In ‘Furtherance’ of Substituting Criminal Conspiracy

-By Sarthak Wadhwa

(This article is the second part of a two part series)


In a recent two-part post on this blog, Shraddha and Yana present a comprehensive account of how colonial era laws are weaponized to ‘crackdown on dissent’ – and how the detention of Safoora Zargar and Disha Ravi for sundry charges including those of conspiracy u/s 120B of the IPC fit into a pattern of the authoritarian stifling of dissent. In a previous post, I have looked at the substantive charge of criminal conspiracy – to argue: first, that it allows the police to indict people entirely unrelated to the commission of an offence on very a flimsy standard of proof; and, second, that it creates a backdoor into the UAPA whereby the austere bail conditions contained therein are extended to such persons as may have committed even minor offences under the IPC.

In this follow-up to that analysis, I argue how the evidentiary rule of ‘common intention’ u/s 34 of the IPC can serve to substitute the substantive charge of criminal conspiracy altogether. To this effect I – first, show how the ingredients and evidentiary standards u/s 34 fare against those u/s 120B; and, second, exemplify this distinction between the provisions by applying the same to a hypothetical reassessment of the Safoora Zargar, Ishrat Jahan and Disha Ravi cases.

  1. Common Intention’ as an Alternative to Conspiracy

“If the mere intention of one person to commit a crime is not criminal,
why should the agreement of two people to do it make it criminal?”
Glanville Williams, Textbook of Criminal Law (2nd ed., 1999)

It is submitted that punishing all persons acting concertedly for the commission of any crime, as contemplated u/s 34 of the IPC – should exclude the substantive charge of criminal conspiracy u/s 120B of the IPC altogether. To this effect, in this segment I – first, exposit the ingredients of Section 34 of the IPC; second, juxtapose these ingredients against those of Section 120B of the IPC;  third, substantiate as to how the above cases (Safoora’s & Ishrat’s) would be dealt with u/s 34 of the IPC.

Section 34 enables the indictment of multiple people for the same alleged crime, on account of their shared intention to give effect thereto; the section reads:

When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

Preliminarily, three prerequisites for this imputation of criminal liability need to be satisfied viz. the participation of all the accused, the common intention shared among them, and their action in furtherance of this intent. Section 34 may be differentiated from a cognate group of provisions u/s 35, 37 and 38 of the IPC – all of which adumbrate the enlargement of criminal liability to the ‘participants’ of a crime. Section 35 postulates that each participant in the commission of an offence needs to individually possess (para 7 onwards) the requisite mens rea, irrespective of whether such intention was shared among the other participants to that crime; further, Sections 37 envisages the cooperative commission of different albeit concomitant acts which amount to an offence together; and, Section 38 talks about a criminal act being done by several actors, who may all be liable for different offences: Sections 37 and 38 do not rely on common intention either. Therefore, due to its thematic nexus with the idea of ‘agreement’ as the actus contra actum of criminal conspiracy – the sui generis use of ‘common intention’ u/s 34 of the IPC is relevant. To this effect, this section analyses the ingredients u/s 34 of the IPC for joint liability to accrue.

First, on the question of ‘participation’ in an offence — physical presence is essential to Section 34 in cases of a physical character (violence, rioting, vandalism, etc.). Where the crime alleged is not of a physical character (speeches, slogans, threats, etc.), passive presence of an accused may be considered in limited circumstances: it needs to be established that – first, there is a facilitation(para 2-8)of the overt criminal act by someone who has such passive presence; and, second, that there is a sense of ‘jointness’ in the commission of the act – irrespective (para 11) of any discrepancy between the intended injury and the actual injury. Doing a small act, in a series of small acts by different people, may also amount to ‘participation’.

Second, on the question of ‘common intention’ — community of intention is limited to do something. Merely similar intention does not meet this standard. In any case, only things that necessarily flow from that intention are imputable thereto – such other things that are entirely foreign and dissociated from the shared object are, therefore, excluded from the purview of ‘common intention’.

Relatedly – third, on the question of ‘furtherance’ — the actus reus alleged should be in furtherance of such common intention and not independent from it: mere knowledge of the object or independently shared intent without an act in furtherance thereof does not impute the liability for the commission of an offence on people other than those directly charged therewith. Actions of individuals subsequent to the commission of the alleged offence are not suggestive of anteriorcommon interest and therefore, such individuals do not incur criminal liability for the alleged offence.

Prima facie – the commonalities between Sections 120B and 34 of the IPC are salient: the direct physical commission of the alleged crime is not necessary, and the matching of minds (qua agreement, jointness) is essential. However, unlike Section 120B, Section 34 of the IPC requires the commission of an act beyond such meeting of the mind – in furtherance of this shared intention. This additional requirement beyond mere ‘agreement’ is reflected by how common intention must be established by necessary implication – “beyond reasonable doubt”. In fact, the admission of circumstantial evidence is also excluded by the Court’s exclusive reliance on established facts, founded on unimpeachable evidence.

More importantly however, Section 34 is amenable to imposing a constructive brand of criminal liability such as the one contemplated under Section 120B – but, with two very important failsafe qualifications: first, it allows an individual accused to be acquitted for either not sharing the intention of others accused, or not participating in the alleged crime, or even when acting indirectly – not furthering an interest common with others accused; and, second, it allows a more holistic appreciation of a complex incident such that different accused can be acquitted of a higher charge even while noting their latent participation in the alleged offence, with regard to their specific role and corresponding liability. Further, if the principal accused is acquitted – no proceedings stand against the other accused either.

  1. The Hypothetical Application of Section 34

Whereas the charge of criminal conspiracy ends up presuming intent on the basis of a circumstantial finding of ‘agreement’ between two individuals – Section 34 makes ‘common intention’ itself the first leg of enquiry (notwithstanding the degree of ‘jointness’ and subsequent participation). This is followed by an assessment of whether there was participation at all, and if such participation was in furtherance of the shared intention. By doing so, both Safoora’s and Ishrat’s cases can be decided differently – and a general approach to incidents dubbed ‘conspiracies’ can be formulated.

First, in Safoora’s case – bail was apparently denied solely on the grounds of her association with such other people as had committed acts and delivered inflammatory speeches elsewhere. This is inferrable from the Court’s remark on her alleged association with such other persons – “When you choose to play with embers, you cannot blame the wind to have carried the spark a bit too far and spread the fire.” For the criminal liability for these offences alleged against her ‘co-conspirators’ to be imputable to her – the Delhi Police would have to show shared intention (admittedly discernible from her WhatsApp chats) and participation in the alleged acts (apparently unlikely since there is neither physical presence, nor any act committed by Safoora that facilitates the commission of offences alleged against these other individuals at other places). For lack of her participation in their offences – Safoora would not be treated the same as others accused.

Second, in Ishrat’s case – the importation of UAPA charges and bail conditions would warrant that her intent to commit an offence thereunder and participation in such commission in furtherance of this offence are established. It is amply clear from the Court’s reasoning that apart from the Delhi Police clubbing the FIR against her with those against Umar Khalid – there is no other material that indicts Ishrat in satisfaction of any of these three tests. For her to then be indicted in a conspiracy with Umar Khalid u/s 18 of the UAPA, an unlawful activity under the UAPA would have to be shown against her specifically – which cannot be made out in her case either, on the basis of the facts on record.

Similarly, for Disha Ravi’s ‘Toolkit’ case – the issue at hand was the identification of protest avenues, mobilization of protestors, and raising awareness about the Farm Laws, i.e., compilation of  toolkit. While participation in conscious organization of resources may amount to a shared intention, the lack of any action subsequent to the same would mean that there is no criminal liability to go around for lack of ‘participation’ in furtherance of this common intention. Whereas, under Section 120A the apparent agreement itself would be culpable – here the intent to protest against the Government cannot be made culpable per se without any overt commission of an offence.

These cases bring out the contrast between Sections 34 and 120B of the IPC – to demonstrate how the latter is antithetical to free speech and democracy; and, how a higher standard proof is warranted to expand the ambit of criminal liability, especially in the case of inchoate offences without any overt physical expression thereof.


In these pieces, after analysing the ingredients of the substantive charge of criminal conspiracy u/s 120A – I have shown that the elevated burden of proof and the susceptibility thereof to a conspiratorial rhetoric spun by the State, makes the provision likely to be abused by creating a backdoor to the UAPA. In response to this, I framed ‘group liability’ u/s 34 of the IPC as not only an appropriate substitute to criminal conspiracy (since it imputes joint liability to all perpetrators with a shared intention) but also as an adequate one (since it does not criminalize mere unmanifested intention, albeit shared). I demonstrate this by looking at the cases of Safoora Zargar, Ishrat Jahan, and Disha Ravi – where the application of Section 34 could hypothetically result in better reasoned orders. The speculative use of ‘conspiracy’ both as a political rhetoric and a criminal charge distorts this process. And for the aforementioned reasons, it is a sensible choice to strike down ‘criminal conspiracy’ from the statute-book.

[The Author is a law student at the NLSIU, Bangalore]

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