified.

Section 103 of Indian Penal Code

This section provides for when the right of private defense of property extends to causing death. Whereas sec 100 provides for the exercise of the right of private defense of the body extends to causing death. The right of private defence of the property also extends to death when voluntarily caused or if any harm is caused in the form of an offense. Provided such an offense is in the form of the following descriptions, namely:

• Robbery
• House-breaking by night
• Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property
• Theft, mischief, or house-trespass

Section 104 of Indian Penal Code

It says that if the committing or attempting to commit any offense leads to the exercise of the right of self-defense, then such a right does not extend to the voluntary causing of death but extends to the voluntary causing to the wrongdoer of any harm other than death. Provided that the offense is not of any other nature as described in the previous section.

Section 105 of Indian Penal Code

Section 105 prescribes the commencement and continuance of the right of private defense of property. The commencement of the right of private defense of property takes place when a reasonable apprehension of danger to the property takes place. Continuation of this right against theft takes place until the offender affects his retreat with the property or the property has been recovered. Continuation of the right of private defense against robbery continues as long as the offender causes or attempts to cause to any person death or hurt.

Section 106 of Indian Penal Code Right

This section mentions that private defense against deadly assault when there is a risk of harm to an innocent person. If in the exercise of the right of private defense by a person against an assault causes reasonable apprehension of death, the defender so situated, cannot effectually exercise the right of private defense without risk of harm to an innocent person his right or private defense extends to the running of that risk.

The obstacle is the doubt which exists in the mind of the defender if he is entitled to exercise his right even when there is a possibility of some innocent persons being harmed by his actions. According to this Section, in case of an assault which causes a reasonable apprehension of death, if the defender is facing a situation where there exists a risk of harm to an innocent person, there is no restriction on him to exercise his right of defense, and thus he is entitled to run that risk.

Conclusion

The right of private defense is a weapon to the citizens of India for their self-defense but is often used by many people for evil purposes or unlawful purposes. It is the court’s duty to make sure if the right was exercised in good faith or not.

The extent to avail the right of private defense depends on the real apprehension of danger and not on actual danger. This right can be extended only in some situations to a certain degree. The amount of force to be used should only be the amount necessary to counter the attack.