Abetment is of three kinds: (i) abetment by instigation, (ii) abetment by aid, (iii) abetment by conspiracy. Abetment may be committed in various ways. Conspiracy is one of many such ways. Conspiracy is punishable in some cases as mere agreement with no overt act in pursuance therefore, but even abetment by conspiracy requires an overt act the spoken word or the manifest gesture to constitute it.
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Abetment is not punishable per se but conspiracy is.
ADVERTISEMENTS:
The Supreme Court has held that the distinction between the offence of abetment under the second clause of section 107 and that of criminal conspiracy under Section 120-A is that, in the former offence a mere combination of persons or agreement between them 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; in the latter offence the mere agreement is enough if the agreement is to commit an offence.
Section 120-A may be distinguished from Section 34 of I.P.C. The points of distinction between the two are as follows: —
Section 34 (Common intention):
ADVERTISEMENTS:
1. Section 34 applies when a criminal act is done in furtherance of the common intention of all the offenders.
2. Section 34 is a procedural rule; it lays down a principle to determine the criminal liability of persons more than one in the commission of a crime but does not create a substantive offence.
3. Active participation in some form is necessary.
4. Criminal act, doing of necessary
ADVERTISEMENTS:
Section 120-A (Conspiracy):
1. Section 120-A deals with or more persons to break law even though the illegal act does not follow.
2. Section 120-A defines a substantive offence, that is, the offence of conspiracy
3. Participation in the conspiracy may not be beyond assent to the agreement.
4. No act necessary in conspiracy to commit offence.
Section 120-A may, again, be distinguished from Section 107 of the I.P.C. The points of distinction between the two are as follows: —
Section 107 (Abetment):
1. Abetment consists in instigating a person to commit an offence, or engaging in a conspiracy to commit it, or intentionally aiding a person to commit it.
2. Abetment may consist of conspiracy as conspiracy is a species of abetment.
3. Abetment per se is not a substantive offence.
Section 120-A (Conspiracy):
1. Conspiracy consists in an agreement between two or more persons to do an illegal act or to do an act which is not illegal by illegal means and an overt act has been done in pursuance of the conspiracy in the latter case.
2. A conspiracy would not amount to abetment.
3. Conspiracy per se is a substantive offence.
The Supreme Court in its significant decision in Kehar Singh has observed that ‘there is vital difference between (i) abetment in any conspiracy, (ii) criminal conspiracy. The former is defined under the second clause of Section 107 and the latter is under Section 120-A. The gist of the offence of criminal conspiracy created under Section 120-A is bare agreement to commit an offence.
It has been made punishable under Section 120-B. The offence of abetment created under the second clause of Section 107 requires that there must be something more than a mere conspiracy. There must be some act or illegal omission in pursuance of that conspiracy.
That would be evident by the wordings of Section 107 (Secondly): “engages in any conspiracy….. for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy….” The punishments for these two categories of crimes are also quite different.
Section 109, I.P.C. is concerned only with the punishment of abetments for which no express provision is made under the Penal Code. A charge under Section 109 should, therefore, be along with some other substantive offence committed in consequence of abetment.
The offence of criminal conspiracy is, on the other hand, an independent offence. It is made punishable under Section 120-B for which a charge under Section 109, I.P.C. is unnecessary and indeed, inappropriate.
In Soma Chakraborty v. Stat the Court held that where fraud alleged to have been committed by government servants by processing and verifying fake bills, all the officers would be liable for conspiracy and abetment.