Bharatiya Nyaya Sanhita, 2023
Section 61 BNS: Criminal Conspiracy
Section 61 of the Bharatiya Nyaya Sanhita, 2023 (BNS) defines criminal conspiracy and prescribes punishment for persons who are parties to such a conspiracy. The BNS is Act No. 45 of 2023 and, subject to the notified exception concerning Section 106(2), came into force on 1 July 2024.
In simple terms: criminal conspiracy is based on an agreement between two or more persons to pursue an illegal object, or to pursue a lawful object by illegal means. Where the agreement itself is to commit an offence, the agreement is the central element. In other cases covered by the proviso, an additional act in pursuance of the agreement is required.
Text of Section 61 of the Bharatiya Nyaya Sanhita, 2023
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.
What is criminal conspiracy under Section 61 BNS?
The foundation of Section 61 is an agreement between at least two persons. The common object of that agreement must be either to do an illegal act or to do an act that is not itself illegal by using illegal means.
Section 2(15) of the BNS explains the word "illegal". It applies to anything that is an offence, is prohibited by law, or furnishes ground for a civil action. This definition is relevant when determining whether the object or means contemplated by an alleged conspiracy falls within Section 61.
Essential ingredients of Section 61 BNS
- There must be two or more persons.
- There must be an agreement or common object between them.
- The agreement must concern an illegal act, or an act that is not illegal but is intended to be carried out by illegal means.
- If the agreement is to commit an offence, the proviso does not require a further act merely to make the agreement a criminal conspiracy.
- If the agreement is not itself an agreement to commit an offence, some act besides the agreement must be done by one or more parties in pursuance of it.
- The illegal act may be the ultimate object of the agreement or only incidental to that object.
Punishment under Section 61(2) BNS
| Nature of conspiracy | Punishment |
|---|---|
| Conspiracy to commit an offence punishable with death, imprisonment for life, or rigorous imprisonment for two years or more, where the BNS contains no express punishment for that conspiracy. | The person is punished in the same manner as if he or she had abetted that offence. |
| Other criminal conspiracies not falling within Section 61(2)(a). | Imprisonment of either description for a term up to six months, or fine, or both. |
When is an overt act required?
The proviso to Section 61(1) distinguishes an agreement to commit an offence from other agreements covered by the section. If the agreement is specifically to commit an offence, the statutory proviso does not require an additional act beyond the agreement for it to amount to criminal conspiracy. For other agreements, an act besides the agreement must be done by one or more parties in pursuance of it.
Key point: Section 61 focuses on the unlawful agreement itself. Whether the contemplated illegal act was the final objective or merely incidental to a wider objective does not matter because the Explanation expressly says that distinction is immaterial.
Section 61 BNS and the earlier IPC provisions
Section 61 of the BNS brings the definition and punishment of criminal conspiracy into one provision. Under the earlier Indian Penal Code, 1860, the corresponding subject was principally dealt with in Sections 120A and 120B. The law applicable to a particular incident can depend on the date of the alleged conduct and the relevant saving and transition provisions.
Official BNS reference
For the authoritative statutory text, see the Bharatiya Nyaya Sanhita, 2023 on India Code. The official consolidated text identifies the BNS as Act No. 45 of 2023 and records its commencement from 1 July 2024, except the notified provision of Section 106(2).
Note: This page is a general legal-information article and should be read with the current statutory text, applicable notifications, procedural law and binding judicial decisions relevant to the facts of a particular case.