For Abetment By Conspiracy, Mere Agreement Not Enough; Something Must Be Done: Kerala High Court

The Kerala High Court on Monday while granting pre-arrest bail to Malayalam actor Dileep and other accused reiterated the clear distinction between the offences of abetment by conspiracy and criminal conspiracy. 

Dileep and 5 others were facing accusations of conspiring to kill the investigating officers of the 2017 actor sexual assault case, in which Dileep is facing trial as the alleged chief conspirator.

The FIR in the instant case mentioned Sections 116(abetment), 118, 120B (of 302) and 506 of the Indian Penal Code r/w. Section 34 of that Code. Section 116 of the Code deals with the punishment for abetment of an offence and Section 118 deals with the punishment for concealing design to commit an offence punishable with death or imprisonment for life. Section 120B deals with the punishment for entering into a criminal conspiracy and Section 506 provides the punishment for criminal intimidation.

The Court noted that in the instant case it is concerned with "abutment by conspiracy" as per the second part of Section 107 of the IPC. The Court then went on to discuss the difference between "abutment by conspiracy" under Section 107 and the offence of "criminal conspiracy" as per Section 120B IPC.

Upon referring to several decisions on this issue, Justice Gopinath P. decided that while an illegal omission or act is necessary to constitute an offence of abetment by conspiracy, mere agreement is sufficient to amount to criminal conspiracy. 

"It is clear from the law laid down in the aforesaid judgment that, for abetment by conspiracy, a mere agreement is not enough. Some act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired. Distinct from the offence of abetment, the offence of criminal conspiracy does not require the doing of an act or an illegal omission. Criminal conspiracy is an offence by itself."

The Court noted that although it may not appear so initially, upon careful scrutiny it can be seen that abetment by conspiracy and criminal conspiracy are two separate offences with different criteria. 

"It may appear, at first blush, that there is some overlap between 'abetment by conspiracy' and 'criminal conspiracy'. However, there is none."

To answer the question of when a criminal conspiracy becomes abetment, Justice Gopinath referred to the judgment of the Patna High Court in State of Bihar v. Srilal Kejriwal where it was held that where it has gone beyond the stage of mere conspiracy and offences are alleged to have been actually committed in pursuance thereof, section 120A (criminal conspiracy) is irrelevant.

Reliance was also placed on the Supreme Court decision in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar where it was held that for abetment by conspiracy mere agreement is not enough; an act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for. But in the offence of criminal conspiracy, the very agreement or plot is an act in itself and is the gist of the offence. 

However, when the court applied this law to the facts of the case, it found nothing to suggest that the accused had engaged in abetment by conspiracy. 

"For an offence of abetment, something must be done. There is no material to suggest that an act or illegal omission had occurred for the accused in this case to be charged with an offence of abetment of that act or omission. Therefore, prima facie and for the purposes of these Bail Applications, it can be presumed that Section 116 of the Code is not attracted."

Likewise, the Judge attempted to see if there was any material to establish criminal conspiracy in the case. 

However, although the very agreement or concurrence between the conspirators is sufficient to attract the offence, the Court found that such concurrence cannot be inferred by a group of irrelevant facts artfully arranged to give an appearance of coherence. 

"Having considered the materials placed and having gone through Annexures-G, H and I along with the other materials which, according to the prosecution, indicate that a criminal conspiracy has been established, I am of the opinion, prima facie, that at present, there is no material to suggest that the accused had committed the offence of criminal conspiracy", Justice Gopinath noted in the order.

Accordingly, with the said finding among others, the Court granted anticipatory bail to the accused. 

Towards the end of the judgment, the Judge also spoke of the media attention this case had garnered.

Case Title: P. Gopalakrishnan alias Dileep & Ors v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 65

Click Here To Read/Download The Judgment