IPC 120B in the new BNS 2023

If you have been named in an FIR or notice under this section, the section number alone does not decide the outcome — the facts, the evidence and the procedure do. Many cases turn on procedural lapses, bail strategy and the exact ingredients of the offence.

Criminal conspiracy punishes the agreement itself, which makes it unusual: where the object is the commission of an offence, nothing further need be done for the conspiracy to be complete. It is charged constantly in economic offence cases and in any prosecution involving several accused. Under the BNS the definition sits at Section 61(1) and the punishment at Section 61(2).

What the section requires

For the offence to be made out, these ingredients have to be established:

• two or more persons agreed to do, or to cause to be done, an illegal act, or a legal act by illegal means
• where the agreement was to commit an offence, the agreement itself completes the conspiracy
• where the agreement was not to commit an offence but to do some other illegal act, an act must have been done by one or more parties in pursuance of the agreement

What changed from the IPC

The provision is carried over almost word for word, with a structural consolidation. The IPC dealt with conspiracy in two sections — 120A defined it and 120B punished it — and the BNS merges them into Section 61, with the definition at 61(1) and the punishment at 61(2). The two-tier punishment is retained: where the conspiracy is to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for two years or more, the conspirator is punished in the same manner as if they had abetted the offence; in any other case, the maximum is six months, or a fine, or both. Because the language is essentially unchanged, the substantial body of Supreme Court authority developed under Sections 120A and 120B continues to apply.

How this section is distinguished from related offences

Three doctrines of group liability are frequently confused and are often charged together. Criminal conspiracy under BNS 61 punishes the agreement, and it is a substantive offence in its own right — a person can be convicted of conspiracy even if the planned offence never occurred. Common intention under BNS 3(5) is not an offence at all but a rule of liability, and it requires participation in the criminal act, which conspiracy does not. Abetment under BNS 45 to 60 punishes instigating, conspiring in or aiding an offence, and conspiracy is one of the three ways abetment can be committed, which is why the two overlap. The practical distinction that matters most is that conspiracy requires an agreement but not participation, whereas common intention requires participation but can be formed on the spot.

How the case proceeds

Because the punishment for conspiracy to commit a serious offence mirrors that of the substantive offence, the procedural position — cognizability, bail and the trying court — follows the offence conspired at rather than the conspiracy provision itself. Charging conspiracy allows the prosecution to bring in evidence that would otherwise be inadmissible against a co-accused, since statements made by one conspirator in reference to their common intention are admissible against the others under the provision that succeeded Section 10 of the Evidence Act. That evidential consequence, rather than the punishment, is often the reason the section is added.

Evidence that usually decides these cases

Conspiracy is proved almost entirely by circumstantial evidence, because agreements of this kind are not documented. Courts look at the chain: communications between the accused, meetings, financial transfers, the division of roles, and conduct before and after the alleged offence that is explicable only on the basis of a shared plan. Call detail records are the single most heavily used category of evidence, and the pattern and timing of contact matters more than the content, which is rarely available. Statements of a conspirator made in reference to the common intention are admissible against the others, which makes the question of when the conspiracy began and ended important, since statements made after it ended do not attract that rule. The defence attacks the chain by showing that each circumstance has an innocent explanation and that the links do not exclude every reasonable hypothesis other than guilt.

How courts approach sentencing

Where the conspiracy is to commit an offence punishable with death, imprisonment for life or rigorous imprisonment of two years or more, the punishment is the same as for abetting that offence. In any other case, imprisonment of up to six months, or a fine, or both. In practice, sentencing in serious cases is governed entirely by the substantive offence conspired at.

Defences that commonly apply

The central defence is that no agreement has been established — that what the prosecution presents as a conspiracy is a series of circumstances each capable of an innocent explanation. Because these cases rest on circumstantial evidence, the requirement that the circumstances form a complete chain excluding every reasonable hypothesis other than guilt is the standard the defence holds the prosecution to. Establishing a legitimate reason for the association, the communications or the financial transactions relied on is the practical form this takes. Where a person joined a transaction after the alleged agreement, or withdrew before the offence, the timing of their involvement is directly relevant, since liability attaches only to the period during which they were party to the agreement.

How a case under this section typically progresses

Conspiracy charges are almost always attached to a substantive offence, so the timeline follows that offence. Investigation in economic offence cases involving conspiracy tends to be long, because it depends on obtaining call records, bank records and documents from multiple sources. The critical stage for an accused named only as a conspirator is the framing of charges, where discharge can be sought on the ground that the material discloses association but not agreement. Trials involving multiple accused and circumstantial evidence are among the longest in the criminal courts.

Documents worth gathering early

Assemble everything that explains the association legitimately: the contract, employment record, partnership deed, board minutes or correspondence that accounts for why you were in contact with the other accused. Obtain your own call detail records for the relevant period, since the prosecution's chain is usually built from them and the same records frequently support an innocent explanation. Bank statements and transaction records matter for the same reason. Where you joined or left an organisation, transaction or arrangement, keep the documents fixing those dates precisely, because liability is confined to the period of participation in the agreement.

Note on bail and cognizability. Whether an offence is cognizable, and whether it is bailable, is set by the First Schedule to the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, not by the BNS section itself. Because that classification decides whether police can arrest without a warrant and how bail is approached, check it for your specific section with an advocate rather than relying on a general summary.

If you have been named under this section

The question that decides these cases is whether an agreement existed, and it is almost never proved by direct evidence. Where you are named as a conspirator without any allegation that you participated in the substantive offence, the case against you rests entirely on inference drawn from association, communication and circumstances, and the strength of that inference is what has to be attacked. Association alone — knowing the other accused, working with them, communicating with them — is not agreement, and courts have repeatedly said so.

Common misunderstandings

"The planned offence must have been committed."
Not where the object was to commit an offence. There the agreement itself completes the conspiracy. An overt act is required only where the agreement was to do some other illegal act.

"Conspiracy and common intention are the same."
They are not. Conspiracy under BNS 61 is a substantive offence punishing the agreement and requires no participation. Common intention under BNS 3(5) is a rule of liability requiring participation in the act.

"Knowing the other accused proves conspiracy."
It does not. Association, communication and even presence are not agreement, and a conviction requires a meeting of minds on the unlawful object.

"The punishment is always six months."
Only where the object is not an offence punishable with death, life or rigorous imprisonment of two years or more. In serious cases the conspirator is punished as if they had abetted the offence.

Related BNS sections

• BNS 61 — Criminal conspiracy
• BNS 3(5) — Acts done by several persons in furtherance of common intention (IPC 34)
• BNS 45 — Abetment
• BNS 190 — Common object of an unlawful assembly (IPC 149)

Which code applies to your case

The Bharatiya Nyaya Sanhita 2023 replaced the Indian Penal Code 1860 with effect from 1 July 2024, and the change is not retrospective. The date the offence is alleged to have been committed decides which code governs it. An offence alleged to have occurred on or after 1 July 2024 proceeds under the BNS. An offence alleged to have occurred before that date continues to be investigated, tried, appealed and punished under the IPC, even where the FIR was registered later. Cases from the transition period frequently cite both numbering systems, which is why the old section number remains worth knowing.

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General information for understanding the IPC→BNS change, not legal advice. The BNS restructured many offences — confirm the exact section, sub-section and punishment with a licensed advocate.