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Tags : - criminal conspiracy; Section 120-A/ 43 IPC; Prevention of Corruption Act; 'illegal'; Section 438 Cr PC; anticipatory bail; necessity of custodial interrogation; duty of police; 'custody'; 'interrogation'; “right to remain silent”; third-degree method; 

Niranjan Tripathy v. Odisha

"70. While dealing with the facet of criminal conspiracy, it has to be kept in mind that in a case of conspiracy, there cannot be any direct evidence. Express agreement between the parties cannot be proved. Circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. Such a conspiracy is never hatched in open and, therefore, evaluation of proved circumstances plays a vital role in establishing the criminal conspiracy."

But this contention ignores the scope of offence of criminal conspiracy. Section 120-A of Indian Penal Code defines "criminal conspiracy" and under that definition "When two or more persons agree to do, or cause to be done, an illegal act or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy"

The gist of offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy though the illegal act agree to be done has not been done. So, too, it is not an ingredient of the offence that all the parties should agree to do a single illegal acts. It may comprise the commission of a number of acts. Under section 43 of I.P.C., an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge, the accused are charged with having conspired to do three categories of illegal act and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to illegal acts, though for individual offence all of them may not be liable".

7. The basic ingredients of the offence of criminal conspiracy as defined under section 120-AI.P.C. are

(i) An agreement between two or more persons;

(ii) The agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means.

The meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is the sine qua non of criminal conspiracy. The offence can be proved largely from the inferences drawn from the acts or illegal omission committed by the conspirators in pursuance of a common design in as much as the conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators. The entire agreement is to be viewed as a whole and it has to be ascertained as to what in fact the conspirators intended to do or the object they wanted to achieve. The essence of criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. Encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment (Ref:-AIR 2008 SC 2991, Yogesh @ Sachin Jagdish Joshi -v- State of Maharashtra; (1980) 2 SCC 465, Shivnarayan Laxminarayan Joshi -v- State of Maharastra, 2013 (3) SCALE 565, Yakub Abdul Razaq Menon -v- State of Maharashtra; AIR 2005 SC 128, K. Hasim -v- State of Tamil Nadu).

The statements of all those witnesses pointed out by the learned counsel for the Vigilance Department and other documents seized during course of investigation cannot be discussed in a detailed manner at this stage as the matter is under investigation.

The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts."

"7....The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the concerned courts while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of charge sheet cannot by themselves be construed as a prohibition against the grant of anticipatory bail."

In case of Maruti Nivrutti Navale -v- State of Maharashtra reported in 2012 (8) SCALE 572, wherein it is held as follows:-

"12.....It is true that the parties have also approached the Civil Court for various reliefs. At the same time, as pointed out by counsel for the State and the second respondent-Complainant, considering the seriousness relating to corrections/additions/alterations made in various documents, information furnished tThe argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders."

What is "custodial interrogation"? "Custody" means formal arrest or the deprivation of freedom to an extent associated with formal arrest. "Interrogation" means explicit questioning or actions that are reasonably likely to elicit an incriminating response. Questioning initiated by law enforcement officers after a person is taken into custody or otherwise deprived of his or her freedom in any significant way is called "custodial interrogation". The Court has to strike a balance between individual's right to personal freedom and the investigational rights of the police. On one hand, the Court has to prevent harassment, humilition and unjustified detention of an accused, on the other hand it is to see that a free, fair and full investigation is not hampered in any manner. When an application for anticipatory bail of an accused is objected to by the State on the ground of necessity of custodial interrogation, the Court can scan the materials available on record and ask the State to satisfy as to in what way the custodial interrogation would benefit the prosecution. The satisfaction of the Court would depend upon several facts viz., the nature of offence, the stage at which the investigation is pending, the materials which could not be traced out by the Investigating Agency due to absence of custodial interrogation and the benefit which the prosecution would get on account of custodial interrogation of the accused. It cannot be stated that in a particular type of cases or for a particular type of accused, the custodial interrogation is mandatory. It would all depend upon the facts and circumstances of each case. No strait jacket formula could be laid down. When the accused makes out a case for anticipatory bail, it is not to be defeated by mere asking for custodial interrogation by the prosecution without satisfying the necessity for the same. Sometimes the custodial interrogation of suspects would give clue regarding criminal conspiracy and identity of the conspirators and it may lead to confession of guilt and recovery of the incriminating materials. Sometimes at the crucial stage of investigation, the custodial interrogation would be a boon to the Investigating Officer. The person in custody likely to be interrogated has a right to remain silent. On some questions, he may answer and on some questions, he may remain silent or refuse to answer. Nobody can be compelled to answer to a particular question. No third-degree method is to be adopted for elicitating any answer. It is illegal to employ coercive measures to compel a person to answer.