Criminal Conspiracy (Sections 120A–120B IPC / Section 61 BNS)

Section 61 of the Bharatiya Nyaya Sanhita, 2023 (BNS) — re-enacting Sections 120A and 120B of the Indian Penal Code, 1860 (IPC) — codifies the substantive offence of criminal conspiracy. The agreement itself is the offence: where two or more persons agree to do, or cause to be done, an illegal act, or a legal act by illegal means, the conspiracy is complete on the moment of agreement. The doctrine has been heavily-litigated in the modern era — assassinations, terrorist acts, large financial frauds — and the architecture of Section 61 BNS is one of the inchoate offences carried into the Sanhita without substantive change.

This chapter — part of our wider IPC and BNS notes series — sets out the history of the conspiracy offence in Indian law, the elements of Section 61(1) BNS, the punishment scheme under Section 61(2) BNS, the proviso that requires an overt act for non-cognizable offences, the distinction from abetment by conspiracy under Section 45(b) BNS, and the evidentiary doctrine of co-conspirator statements under Section 10 of the Bharatiya Sakshya Adhiniyam, 2023.

Brief history — pre-1913 and the 1913 reform

The IPC of 1860 did not contain a general substantive offence of criminal conspiracy. The only specific conspiracy offence was conspiracy to wage war against the Government of India under Section 121A IPC. Otherwise, conspiracy operated only as one of the three modes of abetment under Section 107(2) IPC — abetment by engaging in a conspiracy, where an act or illegal omission took place in pursuance of the conspiracy. The agreement alone was not an offence.

The Criminal Law Amendment Act, 1913 inserted Sections 120A and 120B IPC. The new substantive offence of criminal conspiracy did not require any overt act for offences punishable with death, imprisonment for life or rigorous imprisonment of two years or upwards. The agreement was the offence. The reform was modelled on the English common-law offence of conspiracy. The architecture has survived intact for over a century, and Section 61 BNS reproduces the 1913 structure without substantive change. The transition from IPC to BNS preserves the distinction between abetment by conspiracy (Section 45(b) BNS) and substantive criminal conspiracy (Section 61 BNS); the chapter on the wider abetment doctrine sets out the abetment side of the distinction in detail, and the wider transition story is summarised in our introduction chapter.

Section 61(1) BNS — the definition

Section 61(1) BNS reproduces 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. The proviso says 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. The Explanation provides that it is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

Three elements must be made out. First, an agreement between two or more persons. The agreement may be express or implied; it may be inferred from circumstances. Second, the object of the agreement must be either to do an illegal act or to do a legal act by illegal means. The word "illegal" is defined in Section 2(15) BNS — examined in our chapter on the general definitions of Section 2 BNS — as including everything which is an offence, or which is prohibited by law, or which furnishes ground for civil action. Third, where the agreement is to commit an offence, no overt act is required; where it is not to commit an offence, an overt act is required by the proviso.

Agreement as the offence — the central proposition

The Supreme Court in Major E. G. Barsay v. State of Bombay, AIR 1961 SC 1762, set out the central proposition: the gist of the offence of criminal conspiracy is the bare agreement. The agreement need not be reduced to writing or even to express words; it may be inferred from acts and circumstances. There need not be a precise time at which the conspiracy is formed; conspiracy is a continuing offence, and a person joining a continuing conspiracy at any stage becomes a conspirator from that point onwards. The Court held that even if a person joins a conspiracy at a later stage, with knowledge of its object, he is liable as a conspirator from the moment of joining.

The Court has also held that direct evidence of the agreement is rare; conspiracies are hatched in secret, and the prosecution must usually establish them by circumstantial evidence. In Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883 — the prosecution arising out of the assassination of the former Prime Minister Indira Gandhi — the Court explained the framework. The conspiracy must be inferred from the surrounding facts, the meetings of the accused, the previously expressed views, and the chain of circumstances. The framework draws naturally on the doctrine of common intention examined in our chapter on common intention vs common object, although the two doctrines operate at different points in the criminal-law structure. The inference must be the only reasonable inference open on the evidence; if other inferences are reasonably possible, the conspiracy is not made out.

The non-cognizable proviso

The proviso to Section 61(1) BNS is doctrinally significant. It requires an overt act for agreements that are not to commit an offence. The reason is that a bare agreement to do something not amounting to an offence — for example, an agreement to do a legal act by illegal means that does not itself constitute an offence — is a thin basis for criminal liability without further conduct. The proviso is a safeguard against criminalising mere intention or conversation; for non-offence agreements, there must be at least one act in pursuance of the agreement before the offence is complete.

Where the agreement is to commit an offence — even a minor one — the proviso does not apply. The agreement itself is the offence under Section 61(1) BNS, and no overt act is required. The asymmetry is deliberate: the law treats agreements to commit substantive offences with greater suspicion than agreements to do other illegal acts.

Section 61(2) BNS — punishment

Section 61(2) BNS reproduces Section 120B IPC and supplies a graduated punishment scheme. 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 the Sanhita for the punishment of such 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 two-tier scheme reflects the gravity differential. For conspiracies to commit serious offences, the conspirator is liable to the same punishment as if he had abetted the offence — often, the same as the principal offender. For conspiracies to commit minor offences, the punishment is capped at six months or fine.

Distinction from abetment by conspiracy

The distinction between abetment by conspiracy under Section 45(b) BNS and substantive criminal conspiracy under Section 61 BNS is one of the most heavily-tested topics in judicial-services examinations. Three differences matter.

First, abetment by conspiracy under Section 45(b) BNS requires an act or illegal omission in pursuance of the conspiracy and in order to the doing of the thing abetted. The agreement alone is not enough. Substantive conspiracy under Section 61(1) BNS makes the agreement itself the offence, where the conspiracy is to commit an offence; no overt act is required.

Second, abetment by conspiracy is derivative — it presupposes a primary offence that the abettor is helping to bring about. Substantive conspiracy is independent — it is itself the offence, even if the conspired act is never carried out. The Court in State of HP v. Krishan Lal Pradhan, AIR 1987 SC 773, held that the offence of conspiracy is committed when the agreement is reached; it is immaterial whether the conspiracy is later carried out.

Third, the punishment differs. Abetment is punished under Section 48 BNS — typically the same as the substantive offence if it is committed. Substantive conspiracy is punished under Section 61(2) BNS on the two-tier scheme. Where both offences are made out, the prosecution may charge alternatively, and the Court may convict on whichever is established on the evidence.

Section 10 BSA — the co-conspirator rule

The evidentiary engine of conspiracy prosecutions is Section 10 of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 10 of the Indian Evidence Act, 1872). Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence, anything said, done or written by any one of them in reference to the 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, both for the purpose of proving the existence of the conspiracy and for showing that any such person was a party to it.

The Supreme Court in Mohd. Khalid v. State of WB, (2002) 7 SCC 334, set out the operation of the rule. Three conditions must be satisfied. First, there must be reasonable ground to believe the conspiracy. Second, the act or statement must be by one of the conspirators. Third, the act or statement must be in reference to the common intention. Acts and statements outside this temporal and conceptual frame are not admissible against the other conspirators under Section 10 BSA. The Court emphasised that the section is a departure from the general rule that one person cannot be bound by another's acts; it must therefore be applied strictly.

Conspiracy as a continuing offence

The Supreme Court has consistently described criminal conspiracy as a "continuing offence". The conspiracy is formed at a particular moment, but it persists for as long as the agreement remains alive and the conspirators are working towards its objects. The doctrine has three operational consequences. First, a person who joins the conspiracy at a later stage, with knowledge of its object, becomes a conspirator from the moment of joining; he is not a conspirator for the period before. Second, the conspiracy ends when the object is achieved, when the conspirators abandon it, or when the agreement is otherwise dissolved. Third, for limitation purposes under Section 519 BNSS (formerly Section 468 CrPC), the period of limitation runs from the last act done in pursuance of the conspiracy, not from the formation of the agreement.

The continuing-offence characterisation matters most in cases of complex commercial frauds and in long-running terrorist conspiracies, where the agreement may have been formed years before the substantive act — including offences against the State examined in our chapter on offences against the State under Sections 147 to 151 BNS. The framework also informs the practice of charging conspiracy alongside the substantive offence; where the conspiracy and the offence are charged together, the prosecution may rely on Section 10 BSA to bring in a wider range of evidence than would be admissible against the principal offender alone, and the inferential proof of the agreement is tested separately from the proof of the substantive offence.

Substantive offences alongside conspiracy charges

In modern practice, conspiracy under Section 61 BNS is rarely charged alone. It is almost always charged alongside the substantive offence the conspirators agreed to commit — murder under Section 103 BNS, dacoity under Section 310 BNS, cheating under Section 318 BNS, a terrorist act under Section 113 BNS, organised crime under Section 111 BNS. The combination has procedural advantages for the prosecution: it widens the range of admissible evidence under Section 10 BSA, it permits the joinder of distant acts under Section 244 BNSS, and it allows the Court to convict on the conspiracy even where the substantive offence is not made out against every conspirator.

The combination has corresponding risks. The Court has cautioned that conspiracy charges should not be deployed casually as a procedural shortcut. The agreement must be made out on its own evidence; the conspiracy charge cannot rest on the substantive offence alone, and it cannot be inferred from mere association. The Court in Rajiv Kumar v. State of UP, (2017) 8 SCC 791, reiterated that mere knowledge of, or even discussion about, an offence is not the same as agreement; the prosecution must establish a meeting of minds, however brief.

The Nalini framework — large-scale conspiracies

The Supreme Court in State of Tamil Nadu v. Nalini, (1999) 5 SCC 253 — the prosecution arising out of the assassination of the former Prime Minister Rajiv Gandhi — set out the framework for large conspiracies. The Court held that there can be a conspiracy with multiple objects, and the conspirators may be assigned different roles. Each conspirator is liable for the entire conspiracy, even if his role is limited to a specific function. The distinction between the conspirator who plans, the one who finances, the one who recruits, the one who carries out — these are operationally significant but doctrinally uniform; all are conspirators.

The Court in Nalini also addressed the fluctuating membership problem. A person who joins the conspiracy late is not liable for acts done before he joined. A person who leaves the conspiracy is liable for acts done up to the point of his leaving. The operative test is participation; the conspiracy may continue, but each conspirator's liability is bounded by the period of his participation. The framework matters most in modern cases involving terrorism, where the substantive offence typically goes hand in hand with conspiracy charges under Section 61 BNS, and where the prosecution must layer the conspiracy proof carefully against the proof of the substantive offence.

Sanction under Section 218 BNSS

The procedural overlay on conspiracy prosecutions includes a sanction requirement. Section 218 BNSS (formerly Section 196 CrPC) requires the previous sanction of the Central or State Government for the trial of certain conspiracy offences — particularly those involving offences against the State, where the conspiracy charge could otherwise be deployed at the lower judicial level without the executive's review. The sanction operates as a gatekeeping mechanism, preventing the casual escalation of disputes into conspiracy prosecutions.

Conspiracy and the criminal-justice system reforms

The 2024 commencement of the BNS, BNSS and BSA together has tightened the conspiracy framework in two ways. First, the BSA's modernised treatment of electronic records has transformed the evidence base. Modern conspiracy investigations rely heavily on call-detail records, location data, encrypted messaging, and metadata; the BSA's express recognition of electronic records as primary evidence under Section 61 BSA, and the streamlined certificate procedure under Section 63 BSA, have made this evidence more readily admissible than under the IEA. Second, the BNSS's updated procedural framework — including expanded provisions for searches, seizures and electronic-data preservation under Sections 94 to 109 BNSS — supports the investigative work that conspiracy prosecutions need.

The architecture is therefore tighter than it was. A conspiracy investigation that begins with an FIR registered after 1 July 2024 will charge under Section 61 BNS, will follow BNSS procedure, and will adduce evidence governed by BSA. The orthodox principles of Kehar Singh and Nalini survive within this new framework, but the evidentiary toolkit available to the prosecution has expanded. Practitioners must update their evidentiary checklists accordingly.

Defences and exit from conspiracy

The Indian law contains no statutory defence of withdrawal from conspiracy parallel to the renunciation defence available in some American jurisdictions. Once a person has joined a conspiracy, he is liable for it; he cannot escape liability merely by withdrawing before the substantive offence is committed. The position is more rigorous than the position under the law of attempt — examined in the next chapter — where abandonment before the act is sometimes available as a defence.

The principal defences to a conspiracy charge are evidentiary: that the prosecution has not made out the agreement on the balance of evidence, that the alleged conspirator was not in fact a party to the agreement, that the acts or statements relied on are not in reference to the common intention within Section 10 BSA, or that the inference of conspiracy is not the only reasonable inference open on the evidence. Where the conspiracy is alleged from circumstantial evidence alone, the standard is high — the chain of circumstances must be incompatible with the innocence of the accused. The Court has applied the standard rigorously: in a number of recent acquittals, conspiracy charges have been set aside where the prosecution case rested on inferences open to more than one reasonable interpretation. The acquittals serve as a discipline on prosecutors: a charge of conspiracy must be supported by evidence that points unerringly to the agreement, not by suspicion or by association alone. The protections operate in addition to the ordinary protections available to all accused persons, and they are particularly important in conspiracy cases because the agreement is typically not the subject of direct proof.

A further defence available in some cases is that the alleged conspiracy is in fact a single conduct charged twice — once as conspiracy under Section 61 BNS and once as the substantive offence the conspirators agreed to commit. The principle against double jeopardy under Article 20(2) of the Constitution and under Section 9 BNS does not bar conviction on both, but it does bar duplication of punishment for the same conduct. The Court will calibrate the sentence so that the conspirator is not punished twice over.

Strategic note for the practitioner and aspirant

Three propositions to take forward. First, criminal conspiracy under Section 61 BNS is a substantive inchoate offence; the agreement itself is the offence, where the agreement is to commit an offence. The proviso that requires an overt act applies only to agreements that are not to commit an offence. Second, the distinction from abetment by conspiracy under Section 45(b) BNS lies in the requirement of an overt act — Section 61 BNS does not require one for offence-agreements; Section 45(b) BNS always does. Third, conspiracy is typically established by circumstantial evidence, and Section 10 BSA is the evidentiary engine — but the section is a strict departure from the general rule and must be applied within its temporal and conceptual limits.

The next chapter takes up the third inchoate offence — the law of attempt under Section 62 BNS — and examines the doctrines of preparation, attempt and the locus poenitentiae. A section-by-section comparison of the conspiracy provisions is collected in our IPC-to-BNS comparative table.

Frequently asked questions

Is an overt act required to make out criminal conspiracy under Section 61 BNS?

Not where the conspiracy is to commit an offence. Section 61(1) BNS reproduces Section 120A IPC: the agreement to commit an offence is itself the offence, and no overt act is required. The proviso requires an overt act only for agreements that are not to commit an offence — agreements to do an illegal act other than an offence, or a legal act by illegal means. The asymmetry reflects the law's view that agreements to commit substantive offences deserve criminalisation at the agreement stage, while other agreements need at least one act in furtherance before the offence is complete.

How does criminal conspiracy under Section 61 BNS differ from abetment by conspiracy under Section 45(b) BNS?

Three differences. First, abetment by conspiracy under Section 45(b) BNS requires an act or illegal omission in pursuance of the conspiracy and in order to the doing of the thing abetted; the agreement alone is not enough. Substantive conspiracy under Section 61(1) BNS makes the agreement itself the offence for offence-agreements. Second, abetment is derivative — it presupposes a primary offence; substantive conspiracy is independent — it stands even if the conspired act is never carried out. Third, the punishment differs: abetment under Section 48 BNS, conspiracy under the two-tier scheme of Section 61(2) BNS.

What is the evidentiary rule under Section 10 BSA in conspiracy cases?

Section 10 BSA — formerly Section 10 of the Indian Evidence Act, 1872 — provides that, where there is reasonable ground to believe two or more persons have conspired to commit an offence, anything said, done or written by any one of them in reference to the common intention is relevant against each of the others, both to prove the conspiracy and to show that the person was a party to it. The Supreme Court in Mohd. Khalid v. State of WB held that three conditions must be satisfied: reasonable ground to believe in the conspiracy; the act or statement by a conspirator; and the act or statement in reference to the common intention. Acts outside this frame are not admissible under Section 10 BSA.

Can a person who joins a conspiracy late be liable for earlier acts?

No. The Supreme Court in State of Tamil Nadu v. Nalini, (1999) 5 SCC 253, held that the conspirator's liability is bounded by the period of his participation. A person who joins late is liable from the moment of joining, not for acts done before. A person who leaves is liable for acts up to the point of his leaving. The conspiracy may continue beyond his participation, but his liability does not. The architecture is consistent with the general principle that criminal liability tracks the accused's actual involvement.

When was substantive criminal conspiracy added to the IPC?

By the Criminal Law Amendment Act, 1913, which inserted Sections 120A and 120B IPC. Before 1913, conspiracy was an offence in Indian law only in two narrow forms: as conspiracy to wage war against the Government of India under Section 121A IPC, and as one of the modes of abetment under Section 107(2) IPC. The 1913 reform created the modern substantive offence of criminal conspiracy. Section 61 BNS reproduces the 1913 architecture without substantive change.

Is sanction required to prosecute for criminal conspiracy?

Section 218 BNSS — formerly Section 196 CrPC — requires the previous sanction of the Central or State Government for the trial of certain conspiracy offences, particularly those involving offences against the State and offences punishable with less than two years' imprisonment. The sanction operates as a gatekeeping mechanism, ensuring executive review before disputes are escalated into conspiracy prosecutions. Where sanction is required and not obtained, the prosecution is liable to be quashed.