Criminal Conspiracy under Section 61 BNS: Meaning, Ingredients and Case Laws

Some of the most serious crimes are the product of planning by two or more persons acting together. The assassination of Rajiv Gandhi, the terror attacks of 26/11, the Nithari serial murders: each involved a conspiracy, an agreement between several persons to commit a crime. The criminal law recognises the special danger of collective planning by making the agreement itself an offence, whether or not the planned crime is carried out. Section 61 of the Bharatiya Nyaya Sanhita, 2023, formerly Sections 120A and 120B IPC, codifies the offence of criminal conspiracy. This module walks through the section, its ingredients, its interaction with the doctrines of common intention and abetment, and the leading Indian cases.

1. Meaning and Concept

Conspiracy in criminal law

A conspiracy is an agreement between two or more persons to do something unlawful. The essence of the offence is the agreement itself. Once two persons meet and agree to commit an offence, the offence of conspiracy is complete. It does not matter that the agreement is never carried out, that the intended victims are never harmed, or that the participants change their minds before the crime. The law treats the meeting of criminal minds as sufficient by itself to found criminal liability.

The agreement as the essence of the offence

The three propositions

The offence is the agreement, not the act. Once the agreement is entered into, the offence of conspiracy is complete.
It requires a plurality of persons. A single person cannot conspire with himself. There must be at least two minds meeting.
The agreement must be to do an illegal act, or a legal act by illegal means. Agreements to do lawful things by lawful means are not conspiracies, however concerted the planning.

Why the law punishes conspiracy

Collective danger. Crimes planned by several persons are usually more dangerous than crimes committed by one. Collective planning brings together resources, skills, and reach that a lone offender lacks.
Prevention. Punishing the agreement enables the state to intervene before the planned crime is committed. Without a separate offence of conspiracy, the state would have to wait until the crime was attempted or completed.
Deterrence. Making the agreement itself criminal deters people from joining criminal enterprises at all.
Persistence. Once several persons have agreed to commit a crime, they are less likely to abandon it. Group commitment increases persistence, and the law responds by punishing the initial agreement.

2. Historical Origin

English common law: the Poulterers' Case (1611)

📖 The Poulterers' Case, (1611) 9 Co Rep 55b

Several poulterers had conspired to falsely accuse Stone of an offence. Their scheme was uncovered before Stone was prosecuted, and they were charged with conspiracy. The court held that the mere agreement was punishable, even though Stone had suffered no harm. Rule: the agreement itself, without any subsequent act, is a criminal offence. The Poulterers' Case is the classical foundation of the modern common law of criminal conspiracy.

Reception into Indian law

The Indian Penal Code, 1860, originally did not treat conspiracy as a general offence. It contained specific conspiracies (waging war, dacoity, and others) as offences, but the general doctrine of the Poulterers' Case was absent. This was seen as a gap, particularly during the colonial period when conspiratorial activity by nationalist movements became a concern.

Sections 120A and 120B IPC (added 1913)

The Criminal Law (Amendment) Act, 1913, added Sections 120A and 120B IPC. Section 120A defined criminal conspiracy along the lines of the English common law. Section 120B provided the punishment. The 1913 amendment was controversial in its time, criticised as a colonial provision aimed at nationalist meetings. But the provisions have been retained in independent India and have been widely used in prosecutions of organised crime, terrorism, and corruption.

Continuation in the BNS as Section 61

The Bharatiya Nyaya Sanhita, 2023, retains the offence of criminal conspiracy, moving it from Sections 120A and 120B IPC to Section 61 BNS. The text is substantially unchanged. Section 61(1) contains the definition (formerly Section 120A IPC), and Section 61(2) contains the punishment (formerly Section 120B IPC).

3. Statutory Provision

Section 61(1) BNS: definition

Section 61(1) BNS (formerly Section 120A IPC)

When two or more persons agree to do, or cause to be done:

(a) an illegal act; or
(b) an act which is not illegal by illegal means,

such an agreement is designated a criminal conspiracy: Provided 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 to such agreement in pursuance thereof.

Section 61(2) BNS: punishment

Section 61(2) BNS (formerly Section 120B IPC)

Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Sanhita for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine, or with both.

The proviso and its significance

The proviso to Section 61(1) makes a critical distinction. Where the agreement is to commit an offence (an illegal act that is itself criminal), the offence of conspiracy is complete on the agreement alone. No further act is required. Where the agreement is to do a legal act by illegal means (an illegal act that is not itself an offence, but achieves an unlawful end by unlawful means), an overt act in pursuance of the agreement is required. Without such an overt act, no offence of conspiracy is made out.

4. Ingredients of Section 61

Two or more persons

Conspiracy requires a plurality. A single person cannot conspire with himself, and one person cannot be convicted of conspiracy where all the others have been acquitted (subject to the special rule for conspiracy with unidentified persons). The number is not fixed: two is enough.

An agreement

The essence of the offence. The agreement need not be formal or documented. It may be inferred from words, from conduct, or from a combination. It may be tacit rather than express. What is required is a meeting of minds on the criminal objective. Where two or more persons act in concert with a shared understanding, an agreement is present, whether or not it was ever spoken aloud.

To do or cause to be done

The section covers both direct commission and causing to be done. The conspirators need not intend to commit the offence themselves; it is enough that they intend it to be committed. A person who agrees with another to procure a third to commit the offence is a party to a conspiracy.

An illegal act, or a legal act by illegal means

The object of the agreement must be either:

An illegal act. The intended object is itself illegal, either as an offence or as an act contrary to law.
A legal act by illegal means. The end is lawful, but the means adopted are illegal. Illustration: an agreement to force a debtor to pay by kidnapping his family. The debt is lawful; the means are not.

5. Meaning of Illegal Act

Illegal, in Section 61, has the broad meaning given by Section 2(15) BNS, which follows Section 43 IPC. It includes anything which is an offence, or which is prohibited by law, or which furnishes ground for a civil action. This is significantly wider than mere offences. An agreement to commit a tort, or to breach a contract by unlawful means, may qualify as an agreement to do an illegal act. In practice, however, prosecutions under Section 61 focus on agreements to commit offences, and the wider category is rarely invoked.

6. The Overt Act Requirement

When it is required

The proviso to Section 61(1) requires an overt act in one specific case: where the agreement is to do a legal act by illegal means. Here, without an act besides the agreement, no offence is made out. The rationale is that agreements to do lawful things (even by unlawful means) should not, without more, be criminalised: some manifestation of the criminal intention beyond the agreement is required.

When it is not required

Where the agreement is to commit an offence, no overt act beyond the agreement is required. The offence of conspiracy is complete on the agreement alone. This is the classical rule of the Poulterers' Case, retained in Indian law. It is what makes the section a powerful tool of prevention: the state can intervene when the agreement is discovered, before any act is done in pursuance.

The significance of the distinction

To Commit an Offence	Legal Act by Illegal Means
Agreement to commit an offence.	Agreement to do a legal act by illegal means.
Object: an illegal act that is itself criminal (murder, theft, forgery).	Object: a legal act (payment of debt, obtaining information) by illegal means (kidnapping, intimidation).
The agreement alone is enough to complete the offence.	An overt act in pursuance of the agreement is required.
No further step is required for prosecution.	Some act must have been done beyond the mere agreement.
Classical rule of the Poulterers' Case.	Modern refinement, reflecting caution about criminalising mere planning of otherwise lawful ends.

7. Punishment under Section 61(2)

Where the offence conspired is grave

Where the conspiracy is to commit an offence punishable with death, life imprisonment, or rigorous imprisonment for two years or more, the conspirators are punished in the same manner as if they had abetted the offence. In practice, this means the same punishment as the substantive offence itself. Conspiracy to murder is punished in the same way as murder. Conspiracy to commit robbery is punished as if the conspirator had abetted the robbery.

Where it is not

Where the conspiracy is to commit a less serious offence (one punishable with less than two years' rigorous imprisonment, or with simple imprisonment or fine only), the conspirators are punished with imprisonment up to six months, or fine, or both. This graduated punishment reflects the reduced gravity of conspiracies aimed at less serious offences.

8. Proof of Conspiracy

Direct evidence rarely available

Conspiracies are, by their nature, secret. The conspirators rarely announce their intentions in public. Direct evidence of the agreement, particularly first hand testimony, is rarely available. Prosecutions must ordinarily rely on circumstantial evidence: the conduct of the alleged conspirators, their meetings, their communications, and the sequence of events leading up to and following the alleged offence.

Section 8 BSA on relevance of conspiracy

Section 8 BSA (formerly Section 10 IEA)

Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.

Section 8 BSA is one of the most powerful evidentiary provisions in the Indian statute book. Once reasonable ground to believe in a conspiracy is established, the acts, words and writings of any one conspirator, done in reference to the common intention, become admissible against all the other conspirators. This exception to the general rule against hearsay makes conspiracy prosecutions possible where direct evidence is unavailable.

Circumstantial evidence and inference

The Supreme Court has repeatedly held that a conspiracy may be inferred from circumstantial evidence. The prosecution must show a chain of circumstances so consistent with the conspiracy hypothesis, and so inconsistent with any other hypothesis, that the only reasonable inference is that the accused were parties to the conspiracy. State of Tamil Nadu v. Nalini, (1999) 5 SCC 253, is the leading Indian case on this proof standard, decided in the context of the Rajiv Gandhi assassination conspiracy.

9. Conspiracy vs Common Intention (Section 3(5))

Section 61: Criminal Conspiracy	Section 3(5): Common Intention
A distinct substantive offence. Chargeable on its own.	A general doctrine of joint liability. Not chargeable on its own.
The offence is the agreement. Complete on the meeting of minds.	The doctrine attaches liability to the criminal act done at the scene.
Presence at the scene not required. The conspirator may be far away.	Presence at the scene required, in the extended Barendra Kumar Ghosh sense.
Meeting of minds usually formed in advance and often documented indirectly.	Meeting of minds may form on the spur of the moment at the scene.
An overt act is required only for legal-act-by-illegal-means conspiracies (proviso to Section 61(1)).	The criminal act itself is the overt act.
Punishment prescribed by Section 61(2) BNS.	Punishment is the substantive offence in the same manner as if committed alone by each participant.

10. Conspiracy vs Abetment by Conspiracy

Abetment by conspiracy is one of the three modes of abetment under Section 45 BNS. It requires:

An engagement in a conspiracy for the doing of an offence.
An act or illegal omission done in pursuance of the conspiracy.
The act or omission must be done in order to the doing of the offence.

Criminal conspiracy under Section 61 BNS is broader in that it can also cover agreements to do legal acts by illegal means (with the overt act requirement). It is narrower in that it always requires an agreement, whereas abetment covers instigation and aid without agreement. In practice, prosecutions often charge both Section 45 (abetment) and Section 61 (conspiracy) in the alternative, to ensure that if one form is not made out, the other may be.

11. Judicial Elaboration

Kehar Singh v. State (Indira Gandhi assassination)

📖 Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883

The Supreme Court considered the conspiracy to assassinate Prime Minister Indira Gandhi in October 1984. The two accused (Beant Singh, who died at the scene, and Satwant Singh) had fired the fatal shots. Kehar Singh, a distant relative, was charged with conspiracy along with several others. The Court held that a conspiracy may be inferred from circumstantial evidence, and that the acts and statements of the accused, in reference to the common intention, are admissible against each. Kehar Singh was convicted and sentenced to death. Rule: conspiracy in political assassinations can be proved through the chain of circumstances leading to the offence.

State of Tamil Nadu v. Nalini (Rajiv Gandhi assassination)

📖 State of Tamil Nadu v. Nalini, (1999) 5 SCC 253

The Supreme Court, considering the conspiracy to assassinate former Prime Minister Rajiv Gandhi in 1991, laid down comprehensive principles on the proof of conspiracy. The Court held that direct evidence of an agreement is rarely available and that the conspiracy must usually be inferred from circumstantial evidence, from the conduct of the accused, and from Section 10 IEA (now Section 8 BSA). The Court also held that all conspirators are liable for the acts of any conspirator done in furtherance of the common design. Rule: comprehensive modern framework for proving conspiracy in terrorism cases.

Yash Pal Mittal v. State of Punjab

📖 Yash Pal Mittal v. State of Punjab, (1977) 4 SCC 540

The Supreme Court laid down the classical principles governing conspiracy: the agreement is the essence; the agreement may be inferred from circumstantial evidence; the accused need not know all the other conspirators or all the details of the plan; it is enough that he is a party to the general design and is aware of its criminal object. Rule: conspiracy is a continuing offence that may be joined at various stages by different persons.

Ajay Aggarwal v. Union of India

📖 Ajay Aggarwal v. Union of India, (1993) 3 SCC 609

The Supreme Court held that conspiracy is a continuing offence and that a person joining the conspiracy at a later stage becomes a party to the entire conspiracy. Even those who join after most of the acts have been done can be liable, provided they knew of the criminal object and joined it. The Court also held that a conspiracy in India that is intended to have effects abroad is triable in India.

Firozuddin Basheeruddin v. State of Kerala

📖 Firozuddin Basheeruddin v. State of Kerala, (2001) 7 SCC 596

The Supreme Court considered a conspiracy relating to smuggling and financial fraud. The Court held that the prosecution must show, by circumstantial evidence, a common design and each conspirator's knowledge of that design. Mere association with the accused, or presence at meetings, is not enough. The connection must be to the criminal design.

Mohd. Yaqub v. State (Nithari)

📖 Mohd. Yaqub v. State (Nithari case)

The Nithari serial killings case involved complex conspiracy allegations against multiple accused. The Supreme Court's engagement with the case reaffirmed the framework laid down in Nalini and Kehar Singh: circumstantial evidence, chain of conduct, and Section 8 BSA (formerly Section 10 IEA) admissibility.

12. Consolidated Landmark Judgments

The Poulterers' Case, (1611) 9 Co Rep 55b. Foundational English case. The agreement itself is the offence.
Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883. Indira Gandhi assassination. Conspiracy inferred from circumstantial evidence.
State of Tamil Nadu v. Nalini, (1999) 5 SCC 253. Rajiv Gandhi assassination. Comprehensive framework for proof of conspiracy.
Yash Pal Mittal v. State of Punjab, (1977) 4 SCC 540. Conspiracy as a continuing offence. Circumstantial proof.
Ajay Aggarwal v. Union of India, (1993) 3 SCC 609. Later joiners liable for the entire conspiracy. Extra territorial jurisdiction.
Firozuddin Basheeruddin v. State of Kerala, (2001) 7 SCC 596. Association not enough. Connection to the criminal design required.
Kehar Singh v. State (through a series of cases). Application of conspiracy in national security context.
Chennadi Jalapathi Reddy v. Baddam Pratapa Reddy, (2019) 14 SCC 220. Modern statement of the ingredients of Section 120A IPC (now Section 61 BNS).
R. v. Duguid, (1906) 21 Cox CC 200. English case on the requirement of two guilty minds. Where all others are acquitted, one alone cannot be convicted.
Ram Narain Poply v. Central Bureau of Investigation, (2003) 3 SCC 641. Application of conspiracy to economic offences.
Mohan Singh v. State of Bihar, AIR 2011 SC 3103. Modern reiteration of the Section 10 IEA (now Section 8 BSA) framework for admission of co-conspirator statements.
K. Hashim v. State of Tamil Nadu, (2005) 1 SCC 237. Conspiracy in terrorism cases. The particular difficulties of proof.

Frequently Asked Questions

What is Section 61 BNS?

Section 61 of the Bharatiya Nyaya Sanhita, 2023, defines and punishes criminal conspiracy. Section 61(1) provides that when two or more persons agree to do or cause to be done an illegal act, or a legal act by illegal means, that agreement is a criminal conspiracy. Section 61(2) provides the punishment. It replaces Sections 120A and 120B IPC, added by the Criminal Law (Amendment) Act, 1913.

What are the ingredients of criminal conspiracy?

Four ingredients: (i) two or more persons; (ii) an agreement between them; (iii) to do or cause to be done; (iv) an illegal act, or an act which is not illegal by illegal means. Where the agreement is to commit an offence, the offence of conspiracy is complete on the agreement alone. Where the agreement is to do a legal act by illegal means, an overt act in pursuance is also required.

Is a mere agreement enough for criminal conspiracy?

Yes, provided the agreement is to commit an offence. Once two or more persons agree to commit an offence (murder, theft, forgery, kidnapping, etc.), the offence of conspiracy is complete on the agreement alone. No overt act beyond the agreement is required. This is the classical rule of the Poulterers' Case (1611), retained in Indian law.

How is conspiracy proved when it is done in secret?

By circumstantial evidence. Direct evidence of a conspiracy is rarely available. Section 8 of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 10 IEA), makes anything said, done or written by one conspirator in reference to their common intention admissible against all the others. Prosecutions rely on the chain of conduct, meetings, communications, and the sequence of events. State of Tamil Nadu v Nalini (1999) is the leading modern authority.

What is the difference between conspiracy and common intention?

Conspiracy under Section 61 BNS is a distinct substantive offence: the agreement itself is enough. Common intention under Section 3(5) BNS is a general doctrine of joint liability that attaches to the criminal act done at the scene. Conspiracy does not require participation in the criminal act; common intention does. Conspiracy may be joined by a person far from the scene; common intention requires presence in some capacity.

Can a person be convicted of conspiracy if all other alleged conspirators are acquitted?

Generally no, since conspiracy requires two guilty minds. Where all other alleged conspirators are acquitted, one alone cannot be convicted of conspiracy with them. R v Duguid, (1906) 21 Cox CC 200, is the classical authority. But if the conspiracy was with unnamed or unidentified persons, or persons who could not be located, a single person may still be convicted.