Section 120B of Indian Penal Code, 1860 – Explained!

On the other hand, according to the second clause of this section, any other kind of criminal conspiracy to commit an offence punishable with rigorous imprisonment of less than two years or a criminal conspiracy to commit an act which is prohibited by law or which furnishes ground for a civil action or a criminal conspiracy to commit an act which is not illegal by illegal means, has been held to be comparatively lenient and a party thereto shall be punished with simple or rigorous imprisonment for a term not exceeding six months, or with fine, or with both.

The Bombay High Court hold the view that in view of section 17, Indian Trade Unions Act, 1926, clause (2) of section 120-B, Indian Penal Code does not apply to trade unions.

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Since criminal conspiracy is an offence in itself irrespective of the fact whether any offence in pursuance of this is committed or not, a person can be separately charged with respect to such a conspiracy. If any offence has also been caused in pursuance of the criminal conspiracy the charges against the conspirators will be for both, the conspiracy as well as the offence.

The Orissa High Court has held that even if the charge of criminal conspiracy is not proved against the accused persons, they would still be liable for the offences which they have committed. The Madras High Court is of the opinion that when an accused is charged under section 109 for having committed abetment of an offence and also under section 120-B for criminal conspiracy, and his liability as an abettor has been established by the evidence, he should be punished under section 109 and not under section 120-B of the Code. In Yash Pal Mittal v. State, the Supreme Court has held that where the object of the conspiracy was cheating by personation under section 419 of the Code which is punishable with simple or rigorous imprisonment up to three years, prior sanction under sections 196 (1) (b) and 196 (2) of the Code of Criminal Procedure, 1973 is not needed even though there were charges of some non-cognizable offences also against the accused. The Delhi High Court has held that where the above provisions are not applicable and the criminal conspiracy has been committed in India prior sanction is not necessary either for investigation or for prosecution.

If the offence under this section falls under clause (1) it is cognizable if the object of the conspiracy is to commit a cognizable offence, but not otherwise. It is bailable if the object of the conspiracy is to commit a bailable offence, but not otherwise. It is a non- compoundable offence, and is triable by a court of session, metropolitan magistrate or magistrate of the first class; except when the object of the conspiracy is to commit an offence which is triable exclusively by a court of session, offence under this section is also triable by a court of session. If the offence falls under clause (2) of this section, it is a bailable and non-compoundable offence triable by magistrate of the first class or a metropolitan magistrate.

In State of Maharashtra v. Som Nath Tliapa, popularly known as the Bombay bomb blast case, the accused was alleged to have sent his jeeps and men for smuggling and transporting RDX. These jeeps had cavities to conceal RDX. Traces of RDX were also found in the jeeps. The Supreme Court held that the material transported being RDX, intent of its use for illegal purpose can be imputed to the accused, and he was rightly charged under section 3(3) of the Terrorist and Disruptive Activities (Prevention) Act, 1987. It was further held that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary.

In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any unlawful use.

When the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use.

In Kuldeep Singh v. State of Rajasthan, the accused persons were alleged to have entered into a conspiracy to murder the deceased. The evidence against one of the accused was that witness saw him going towards the house of the deceased along with other accused. The Supreme Court held that this alone was not sufficient to establish his guilt. Evidence of other witnesses were contradictory and so not reliable. The conviction under sections 302 and 120-B of the Code was thus set aside.

In Motorola Incorporated v. Union of India, the Bombay High Court has ruled a company being a juridical person is in a sense doli incapax and cannot have criminal intent. So it cannot be held guilty of criminal conspiracy. Thus, the word ‘whoever’ in section 120-B does not include a juridical person like a company.

In Moijjullah v. State of Rajasthan, there was a conspiracy as to enticing young girls from schools and colleges and sexually exploit them under threat and pressure. The victim girls were photographed in compromising positions and these photographs were used as tool to keep them quiet. The Supreme Court held that since the four accused acted according to very well organised plan, they all were convicted under sections 376/120-B rightly.

The evidence against one of the accused proved that he was not a silent spectator or casual visitor to the farm or the house of the other main accused where the said nefarious activities were carried on. He was held guilty under sections 376/120-B. Another accused did not commit rape or misbehave with the girls but he used to transport girls to farmhouse and house of the main accused from their respective residences or school and he also arranged food etc. for them.

He was held guilty under section 120-B. Names of two accused persons were not found in depositions of victim girls. The victim girl who was alleged to have been raped by them did not support the prosecution case against them. There was no evidence to connect them with criminal conspiracy with the main accused.

Their acquittal was held to be justified. The Supreme Court also held that offences under sections 416, 420, 471 and 474 cannot be committed by a body corporate as fraudulent or dishonest intention can never be attributed to it.

In State (NCT of Delhi) v. Navjot Sandhu, the facts were that the Parliament of India was attacked on April 13, 2001. The gun battle lasted for about thirty minutes. Five terrorists were killed in the process in which eight security personnel and one gardener also lost their lives while thirteen security personnels and three others were injured. The Supreme Court held as under:

1. With reference to sections 50 and 2 (h) of Prevention of Terrorism Act, 2002, i. e., POTA (since repealed) sanction for prosecution under section 196, Code of Criminal Procedure, 1973 accorded by the Lt. Governor under Article 239 of the Constitution is valid. The Government of NCT of Delhi Act, 1991, does not in any was affect the validity of delegation of such power to the Lt. Governor by the Presidential notification under Article 239 (1) of the Constitution.

2. Provisions under the POTA were not invoked against the accused on the very first day but only subsequently when further evidence came to light revealing planned terrorist act at the behest of certain terrorist organisations. In the circumstances action of police authorities in deterring invocation of POTA is not mala fide with reference to section 3 (3) of the POTA and section 154 of the Code of Criminal Procedure, 1973.

3. The conspirators committed offences pursuant to by indulging in various overt acts would be individually liable for those in addition to being liable for criminal conspiracy under section 120-B, Indian Penal Code. Non-participant conspirators cannot be found guilty of offences committed by other conspirators. The principle of agency cannot be made applicable to find conspirators guilty of substantive offences not committed by them.

4. The call records relating to cellular phones are admissible and reliable evidences under sections 63 and 65-B (2) of the Evidence Act. Intercepted and recorded telephonic conversation under section 3 of Evidence Act, section 5 (2) of Telegraph Act of 1885 and Rule 419-A of Telegraph Rules of 1951 are not affected by illegality or irregularity in interception.

5. The accused was not denied facility of effective defence under Articles 21 and 22 of the Constitution. The accused was a party to the conspiracy and had played active part in various acts done in furtherance of the conspiracy and was thus liable to be convicted under section 3 (3) of the POTA.

6. With reference to section 25, Evidence Act and section 15 (1), Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) confession recorded by police officer can be basis of conviction of maker of confession but it is desirable to look for corroboration in the broad sense when it is retracted.

7. In view of the nature, potential and magnitude of the conspiracy with all attendant consequences and disaster events that followed, the maximum sentence of imprisonment for life would be appropriate under section 3 (3) of the POTA.

8. The incident resulted in heavy causalities and shaken the entire nation presents a rarest of rare case. The accused conspirator who is a surrendered militant and was bent upon repeating acts of treason against the nation is a menace to the society and so the sentence of death imposed on him is upheld.

9. This is a case where terrorists entered the Parliament House with sophisticated arms and powerful explosives when Parliamentary business was being conducted therein. The undoubted objective and determination of the deceased terrorists was to impinge on sovereign authority of the nation and the government and this amounts to waging or attempting to wage war against the Government of India under section 121, Indian Penal Code. To constitute this offence military or other forces need not be the direct of attack. Therefore, imposition of sentence of death on the accused is not interfered with. Foreign nationals can be held guilty under section 121. The accused was a party to the conspiracy. He took active part in series of steps taken to pursue the objectives of the conspiracy. The accused could be said to have abetted the offence of abetting waging of war justifies imposition of sentence of death on the accused.

The accused is guilty under section 4 (i) (a) of POTA as he knew about preparation of explosives to be used for attack and he procured chemicals etc. for that. The accused had knowledge of conspiracy and plans of terrorists to attack Parliament House. His illegal omission to apprise police or magistrate of design of the conspirators which is act of waging war would make him guilty under section 123, Indian Penal Code. The fact that no charge under section 123, Indian Penal Code was framed against him would not prejudice him because charge of waging war and other allied offences are subject-matter of charges.

10. In view of the above, sentence of death imposed on the accused is confirmed. The other accused stands convicted under section 123 of the Code and sentenced to rigorous imprisonment for ten years and a fine of Rs. 25,000/- and in default of payment of fine imprisonment for a further period of one year. The appeals filed by the State against the acquittal of two accused are dismissed.

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