Section 61(2) of the Bharatiya Nyaya Sanhita (BNS)

Section 61(2) of the Bharatiya Nyaya Sanhita (BNS), 2023 deals with the punishment for criminal conspiracy:

As described, criminal conspiracy is considered an inchoate offence. In this sense, a criminal conspiracy is said to arise when two or more persons come together to affray or to commit any unlawful act. The definition however serves to widen the focus to not only connect with criminal activities but also to associate with any unlawful acts concerning say civil wrongs or any other legal prohibitions.

This suggests that any non-punishable action according to BNS may also qualify as a criminal conspiracy. Take for instance, suicide, which cannot be classed as a crime within the Indian Penal Code and hence cannot be branded as an offence. Given that suicide violates the law, the notion of criminal conspiracy applies here.

Additionally, in the cases of conspiracy to commit an offence, the parties need only agree to commit the offence. In other situations, however, a simple agreement to commit a crime will not suffice. There must be some action taken to help carry out the offence. Therefore, when it comes to committing suicide, an agreement by itself is not enough. The act of suicide should l also be committed along with the agreement made.

What is Criminal Conspiracy?

Section 61

(1) In the event of one or more individuals coming together for the purpose of executing or directing the execution of— 

(a) a criminal act; or

(b) a lawful act by means which are unlawful; the agreement is termed criminal conspiracy. It is emphasised that an agreement to engage in criminal conduct does not amount to conspiracy unless one or more of the co-conspirators takes an overt act beyond mere agreement towards the completion of the offence.

Justification: There is not any difference whether the illegal purpose of the contract is the main aim of the contract or it is one of the incidental purposes of the contract.

(2) Any person engaged in furtherance of a felony,

If the plot itself is not punishable under the provisions of this Sanhita, a person committing a crime which is punishable with death or imprisonment for life or with imprisonment for a term of two years or more which is rigrous, shall be treated as if he has abetted in the commission of that crime.

(b) other than the conspiracy to commit an offence referred to in the above provisions, shall be punished with fine or imprisonment for a term of not more than six months or with both.

Section 61(2)

Section 61(2) of the BNS, 2023 applies to any person engaging in a criminal conspiracy.

1. In case of the absence of this Sanhita, an individual who makes an attempt to commit an offence that is punishable by death or life sentence or rigorous imprisonment for two years or more shall be dealt with as if he had also helped to commit that offence.

2. Apart from the criminal conspiracy, an offence with a punishment in the above cases has a jail term not exceeding six months or a fine or to both.

Ingredients of Criminal Conspiracy under Section 61(2) of BNS

Below are the components of this offence

(1) There is common intention of the parties to an offence.

(2) Such Common intention should be

•  to achieve an unlawful objective or
• by unlawful assistance achieve an object which is not illegal per se.

The meeting of minds of two or more persons for the purpose of committing an unlawful act or for an act which is not lawful is an essential ingredient of any the conspiracy.

Agreement between two or more person are necessary

The main element of the crime in question is that two or more individuals agree to do something illegal. When two people are charged with conspiracy, the court has to assess whether they are pursuing the same illegal objective separately or whether there is an invitation to regard them as having agreed to pursue the illegal objective. In the former, they are not included as conspirators, but in the later, they are included as conspirators. 

A mere agreement is not sufficient to find someone guilty of conspiracy. It is not necessary to buttress the notion with anything that would support the non-verbal picture of communication. The illegal act does not necessarily substantiate the connect between the participants on the basis of mere imagination. Conspiracy is a continuous crime which is committed until executed or abandoned or thwarted for some cause. During its subsistence whenever any one of the conspirators does an act or series of acts, he would be held guilty under section 61 (2) of BNS, 2023.

Section 61(2) BNS versus 120-B of IPC

The Indian Penal Code (IPC), Section 120-B dealt with the offence of criminal conspiracy before passing of Bharatiya Nyaya Sanhita, 2023. 

Not much change is made in respect of the offence category as of now. The provisions for the crime of conspiracy to commit a crime is the same in both.

Bail Provision for Section 61(2) of BNS, 2023

New Criminal Procedure Code provides the following anticipatory bail and regular bail provisions: 

Section 61(2) (a) of BNS, 2023

(a) Charge: Commission of offence by criminal conspiracy, which is punishable by a term of imprisonment not exceeding 2 years hard labour, life in prison or death. 

(b) Punishments: Similar to the assistance in and out of the commission and conspiracy of the target crime. 

(C) Recognizable or Not Recognizable 

(D) Whether Bail Is Granted or Not

Section 61(2)(b) of BNS, 2023

(a) Offence: Any other criminal conspiracy

(b) Punishment: Imprisonment for 6 months or fine or both.

(c) Non-Cognizable

(d) Bailable

Previous Sanction

Criminal conspiracy proceedings may be started with approval under BNSS Section 217(3). It says as follows:

“(3) No Court shall take cognisance of the offence of any criminal conspiracy punishable under sub-section (2) of section 61 of the Bharatiya Nyaya Sanhita, 2023, other than a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings.

Conclusion

The Bharatiya Nyaya Sanhita, 2023, Section 61(2), is an exhaustive legal provision on criminal conspiracy in India. It explains the jurisprudence on criminal agreements and the requirement of an overt act in furtherance of the agreement to establish conspiracy. 

Such advances in articulation of punishment and its procedural requirements are contained in the new law, but the provisions are still similar to the old Section 120-B of the IPC. These complexity must be appreciated by anyone who is a party to a legal action involving any form of conspiracy as their understanding goes beyond the general layman’s knowledge of the law of conspiracy.

Frequently Asked Questions on Section 61(2) of the Bharatiya Nyaya Sanhita (BNS)

Q1. What is Section 61(2) of the Bharatiya Nyaya Sanhita (BNS), 2023?

Ans1. Section 61(2) of the Bharatiya Nyaya Sanhita (BNS), 2023 deals with criminal conspiracy. It states that a person involved in furtherance of a felony or an agreement to commit an unlawful act can be punished based on the crime committed or attempted.

Q2. What are the ingredients of criminal conspiracy under Section 61(2) of the BNS?

Ans2. The key components of criminal conspiracy under Section 61(2) of the BNS are a common intention among two or more individuals to achieve an unlawful objective, either through illegal means or unlawful assistance in a legal act.

Q3. How does Section 61(2) of BNS differ from Section 120-B of the IPC?

Ans3. Section 61(2) of the BNS, 2023 and Section 120-B of the IPC are similar in handling criminal conspiracy. However, the BNS, 2023 replaces the IPC and retains the core definition and punishments for conspiracy-related offences.

Q4. What are the punishments under Section 61(2) of the BNS, 2023 for criminal conspiracy?

Ans4. The punishments under Section 61(2) of the BNS, 2023 depend on the severity of the offence. If the conspiracy is related to a crime punishable with death or life imprisonment, the person is punished accordingly. For other conspiracies, a fine or imprisonment for up to six months is applicable.

Q5. Is criminal conspiracy a continuous crime under Section 61(2) of the BNS, 2023?

Ans5. Yes, criminal conspiracy is considered a continuous crime under Section 61(2) of the BNS, 2023 and remains in effect until it is executed, abandoned or thwarted by external factors.

Q6. What is the legal definition of criminal conspiracy according to Section 61 of BNS, 2023?

Ans6. Criminal conspiracy under Section 61 of BNS, 2023 is defined as an agreement between two or more people to commit a criminal act or a lawful act by unlawful means. For a conspiracy charge, an overt act beyond the mere agreement must occur.

Q7. What are the bail provisions for offences under Section 61(2) of the BNS, 2023?

Ans7. For offences punishable with life imprisonment or more severe sentences, anticipatory bail and regular bail may be challenging. For lesser offences like six months of imprisonment or fines, the offence is bailable under Section 61(2)(b) of the BNS.

Q8. What role does the “meeting of minds” play in criminal conspiracy under Section 61(2) of BNS?

Ans8. The “meeting of minds” is crucial for criminal conspiracy under Section 61(2) of BNS. It implies that two or more individuals agree on an unlawful goal, either explicitly or implicitly, to execute a crime or an unlawful act.

Q9. What action is necessary beyond the agreement to commit a crime under Section 61(2) of BNS?

Ans9. Beyond the agreement, at least one conspirator must take an overt action towards executing the crime for it to qualify as a criminal conspiracy under Section 61(2) of BNS, 2023.

Q10. What is the significance of “previous sanction” in prosecuting criminal conspiracy under Section 61(2) of BNS?

Ans10. The “previous sanction” under Section 217(3) of the BNS requires written consent from the State Government or District Magistrate before prosecuting a conspiracy offence, except for conspiracies punishable with death, life imprisonment or rigorous imprisonment.

Q11.What was the old IPC code for Section 61(B) of BNS 2023?

Ans11. In the Indian Penal Code, criminal conspiracy as an agreement between two or more people to commit an illegal act or use illegal means to perform a legal act was covered in Section 120B IPC.