Section 61 BNS – Criminal Conspiracy: Comprehensive Analysis with Section 120A & 120B IPC, Case Laws, Punishment & ED/PMLA Implications
Introduction
Criminal conspiracy occupies a distinctive position in Indian criminal law. Unlike most offences, the law punishes the agreement to commit a crime, not merely the completed act. The offence arises once two or more persons agree to pursue an illegal act or a lawful act by illegal means.
With the enactment of the Bharatiya Nyaya Sanhita, 2023 (BNS) on 1 July 2024, the Indian Penal Code, 1860 (IPC) stands replaced. The earlier Sections 120A and 120B IPC, which defined and punished criminal conspiracy, now appear in a consolidated form under Section 61 BNS.
Criminal conspiracy remains one of the most frequently invoked provisions in Indian criminal prosecutions. Investigators rely on it to address organised crime, corruption, corporate fraud, and money-laundering schemes where multiple actors coordinate the offence.
This article examines Section 61 BNS in comparison with Sections 120A and 120B IPC. It analyses the ingredients of criminal conspiracy, the punishment framework, leading Supreme Court judgments, and the emerging role of conspiracy charges in ED and PMLA proceedings.
For a complete comparative table of IPC and BNS sections, readers may also refer to the comparative section charts on this blog.
Section 61 BNS and 120A & B IPC Comparison
Below is the comparative table of the bare text of both the sections:
| Bhartiya Nyaya Sanhita, 2023 | Indian Penal Code, 1860 |
|---|---|
| Applicable from 01.07.2024 | Applicable upto 30.06.2024 |
| 61. Criminal Conspiracy (1) When two or more persons agree with the common object 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. Explanation.—It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. (2) Whoever is a party to a criminal conspiracy,– (a) 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; (b) 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. | 120A. Definition of criminal conspiracy.—When two or more persons agree to do, or cause to be done,— (1) an illegal act, or (2) 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. Explanation.—It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. 120B. Punishment of criminal conspiracy.— (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 1 [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) 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.] |
Thus, it is clear from above table that under the Indian Penal Code, the law on criminal conspiracy was contained in two separate provisions: Section 120A IPC provided the definition of criminal conspiracy, while Section 120B IPC prescribed the punishment therefor. The Bharatiya Nyaya Sanhita has consolidated both the definition and punishment within a single provision — Section 61 BNS. Section 61(1) corresponds to the erstwhile Section 120A (definition), while Section 61(2) corresponds to the erstwhile Section 120B (punishment).
Comparative Table of Changes
| Aspect | Sections 120A & 120B IPC | Section 61 BNS, 2023 |
|---|---|---|
| Provision Structure | Definition and punishment in two separate sections (120A & 120B) | Consolidated into one section — Section 61(1) for definition and Section 61(2) for punishment |
| Definition | “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…” | “When two or more persons agree with the common object to do, or cause to be done — (a) an illegal act, or (b) an act which is not illegal by illegal means…” |
| Key Modification | No express mention of “common object” | Words “with the common object” have been inserted |
| Proviso | No agreement, other than to commit an offence, amounts to criminal conspiracy unless some overt act is done in pursuance thereof | Retained as is |
| Punishment for Serious Offences | Same as if the person had abetted the offence (for offences punishable with death, life imprisonment, or RI for 2 years or more) | Same — no change |
| Punishment for Other Conspiracies | Imprisonment up to 6 months, or fine, or both | Same — no change |
| Effective Date | Applicable to offences committed before July 1, 2024 | Applicable to offences committed on or after July 1, 2024 |
The Significance of “Common Object”
The most notable amendment in Section 61 BNS is the insertion of the phrase “with the common object”. Under the IPC, the definition in Section 120A merely required an agreement between two or more persons to do an illegal act. The BNS now expressly mandates that the agreement must be coupled with a common object. While judicial interpretation under the IPC had already recognised that a shared criminal intent or consensus ad idem was essential for proving conspiracy, the inclusion of this phrase in the statute itself is a codification of settled judicial principles. This may also necessitate courts to distinguish more carefully between the concepts of “common object” in criminal conspiracy under Section 61 BNS and “common object” in unlawful assembly under Section 190 BNS (erstwhile Section 149 IPC).
For pending cases registered before July 1, 2024, the prosecution continues under Sections 120A and 120B IPC, as the BNS has prospective operation. Practitioners must therefore be conversant with both the old and new regimes during this transitional phase. For practical guidance on navigating the new procedural law, see also quashing of criminal proceedings under Section 528 BNSS.
Ingredients of the Offence of Criminal Conspiracy
The essential ingredients of the offence of criminal conspiracy, whether under the erstwhile Section 120A read with 120B IPC or the present Section 61 BNS, rests on the following as distilled from statutory language and Supreme Court jurisprudence:
First: An Agreement Between Two or More Persons.
The foundation of criminal conspiracy is the existence of an agreement. It is the agreement – not the execution of the crime – that constitutes the gist of the offence. The agreement may be express or implied, and may be inferred from the conduct and circumstances of the case. As the Supreme Court noted in R. Venkatkrishnan v. CBI, the essential ingredients include:
- (i) an agreement between two or more persons;
- (ii) the agreement must relate to doing or causing to be done an illegal act or a legal act by illegal means;
- (iii) the agreement may be express or implied, or partly express and partly implied;
- (iv) as soon as the agreement is made, the offence of conspiracy arises; and
- (v) the offence continues to be committed so long as the combination persists.
Second: Common Object to Do an Illegal Act, or a Legal Act by Illegal Means.
The object of the agreement must be either (a) to do an illegal act, or (b) to do a legal act by illegal means. Under the BNS, the additional requirement of a “common object” has been expressly incorporated. Importantly, “illegal” is not limited to criminal offences; as per Section 43 of the IPC (now corresponding provision in BNS), it extends to acts forbidden by law or acts that furnish ground for civil action.
Third: Meeting of Minds (Consensus Ad Idem).
Mere knowledge or acquaintance with the conspirators does not amount to conspiracy. There must be a meeting of minds – a mutual understanding and shared criminal intent. In State of Tamil Nadu v. Nalini (1999), the Supreme Court held that mere association or acquaintance with the main accused, or even knowledge of the conspiracy, does not by itself make a person a conspirator. Active participation in the agreement is indispensable.
Fourth: Overt Act (Conditional Requirement).
An overt act in furtherance of the conspiracy is not required when the object of the conspiracy is the commission of an offence. However, when the agreement is to do a legal act by illegal means, the proviso to Section 61(1) BNS [erstwhile Section 120A IPC] mandates that some act, besides the agreement, must be done by one or more parties in pursuance thereof.
Fifth: Circumstantial Evidence.
Given the inherently clandestine nature of conspiracy, it is rarely proved by direct evidence. Courts have consistently held that conspiracy may be established through circumstantial evidence — including the conduct of the accused before, during, and after the alleged offence. This was emphatically reiterated in State (NCT of Delhi) v. Navjot Sandhu (2005), the Parliament Attack Case.
Punishment for Criminal Conspiracy under Section 61(2) BNS
Section 61(2) of the BNS, which directly corresponds to the erstwhile Section 120B IPC, provides a two-tier punishment framework based on the gravity of the intended offence:
Category (a) — Conspiracy to Commit Serious Offences:
Where the conspiracy is to commit an offence punishable with death, imprisonment for life, or rigorous imprisonment for a term of two years or upwards, the conspirator shall be punished in the same manner as if he had abetted such offence – provided no express provision is made elsewhere in the Sanhita (or Code) for the punishment of such conspiracy. This means the conspirator faces the same maximum punishment as the abettor of the substantive offence.
Category (b) — Conspiracy to Commit Other Offences:
Where the conspiracy is to commit an offence not falling in the first category, the conspirator shall be punished with imprisonment of either description for a term not exceeding six months, or with fine, or with both.
The punishment framework has been retained without any change from the IPC. This structure ensures proportionality. The graver the intended crime, the more severe the punishment for the conspiracy. In practice, criminal conspiracy is most frequently charged alongside the substantive offence (e.g., Section 61 BNS read with Section 103 BNS (murder), or Section 61 read with Section 316 BNS (criminal breach of trust), or Section 61 read with Section 318 BNS (cheating)).
Landmark Case Laws on Ingredients of Criminal Conspiracy
1. Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883
This case arose out of the assassination of Prime Minister Indira Gandhi. The Supreme Court held that criminal conspiracy is rarely established through direct evidence and that circumstantial evidence plays a crucial role. The Court observed that conspiracy can be inferred from the circumstances and conduct of the accused, even if they are not directly linked to the final criminal act. The judgment established that the meeting of minds of two or more persons to do an illegal act is the sine qua non of criminal conspiracy. The Court emphasised that each conspirator need not know the full details of the conspiracy or even be acquainted with all other co-conspirators.
2. State of Tamil Nadu v. Nalini & Ors., (1999) 5 SCC 253
Popularly known as the Rajiv Gandhi Assassination Case, this remains the most significant pronouncement on the ingredients of criminal conspiracy. The Supreme Court summarised the essential elements of conspiracy as follows: (i) an agreement between two or more persons; (ii) the agreement must be to do or cause to be done an illegal act or a legal act by illegal means; and (iii) an overt act must follow where the conspiracy does not involve the commission of a cognisable offence. Crucially, the Court held that mere association or even knowledge of the conspiracy does not make a person a conspirator — only active participation in the agreement attracts criminal liability.
3. State of Maharashtra v. Som Nath Thapa & Ors., (1996) 4 SCC 659
This case involved military officers and civilians accused of conspiring to steal and sell classified military documents to foreign entities. The Supreme Court drew a critical distinction between mere knowledge of a conspiracy and active participation in it. The Court held that a person can be convicted of conspiracy if there exists prima facie evidence of their involvement in the agreement to commit the illegal act. Mere knowledge, without active participation or endorsement, is insufficient to sustain a conviction for conspiracy.
4. R. Venkatkrishnan v. CBI, (2009) 11 SCC 737
In this case, the Supreme Court provided a comprehensive enumeration of the essential ingredients of criminal conspiracy. The Court held that: (i) there must be an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done an illegal act or a legal act by illegal means; (iii) the agreement may be express or implied; (iv) the offence is complete as soon as the agreement is reached; and (v) the offence continues to be committed so long as the combination persists. This judgment is frequently cited as the definitive statement on the constituent elements of criminal conspiracy under Indian law.
5. Sudhir Shantilal Mehta v. CBI, (2009) 8 SCC 1
This case clarified the distinction between mere knowledge or discussion and active participation in a criminal conspiracy. The Supreme Court held that the meeting of minds is essential and that mere knowledge of an ongoing conspiracy, or even discussion about it, is not sufficient for convicting someone for criminal conspiracy. The prosecution must demonstrate, either through direct or circumstantial evidence, that the accused had actively agreed to participate in the furtherance of the common criminal object.
Landmark Case Laws on Punishment for Conspiracy
1. Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1 — Conspiracy in Terror Offences
In the 1993 Bombay Blasts Case, the Supreme Court upheld Yakub Memon’s conviction for criminal conspiracy even though he had not physically planted any of the bombs. The Court emphasised that even the smallest role in facilitating a conspiracy attracts criminal liability. All participants in a conspiracy are equally liable, irrespective of the magnitude of their individual roles. The punishment for conspiracy to commit offences resulting in mass casualties was held to be commensurate with the gravity of the substantive offence — in this case, extending to the death penalty.
2. Ram Narayan Popli v. CBI, (2003) 3 SCC 641 — Conspiracy in Bank Fraud / White Collar Crime
In this case, bank officials conspired with businessmen to defraud a bank by disbursing massive loans against non-existent securities. The Supreme Court held that conspiracy, being a clandestine activity, is most commonly established through circumstantial evidence – the consistent behaviour of the conspirators, coupled with the sequence of events, demonstrated the conspiracy to defraud. The Court upheld severe punishment for the conspirators, treating the conspiracy to commit financial fraud with the same seriousness as the substantive offence of cheating and criminal breach of trust.
3. State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 — Conspiracy in Murder / Terror Attack
Known as the Parliament Attack Case, the Supreme Court held that criminal conspiracy is largely a matter of inference, and in cases where direct evidence is unavailable, courts can rely on circumstantial evidence – including the conduct of the accused before, during, and after the offence. The punishment for conspiracy to wage war against the Government of India and to commit murder was the most severe under the law. The case reinforced the principle that each conspirator is liable for every act done by any other conspirator in pursuance of the conspiracy.
4. Parveen @ Sonu v. State of Haryana, (2021) — Conspiracy in Rescue/Escape and Murder
In this case, accused persons in police custody were attacked by accomplices who tried to rescue them, resulting in the murder of a police constable. The Sessions Court and High Court convicted the accused under Section 120B read with Sections 302, 307, and 392 IPC. The Supreme Court, however, acquitted one of the accused (Parveen), holding that the most important ingredient of the offence of conspiracy is an agreement between two or more persons to do an illegal act. The Court held that it is not safe to hold a person guilty under Section 120B solely on the basis of confessions of co-accused, without independent corroborative evidence. The case is a cautionary judgment on the standard of proof required for conviction and the consequential impact on punishment.
5. E.G. Barsay v. State of Bombay, (1961) 3 SCR 862 — Conspiracy in Corruption and Theft of Public Property
In this early landmark case, the Supreme Court observed that criminal conspiracy is an independent offence in which the conspiracy itself constitutes the gist of the crime. A public servant was convicted for conspiracy to commit offences under the Prevention of Corruption Act. The Court held that the punishment for conspiracy mirrors the punishment for the substantive offence of corruption, and the conspirator is to be treated as an abettor. This judgment laid the foundation for the treatment of conspiracy charges in corruption and public fraud cases, which remains relevant today under the corresponding provisions of the BNS.
Criminal Conspiracy in White Collar Crimes
White collar crimes – including fraud, cheating, forgery (Section 336 BNS), criminal breach of trust, and corruption – are inherently conspiratorial in nature. They involve elaborate planning, coordination between multiple actors, and sophisticated execution designed to evade detection. Criminal conspiracy under Section 61 BNS (formerly Section 120B IPC) is therefore the most commonly added charge in white collar criminal prosecutions.
Circumstances and the consistent behaviour
In financial fraud cases, the charge of conspiracy enables the prosecution to rope in not only the principal offender but also the facilitators – including chartered accountants, company secretaries, bank officials, intermediaries, and shell company operators — who actively participated in the agreement to defraud. The Supreme Court in Ram Narayan Popli v. CBI (2003) held that the chain of circumstances and the consistent behaviour of participants can establish the existence of a conspiracy even in the absence of direct evidence of any formal meeting or agreement.
Enhanced Punishment for White Collar Crime
Under the BNS regime, the punishment for conspiracy in white collar crimes is now to be read with the enhanced penalties prescribed under the new law. For instance, the punishment for criminal breach of trust under Section 316 BNS has been increased to five years of imprisonment from the earlier three years under the IPC. Similarly, the punishment for cheating under Section 318(2) BNS has been enhanced to three years from one year under Section 417 IPC, and cheating by impersonation under Section 319(2) BNS carries five years as against three years under the erstwhile Section 419 IPC. When conspiracy is charged with these substantive offences, the conspirator faces the same enhanced punishment as an abettor.
Corporate Fraud
In cases involving corporate fraud, the charge of criminal conspiracy is frequently combined with provisions under special statutes such as the Prevention of Corruption Act, 1988, the Companies Act, 2013, the Securities and Exchange Board of India Act, 1992, and the Prevention of Money Laundering Act, 2002. For those facing arrest in white collar matters, the procedural safeguards under the new criminal laws, including notice under Section 35(3) BNSS, must be carefully attended to.
Criminal Conspiracy in ED Matters and PMLA Proceedings
The intersection of criminal conspiracy with the Prevention of Money Laundering Act, 2002 (PMLA) and proceedings initiated by the Enforcement Directorate (ED) presents one of the most critical and evolving areas of criminal jurisprudence in India. Section 120B of the IPC (now Section 61 BNS) is listed as a scheduled offence under Part A, Paragraph 1 of the Schedule to the PMLA. This listing has significant consequences, as the invocation of PMLA depends on the existence of a “scheduled offence” and “proceeds of crime”.
1 The Pavana Dibbur Judgment: A Watershed Moment
In the landmark case of Pavana Dibbur v. Directorate of Enforcement, 2023 SCC OnLine SC 1586, the Supreme Court (Justices Abhay S. Oka and Pankaj Mithal) held that the offence of criminal conspiracy under Section 120B IPC will become a scheduled offence under the PMLA only if the alleged conspiracy is directed towards committing an offence that is specifically included in the Schedule of the PMLA. In other words, Section 120B IPC cannot be used as a standalone offence to attract prosecution under Section 3 of the PMLA where the underlying conspiracy relates to an offence that is not itself a scheduled offence.
The Court warned that if the ED’s interpretation were accepted — i.e., that Section 120B alone could trigger PMLA proceedings regardless of the nature of the underlying offence — then the Schedule to the PMLA would become entirely redundant, and any criminal offence capable of generating proceeds could be brought within the purview of PMLA simply by invoking the charge of conspiracy. The Supreme Court held that such an interpretation would attract the vice of unconstitutionality for being manifestly arbitrary.
8.2 Yash Tuteja v. Union of India — Reinforcing Pavana Dibbur
The Supreme Court subsequently reinforced this principle in Yash Tuteja v. Union of India, holding that there can be no question of “proceeds of crime” in the absence of any scheduled offence under the PMLA. Where the alleged conspiracy was in relation to offences under the Income Tax Act (which are not scheduled offences), the Court quashed the ED’s complaint, clarifying that Section 120B, despite being a scheduled offence, would attract the PMLA only if the conspiracy relates to the commission of another scheduled offence and the offence can be traced to money laundering. The review petition filed by the ED was also dismissed.
8.3 Practical Implications for Accused Persons
For persons accused in ED and PMLA proceedings where the charge of criminal conspiracy forms the basis of invoking PMLA jurisdiction, the Pavana Dibbur and Yash Tuteja judgments offer potent defence grounds. The key questions to be examined are: (i) Whether the conspiracy alleged is directed towards committing an offence that is itself a scheduled offence under PMLA; (ii) Whether the proceeds of crime, if any, can be traced to the scheduled offence; and (iii) Whether the accused was named in the predicate offence. Importantly, the Supreme Court has clarified that even a person not named as an accused in the scheduled offence can be prosecuted under PMLA for assisting in concealing or using proceeds of crime — but only if a valid scheduled offence exists in the first place.
For a broader understanding of criminal proceedings and quashing remedies, one may refer to my detailed articles on quashing under Section 482 CrPC / Section 528 BNSS and quashing of chargesheets by High Courts and the Supreme Court on this blog.
Conclusion
The law on criminal conspiracy has transitioned from Sections 120A and 120B of the IPC to Section 61 of the Bharatiya Nyaya Sanhita, 2023 with substantive continuity. The essential ingredients, the two-tier punishment structure, and the evidentiary principles developed over decades of Supreme Court jurisprudence remain intact under the BNS. The sole notable modification – the insertion of the words “with the common object” in Section 61(1) BNS – codifies what courts had already been requiring as a matter of judicial interpretation.
However, the practical impact of criminal conspiracy charges has evolved significantly, particularly in the context of white collar crimes and PMLA/ED proceedings. The Supreme Court’s pronouncements in Pavana Dibbur v. Directorate of Enforcement and Yash Tuteja v. Union of India have drawn clear jurisdictional boundaries, preventing the misuse of Section 120B (now Section 61 BNS) as a standalone trigger for invoking PMLA proceedings. These judgments are essential reading for every criminal law practitioner dealing with economic offences and enforcement actions.
As India’s criminal law undergoes its most significant transformation since 1860, practitioners must remain vigilant in applying the correct legal framework — the IPC for pre-July 2024 offences and the BNS for offences thereafter. The principles governing criminal conspiracy, as articulated by the Supreme Court over decades, remain the touchstone for both regimes. A thorough understanding of the ingredients, the punishment structure, and the limitations on the scope of conspiracy charges — particularly vis-à-vis PMLA and the ED — is indispensable for effective criminal law practice in India today.
Frequently Asked Questions (FAQs) on Conspiracy
Q1. Which section of BNS has replaced Section 120B IPC?
Section 61(2) of the Bharatiya Nyaya Sanhita, 2023 has replaced Section 120B IPC. Both the definition (erstwhile Section 120A) and punishment (erstwhile Section 120B) are now consolidated under Section 61 BNS.
Q2. What is the key difference between Section 61 BNS and Section 120A/120B IPC?
The primary difference is the insertion of the phrase “with the common object” in Section 61(1) BNS. The punishment structure remains identical. Additionally, both the definition and punishment are now contained in a single section rather than two separate sections.
Q3. Can one person alone be convicted for criminal conspiracy?
No. At least two persons must agree for a criminal conspiracy to exist. However, if the prosecution proves that two or more persons were involved but only one could be apprehended (the others being absconding, minor, or deceased), the single apprehended person may be convicted.
Q4. Can Section 120B IPC (now Section 61 BNS) alone be used to invoke PMLA?
No. As held by the Supreme Court in Pavana Dibbur v. Directorate of Enforcement (2023), Section 120B IPC becomes a scheduled offence under PMLA only if the alleged conspiracy is directed towards committing an offence that is itself included in the Schedule to the PMLA. It cannot be invoked on a standalone basis.
Q5. Is criminal conspiracy a bailable or non-bailable offence?
The bailability of criminal conspiracy depends on the nature of the offence that is the object of the conspiracy. If the conspiracy is to commit a non-bailable offence (such as murder, fraud involving large sums, etc.), the conspiracy charge will also be non-bailable. For less serious offences, it may be bailable.
Q6. Is an overt act necessary to prove criminal conspiracy?
An overt act is not necessary when the conspiracy is to commit an offence. However, when the agreement is to do a legal act by illegal means, some act in furtherance of the agreement must be established. The agreement itself is sufficient to constitute the offence in most cases.