provisions relating to registration of documents under registration act
TRANSCRIPT
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Provisions relating to Registration of documents under Registration Act:
Introduction:
1. The Registration Act, 1908 is having object of proper recording and registration
of documents/instruments, which give them more authenticity. Registration
means recording of the contents of a document with a Registering Officer, and
preservation of copies of original document. Documents are registered for the
purpose of conservation of evidence, assurance of title, publicity of documents
and prevention of fraud.
Object of Registration Act
2. The object of Registration and inter-alia Registration Act is elaborately
discussed by Honourable Supreme Court in case of Suraj Lamp and
Industries Pvt. Ltd. versus State of Haryana and Another,1 as under:
“The Registration Act, 1908, was enacted with the intention of
providing orderliness, discipline and public notice in regard to
transactions relating to immovable property and protection from fraud
and forgery of documents of transfer.”
…
“This is achieved by requiring compulsory registration of certain types
of documents and providing for consequences of non-registration.
Registration provides safety and security to transactions relating to
immovable property, even if the document is lost or destroyed. It gives
publicity and public exposure to documents thereby preventing
forgeries and frauds in regard to transactions and execution of
documents. Registration provides information to people who may deal
with a property, as to the nature and extent of the rights which persons
may have, affecting that property. In other words, it enables people to
find out whether any particular property with which they are
concerned, has been subjected to any legal obligation or liability and
who is or are the person/s presently having right, title, and interest in
the property. It gives solemnity of form and perpetuate documents
which are of legal importance or relevance by recording them, where
people may see the record and enquire and ascertain what the
particulars are and as far as land is concerned what obligations exist
with regard to them. It ensures that every person dealing with 1 AIR 2012 SC 206
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immovable property can rely with confidence upon the statements
contained in the registers (maintained under the said Act) as a full and
complete account of all transactions by which the title to the property
may be affected and secure extracts/copies duly certified. Registration
of documents makes the process of verification and certification of title
easier and simpler. It reduces disputes and litigations to a large extent.”
Registration of Document:
3. The documents registrable under the Act fall under three categories. In the first
category, documents relating to transactions which according to the
substantive law, can be effected only by registered documents. The
Registration Act does not lay down that any transaction in order to be valid
must be effected by a registered instrument only. What it provides is that when
there is a written instrument evidencing a transaction, it must, in certain cases,
be registered. Sales, Mortgages, Exchanges, Gifts and Leases under Transfer of
Property Act, 1882 are required to be effected only by registered instruments
subject to an exception in case of some transactions relating to immovable
property of less than ` 100/- in value. Under section 17 of the Registration Act,
the compulsorily registrable documents are given.
Maharashtra Amendment to Registration Act
4. There is Maharashtra State Amendment to Registration Act. The Registration
(Maharashtra Amendment) Act, 2010 is in force since 01st April 2013. The
Amendment has inserted section 89A in Registration Act. The relevant portion
of the section is
" 89A. Copies of court decrees, attachment orders, etc., to be sent to Registering
Officers and filed in registers.— (1) Every Court passing,--
(a) any decree or order creating, declaring, transferring, limiting or extinguishing
any right, title or interest to or in immovable property in favour of any person, or (b) an order for interim attachment or attachment of immovable property or for the
release of any immovable property from such attachment, shall, in accordance with the rules made in this behalf, send a copy of such decree or order
together with a memorandum describing the property as far as may be practicable, in the
manner required by section 21, to the registering officer within the local limits of whose
jurisdiction the whole or any part of the immovable property comprised in such decree or
order is situate, and such officer shall file the copy of the memorandum in his Book No. 1 :
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5. Due to this amended section, (i) any decree or order effecting an immovable
property or (ii) any order of attachment of immovable property (interim or
otherwise), or (ii) releasing any immovable property from any such
attachment, the Court passing such decree/order is required to send a copy of
such decree/order along with a memorandum describing attached/affected/
released property, to the registering officer (having jurisdiction over the
immovable property). This would mean that all ad-interim and interim orders of
attachment by any of the competent courts with respect to any immovable
property would be required to be registered. This procedure along with filing of
lis-pendence will ensure that innocent third party purchasers and interest of the
litigants are protected. As the responsibility to forward an order and register is
on the Court passing the decree/order and/or on the officer issuing sale
certificate/written demand, there is no time limit prescribed for the same, nor
is any penalty prescribed for non-filing. This is done with a view to further
strengthen the recovery proceedings initiated under appropriate court of law.
Hence no property, immovable or movable, for which a sale certificate has
been issued, any of the competent court or office including, can be dealt with
by the property owner to evade payment of dues as decreed by the competent
court.
6. Documents which fall under the second category: Certain transactions can be
effected without writing, i.e. partitions, releases, settlements etc. But, if the
transaction is evidenced by a writing and relates to immovable property, the
Registration Act steps in and clauses (b) and (c) of Section 17(1) of said Act
require registration of such documents, subject to the exception specified in
sub-section 2 of that section. If an authority to adopt is conferred in writing,
other than a Will, it is also required to be registered vide section 17(3).
7. Documents which fall under the third category: It is open to the parties, if they
so choose, to get certain documents registered at their option and this is
permitted by section 18. ‘Will’ need not be registered but it is open to the
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parties to get it registered under the third category.
Limitation for registration of a document:
8. Limitation for registration of a document under section 23 of the Act, subject to
certain exceptions, any document other than a Will has to be presented for
registration within four months from the date of its execution. The term
‘execution’ means signing of the agreement. Under the present rules and
regulations, all agreements in respect of a transfer for a premises or an
immovable property have to be duly stamped, under the provisions of the
Bombay Stamp Act, 1958 before the document is presented for registration.
9. Section 17 deals with documents of which registration is compulsory. Whereas,
sub-Section (2) of section 17 provides a dozen of exceptions to clause (b) and
(c) of section 17(1). Section 18 of Registration Act pertains to documents of
which registration is optional. Word ‘may’ is used in textual of section 18.
Section 49 of Registration Act consists of two parts. First is “that no document,
required by section17 or by provision of Transfer of Property Act to be
registered, shall affect any immovable property compromised therein”.
Secondly, “shall not be received as evidence of any transaction affecting such
property” i. e. “the immovable property comprised therein”. The first part
presupposes that the document itself is the transaction or the mode in which it
is carried out. The second part relates to cases where the document itself is the
transaction but is only the record of a transaction, or being itself a transaction,
contains a reference to, or recital of, another transaction which affects the
immovable property comprised therein. This section must be read together
with section 17 and section 91 of Evidence Act, a fair interpretation of section
49 does not preclude an unregistered document, which is required by law to be
registered from being given in evidence as to the terms of a contract of sale.
10. An unregistered deed is admissible in evidence to prove an admission therein
that some of the properties covered by it are self-acquisition of the executant.
This section lays down a rule of substantive law, but the proviso embodies a rule
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of evidence. All that the proviso, permits is that, in a suit for specific
performance an unregistered document affecting immovable property may be
given in evidence. The object is that the document which has not conveyed or
passed a title may be used as evidence of the terms. Though the instrument is
not admissible for the purpose of proving a concluded transaction transferring
an interest, yet it can be received in evidence for collateral purposes. It was
pointed out in Bai Gulabbai v/s. Dattagarji,2 that collateral purpose is any
purpose other than of creating, declaring, assigning, limiting or extinguishing a
right to immovable property. Thus, if the unregistered document is not to be
relied upon and if terms of the disposition of the property embodied in that
document are not sought to be proved by other evidence the bar of section
49(c) or section 91 Evidence Act will not apply. Only oral evidence in proof of
the terms of the contract under section 91 of Evidence Act can be given.
What is Collateral purpose?
11. Under the proviso to Section 49 of the Registration Act, an unregistered
document can also be admitted into evidence for a collateral fact/collateral
purpose. In Ratan Lal and others versus Harisankar and others,3 while
discussing the meaning of the term "Collateral Purpose", Honourable Allahabad
High Court has observed as follows:-
"The second contention was that the partition deed, even if it was not
registered could certainly be looked into for a collateral purpose, but
the collateral purpose has a limited scope and meaning. It cannot be
used for the purpose of saying that the deed created or declared or
assigned or limited or extinguish the right to immovable
property ..........term collateral purpose would not permit the party to
establish any of these acts from the deed."
12. In the case of Bajaj Auto Limited versus Behari Lal Kohli,4 Honourable
Supreme Court observed that if a document is inadmissible for non-registration,
all its terms are inadmissible including the one dealing with landlords
2 [9 Bom L. R.393]
3 AIR 1980 Allahabad 180
4 AIR 1989 SC 1806
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permission to his tenant to sub-let. It was also held in said decision that if a
decree purporting to create a lease is inadmissible in evidence for want of
registration, none of the terms of the lease can be admitted in evidence and
that to use a document for the purpose of proving an important clause in the
lease is not using it as a collateral purpose.
13. Again in Rai Chand Jain Vs. Chandra Kanta Khosla,5 the above principle was
reiterated and in paragraph 10 it was observed as under:-
"It is well settled that unregistered lease executed by both the parties
can be looked into for collateral purposes. In the instant case the
purpose of the lease is evident from the deed itself which is as follows:
"The lessor hereby demises House No. 382, Sector 30-A, Chandigarh, to
lessee for residential purposes only". This clearly evinces that the
property in question was let out to the tenant for his residence only...."
14. In the case of Rana Vidya Bhushan Singh versus Ratiram,6 the following
has been laid down:
"A document required by law to be registered, if unregistered, is
inadmissible as evidence of a transaction affecting immovable property,
but it may be admitted as evidence of collateral facts, or for any
collateral purpose, that is for any purpose other than that of creating,
declaring, assigning, limiting or extinguishing a right to immovable
property. As stated by Mulla in his Indian Registration Act, 7th Edition
at page 189:
"The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna,
Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu
& Kashmir; the former Chief Court of Oudh; the Judicial Commissioners
Court of Peshawar, Ajmer and Himachal Pradesh and the Supreme
Court have held that a document which requires registration under
Section 17 and which is not admissible for want of registration to prove
a gift or mortgage or sale or lease is nevertheless admissible to prove
the character of the possession of the person who holds under it."
15. From the principles laid down in the various decisions, it is evident that:
a. A document required to be registered is not admissible into evidence under
5 AIR 1991 SC 747
6 1969 (1) UJ 86 (SC)
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Section 49 of the Registration Act.
b. Such unregistered document can however be used as an evidence of
collateral purpose as provided in the Proviso to Section 49 of the
Registration Act.
c. A collateral transaction must be independent of, or divisible from, the
transaction to effect which the law required registration.
d. A collateral transaction must be a transaction not itself required to be
effected by a registered document, that is, a transaction creating, etc. any
right, title or interest in immoveable property of the value of one hundred
rupees and upwards.
e. If a document is inadmissible in evidence for want of registration, none of its
terms can be admitted in evidence and that to use a document for the
purpose of proving an important clause would not be using it as a collateral
purpose.
Conclusion:
16. The Registration Act, unlike the Transfer of Property 1882, strikes only at
documents, and not at transactions. In the same way, the Registration Act does
not require that every transaction affecting immovable property should be
carried out only through a registered instrument. All that it enacts is that when
a document is employed to effectuate any of the transaction specified in s.17 of
the Registration Act, such document must be registered.
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IMPOUNDING OF DOCUMENTS:
17. The object of the Bombay Stamp Act, 1958 *now known as Maharashtra Stamp
Act, 1958, and henceforth referred to as ‘Stamp Act’+ is to collect proper stamp
duty on an instrument or conveyance on which such duty is payable. The stamp
duty is imposed upon the instruments and not upon the transaction. For
charging stamp duty, the instrument is not to be treated by the name it bears
but by the substance or real nature of the transaction recorded therein. The
instruments or documents have to be read as they are i. e. as they are worded
or drafted. There is nothing illegal to adopt a method in effecting a transaction
so as to reduce or lessen the liability of stamp duty. A document which is not
stamped, though required to be stamped or is under stamped, is not by that
reason, invalid as between the parties.
18. ‘Impound’ means ‘to keep in custody of the law’. There must be some distinct
action which will show that documents or things have been impounded.
According to Oxford Dictionary "impound" means to take legal or formal
possession. Production, impounding and return of documents is considered
under Order XIII of the Code of Civil Procedure, 1908. Original documents to be
produced at or before the settlement of issues, is a mandate of Sub-rule (1) of
Order XIII of the Code of Civil Procedure. Sub-rule (2) obligates the Court to
receive the documents so produced. It is this stage, of admitting the documents
in evidence by the Court. Rule 8 of Order XIII refers to order by the Court for
impounding any document.
19. It is provided that the Court may, if it sees sufficient cause, direct any document
or book produced before it in any suit to be impounded and kept in the custody
of an officer of the Court, for such period and subject to such conditions as the
Court thinks fit. Rule 8 of Order XIII starts with the non-obstante clause in
relation to Rule 5 or Rule 7 or Rule 17 of Order VII. Thus, power to impound the
document and impounding of such document is provided under Order XIII Rule
8 of the Code of Civil Procedure.
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‘Instruments not duly stamped’
20. Chapter IV of Stamp Act deals with ‘Instruments not duly stamped’. The Chapter
comprises of section 3 to 46. Section 33 provides for examination and
impounding of such instruments. Section 33(1) of the Stamp Act states that
every person having by law or consent of parties authority to receive evidence,
and every person in charge of a public office, except an officer of police, before
whom any instrument, chargeable, in his opinion, with duty, is produced or
comes in the performance in his functions shall, if it appears to him that such
instrument is not duly stamped, impound the same. Perusal of the above
provision shows that when a document is produced (or comes in the
performance of his functions) before a person who is authorized to receive
evidence and a person who is in charge of a public office (except a police
officer) before whom any instrument chargeable with duty is produced or
comes in the performance of his functions, it is the duty of such person before
whom the said instrument is produced to impound the document if it is not
duly stamped. The use of the word ‘shall’ in Section 33(1) shows that there is
no discretion in the authority mentioned in Section 33(1) to impound a
document or not to do so.
21. Section 37 of Stamp Act lays down the manner of dealing with instruments
which have been impounded. If the person impounding the document has the
authority to receive evidence and admits the instrument in evidence on
payment of penalty or duty, he has to follow the procedure laid down in sub-
section (1). In other cases, procedure laid down in subsection (2) is to be
followed.
22. In the case of Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao &
others,7 Honourable Supreme Court had an occasion again to consider the
scope and ambit of Sections 33(1), 35 and 36 of the Act and Section 63 of the
Indian Evidence Act and observed as under:
7 AIR 1971 SC 1070
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“13. The first limb of Section 35 clearly shuts out from evidence any
instrument chargeable with duty unless it is duly stamped. The second
limb of it which relates to acting upon the instrument will obviously
shut out any secondary evidence of such instrument, for allowing such
evidence to be let in when the original admittedly chargeable with duty
was not stamped or insufficiently stamped, would be tantamount to the
document being acted upon by the person having by law or authority to
receive evidence. Proviso (a) is only applicable when the original
instrument is actually before the Court of law and the deficiency in
stamp with penalty is paid by the party seeking to rely upon the
document. Clearly secondary evidence either by way of oral evidence of
the contents of the unstamped document or the copy of it covered by
Section 63 of the Indian Evidence Act would not fulfill the requirements
of the proviso which enjoins upon the authority to receive nothing in
evidence except the instrument itself. Section 35 is not concerned with
any copy of an instrument and a party can only be allowed to rely on a
document which is an instrument for the purpose of Section 35.
“Instrument” is defined in Section 2(14) as including every document by
which any right or liability is, or purports to be created, transferred,
limited, extended, extinguished or recorded. There is no scope for
inclusion of a copy of a document as an instrument for the purpose of
the Stamp Act.
14. If Section 35 only deals with original instruments and not copies
Section 36 cannot be so interpreted as to allow secondary evidence of
an instrument to have its benefit. The words an instrument in Section
36 must have the same meaning as that in Section 35. The legislature
only relented from the strict provisions of Section 35 in cases where the
original instrument was admitted in evidence without objection at the
initial stage of a suit or proceeding. In other words, although the
objection is based on the insufficiency of the stamp affixed to the
document, a party who has a right to object to the reception of it must
do so when the document is first tendered. Once the time for raising
objection to the admission of the documentary evidence is passed, no
objection based on the same ground can be raised at a later stage. But
this in no way extends the applicability of Sec.36 to secondary evidence
adduced or sought to be adduced in proof of the contents of a document
which is unstamped or insufficiently stamped.”
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23. From the above, it is clear that an instrument which is not duly stamped can be
impounded and when the required fee and penalty has been paid for such
instrument it can be taken in evidence under Section 35 of the Stamp Act.
Sections 33 or 35 are not concerned with any copy of the instrument and party
can only be allowed to rely on the document which is an instrument within the
meaning of Section 2(14). There is no scope for the inclusion of the copy of the
document for the purposes of the Indian Stamp Act. Law is now no doubt well
settled that copy of the instrument cannot be validated by impounding and this
cannot be admitted as secondary evidence under the Indian Stamp Act, 1899.
24. To attract the provisions to impound, three conditions must be fulfilled (1) the
authority empowered to impound a document must be the authority specified
therein, (2) the instrument is not stamped according to this Act, (3) the
instrument is produced or comes before him in the performance of his
functions. The power to impound document can only be exercised by the Court
or other officers, while recording evidence or performing their duties, the
document is produced or comes before it or them. The production of the
document must be for the purpose of the case or for performing any function in
regard to such document.
25. Doctrine of ‘functus officio’ – The power of impounding the document which
is not duly stamped can be exercised by the Judge or other officer only in
respect of a document which is produced or comes before him in the
performance of his functions. If such document is not impounded before the
decision of the suit or case or the function in respect of that document is over,
as the Judge or the officer, ceases to be functus officio, he cannot, thereafter
impound the document. Similarly a Sub-Registrar also cannot impound the
document after it is registered. A document presented to the Collector under
section 31 for opinion cannot be impounded.
26. A conjoint reading of the above sections makes it clear that Section 34 of the
Act only prohibits the admissibility of instruments not duly stamped in evidence
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except on payment of the amount required to make up the proper stamp duty
and the penalty specified therein. Section 33 is intended to achieve a different
object altogether. It has been incorporated to safeguard the revenue of the
State. It mandates every person specified therein before whom any instrument
chargeable with duty is produced or comes in performance of his functions to
impound the same if he is satisfied that such an instrument is not duly
stamped. For that purpose, he has been given the power to examine the
instrument so produced or coming up before him in order to ascertain whether
it is stamped with a stamp of the value and description described by the law.
The fact that the instrument is or is not valid in law is not relevant for the
purpose of impounding the same. Under Section 37 such impounded document
has to be sent to the Collector for the purpose of taking action as contemplated
in sub-section (2) thereof. If the document has been admitted in evidence on
payment of duty and penalty provided in Section 34 the authority concerned
may follow the procedure laid down in sub-section (1). In other cases the
procedure laid down in sub-section (2) has to be followed and authenticated
copy of the instrument from the court has to be forwarded to the Collector for
appropriate action.
Procedure for impounding:-
27. In Shri Jayasingh Narayan Tupe versus Shri Sambhaji Baburao Pawar
and others,8 it has been observed that,
“if the possession of immovable property is handed over in the
document styled as agreement to sell, then it requires requisite stamp
as per the Act. Further, if the delivery of possession is to take place on
the execution of the sale deed then such an agreement would not be
covered by the Explanation I to Article 25…. However, the Trial Court
thereafter erred in not impounding the document under Section 33 of
the Bombay Stamp Act and sending it to the Collector for adjudication
but has merely recorded that since the document is improperly
stamped, it cannot be read in evidence. To that extent, the impugned
8 2013(3) MhLJ 433,
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order would have to be set aside and is accordingly set aside and the
Trial Court is directed to impound the said document and send it to the
Collector for adjudication. It is only after the document is adjudicated
upon for the payment of stamp duty and in the event the stamp duty is
paid, that the Plaintiff can apply to the Trial Court for the document to
be read in evidence”.
Section 49 of Registration Act & Section 34 of Stamp Act:
28. If any instrument, which requires compulsory registration, is not registered and
is in-sufficiently stamped, then there applies two legal embargos to admit it in
evidence. First embargo is section 34 of Stamp Act which provides that, no
instrument chargeable with stamp-duty shall be admitted in evidence, unless
such instrument is duly stamped. Such embargo of insufficiently stamped
instrument can be cleared by impounding of such instrument and by recovering
the deficit stamp-duty along with penalty. As soon as such embargo is cleared,
such instrument can be admitted in evidence, but, subject to clearance of
second embargo. Now, the second embargo is section 49 of Registration Act,
which provides that, no document required by section 17 or by any provision of
Transfer of Property Act, 1882, to be registered shall (i) affect any immovable
property comprised therein, or (ii) confer any power to adopt, or (iii) be
received as evidence of any transaction affecting such property or conferring
such power, unless it has been registered.
29. Therefore, unless an instrument which requires compulsory registration under
provisions of law is registered, it cannot be received as evidence of such
transaction and it will not affect any immovable property, whose transaction is
entered into it. Under such situation, unregistered and insufficiently stamped
instrument which requires compulsory registration, can be admitted or
received in evidence and will affect the immovable property, only after its
impounding as well as registration. If any such instrument is merely impounded
but not got registered, then, only the first embargo will be cleared, but not
second. Therefore, unless both embargos supra are cleared, such instrument
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cannot be admitted in evidence and cannot affect the status of any immovable
property.
Relevant Date for Levying penalty:
30. It is frequently asked question [FAQ] in respect of impounding of document as
to which date is to be considered for levying penalty on insufficiently stamped
document. Honourable Bombay High Court has observed in case of Krishna
Sheena Shetty versus Suresh Anant Sawant & Another,9 that,
“for payment of the stamp duty, the date of execution of the instrument
would be a relevant and for levying the penalty the date when such
instruments in Section 34 (a) (ii) is concerning penalty.”
31. It must be mentioned that in Hemendra Rasiklal Ghia versus Subodh
Modi,10 it has been held that the objection as regards whether the document
is sufficiently stamped or not will have to be decided as soon as it is raised. It
cannot be postponed.
32. Opportunity to pay deficiency to be given- Persons producing instrument not
duly stamped is not required by law to deposit at the same time the amount of
stamp and penalty required. After the Court decides that the document is
insufficiently stamped, the Court should give opportunity to pay the amount of
stamp duty and penalty. The court cannot without giving such opportunity hold
that the document is inadmissible and reject it from evidence. When the
plaintiff has shown his willingness to pay the amount, even in appeal the
document will be admitted in evidence.
33. Liability to pay duty and penalty- Mere production of an unstamped document
does not enable the Court to levy duty and penalty. It is only when the party to
the suit or proceeding wants it to be admitted in evidence; the Court can levy
duty and penalty. As to liability of payment of stamp and penalty, in Marine
Container Services v/s. Rajesh,11 it has been held that,
9 2008 (4) AIR Bom. R. 440
10 2008(6) MhLJ 886
11 2001(4) MhLJ 353
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“At the interim stage as the document was on stamp paper, it could not
be brushed aside on the ground that it was insufficiently stamped and
the Court could not decline interim relief or Court cannot at the stage of
considering the application for interim relief be stopped in its track
unless it first considers the question whether the document is
sufficiently stamped or not. If the document is found to be insufficiently
stamped, when the document is produced for being admitted in
evidence, the Court can impound the document and recover the
required stamp duty”.
34. In Santosh v/s. Pukharaj,12 it has been held that,
“When a document is sought to be tendered in evidence before the
Court, if it is found that the document/instrument is not sufficient
stamped, it is the duty of the Court to impound the said document in
accordance with section 33 of the Bombay Stamp Act. No power is
conferred on the court to determine the stamp duty chargeable in
respect of any instrument. The said power is vested in the Collector.
Jurisdiction of the Civil Court is confined to recording a finding on the
question whether an instrument is duly stamped. The Civil Court cannot
determine the stamp duty payable on a particular instrument. After
impounding the document, the Court is under an obligation to send a
true copy of the said document to the adjudication of the Collector in
accordance with sub-section(3) of section 32-A of the said Act. Only
after adjudication is made by the Collector, the party relying upon the
document will have to pay deficit stamp duty and penalty. After a
certificate issued by the Collector regarding compliance with the
requirement of payment of deficit stamp duty and penalty, Civil Court
can exercise power under proviso (a) to section 34 of the said Act.
Thereafter, the document can be admitted in evidence if the same is
proved and if it is otherwise admissible in evidence. There is nothing
wrong if a party relying upon a document applies for impounding his
own document to enable the Court to exercise power under proviso (a)
to section 34. In the present case, though the trial Court was justified in
impounding the document, further exercise made by the trial Court of
determining of deficit stamp duty and penalty is without jurisdiction
and to that extent, impugned order will have to be modified”.
35. In Gayabai v/s. Hiraman,13 it has been held that
12
2010(4) Mh.L.J. 22 (Bom) 13
2011(4) MhLJ 798
Page 16 of 34
“Photocopy of the document cannot be termed as an ‘instrument’
within the meaning of section 2(14) of the Indian Stamp Act, 1899 or
section 2(l) of the Stamp Act, 1958 and the provisions of Section 33 of
the Stamp Act cannot be made applicable in respect of copy of the
document.”
36. Section 35 of Stamp Act becomes applicable only after an instrument is
admitted in evidence. Thereafter, the instrument has to be acted upon as a
document duly stamped. Once a document is admitted rightly or wrongly in
evidence, it is not permissible to the Court at subsequent stage, whether it is
court of appeal, or revision or trial Court, to reject it as not duly stamped. If the
document after admission in evidence is discovered to be insufficiently
stamped, then the only course is, to take action under section 58, calling upon
the party to pay duty and penalty, but the decree based on such document will
stand. The word ‘instrument’ in section 35 means original instrument. Not duly
stamped document, once admitted in evidence, its admissibility cannot be
questioned. If the Court in appeal, however, finds that the document admitted
in evidence is not duly stamped, or chargeable to duty, it may record a
declaration and determine the amount of duty and penalty impound the
instrument and send it to the Collector. Section 35 of Stamp Act is in the nature
of a penal provision and has far-reaching effects. But so far the suit is
concerned; the decree passed on the basis of insufficiently stamped instrument
will be confirmed. In Javer Chand v/s. Pukhraj Surana,14 it has been held
that,
“Where an instrument has been admitted in evidence, such admission
shall not, except as provided in section 61, be called in question at any
stage of the same suit or proceeding on the ground that the instrument
has not been duly stamped.”
Conclusion:
37. Therefore, it can be concluded that an unregistered document is weak kind of
evidence. It can be used as collateral evidence. An unregistered document is
14
AIR 1961 SC 1655
Page 17 of 34
liable to be impounded by the Court before which it is presented as evidence.
After completion of process of impounding of document, the document can be
read in evidence. The testimony of the witness on the said document shall start
after undertaking said entire procedure. Merely exhibiting a document does
not serve any purpose, no matter, whether it is unregistered or a registered
document.
---0---
Page 18 of 34
Common intention, Common Object, Abetment and Conspiracy:
Introduction:
39. Generally and ordinarily the person, who actually commits the offence is
considered as the offender. However, there are instances showing that apart
from the real offender, some other one also works for commission of an
offence and his act may be direct or indirect. Bearing in mind the involvement
of such other person in commission of an offence, provisions have been made
in the Indian Penal Code (to be terse, hereinafter referred to as ‘IPC’) to punish
such other person. In IPC, there are terms like ‘Common Intention’, ‘Abetment’,
‘Conspiracy’ and ‘Common Object’. They are found respectively in sections 34,
109, 120-B and 149 of the IPC. Though they have same pivotal point, still they
have distinct periphery. These concepts are interlaced with each other. To
understand them, it is necessary to explore them, one by one.
Common Intention; section 34 of IPC:
40. Oxford Dictionary provides meaning of ‘intention’ as ‘conceptions formed by
directing the mind towards an object as aim or plan’. New Webster’s
dictionary defines intention as ‘determination about an action or result’. In
Iyer’s Judicial Dictionary, meaning of intention is provided as ‘fixed direction of
the mind to particular object or a determination to act in a particular
manner’. So, intention relates to the capacity of the mind to refer to different
kinds of objects. It is the resolve or design with which a person does or refrains
from doing an act.
41. The general rule in the criminal law is that there is no vicarious liability. This
reflects the general principle that a crime is composed of both an actus reus
(the Latin tag for ‘guilty act’) and a mens rea (the Latin tag for ‘guilty mind’).
Another principle is that a person should only be convicted if he or she is
directly responsible for causing both elements to occur at the same time. This
section 34 of IPC is intended to meet cases in which it may be difficult to
distinguish the acts of the individual member of a party or to prove exactly
Page 19 of 34
what part was taken by each of them in furtherance of common intention of all.
It is an intention to commit the crime actually committed and each accused can
be convicted of that crime only, if he has participated in the commission of the
offence with the intention to commit the actual crime which was committed.
42. To constitute common intention, it is necessary that the intention of each one
of them was known to the rest of them and was shared by them. The test to
decide if the intention is common is to see whether the intention of one was
known to the other and shared by that other. The true rule of law which is to be
applied is the rule which requires that guilt is not to be inferred unless that is
the only inference which follows from the circumstances of the case and no
other innocuous inference can be drawn.
43. Section 34 has been enacted on the principle of joint liability in the doing of a
criminal act. Section 34 is only a rule of evidence and does not create a
substantive offence, i.e. a distinct offence. It means that if two or more persons
intentionally do a thing jointly, it is just the same as if each of them has done it
individually. The common intention requires a prior concert or a pre-planning. It
is the intention to commit the crime and the accused can be convicted only if
such an intention has been shared by all the accused. Such a common intention
should be anterior in point of time to the commission of the crime, but may
also develop at the instant when such crime is committed. The distinctive
feature of the section is the element of participation in action. The liability of
one person for an offence committed by another in the course of criminal act
perpetrated by several persons arises under Section 34 if such criminal act is
done in furtherance of a common intention of the persons who join in
committing the crime.
44. Direct proof of common intention is seldom available and, therefore, such
intention can only be inferred from the circumstances appearing from the
proved facts of the case and the proved circumstances. Many times, confusion
occurs about two terms; ‘similar intention’ and ‘common intention’. There is
Page 20 of 34
very thin line of demarcation in between these two concepts. Privy Council and
Honourable Supreme Court of India had dealt with this distinction. In case of
Mehboob Shaha versus Emperor,15 it has been observed that,
“Care must be taken not to confuse same or similar intention with
common intention; the partition which divides their bounds is often
very thin. Nevertheless the distinction is real and substantial and if
overlooked will result in miscarriage of justice.”
45. Explaining the difference between two concepts; Honourable Apex Court in the
case of Pandurang versus State of Hyderabad,16 observed that,
“Several persons can simultaneously attack a man and each can have
the same intention, namely the intention to kill and each can
individually inflict a separate fatal blow and yet none would have the
common intention required by the section because there was no plan. In
a case like that, each would be individually liable for whatever injury he
caused but none could be vicariously convicted for the act of any of the
others and if the prosecution cannot prove that his separate blow was a
fatal one he cannot be convicted of the murder however clearly an
intention to kill could be proved.”
46. It is difficult to prove charge under this section. It can be proved from the
circumstance of the case, manner in which the act has been committed, part
played by each of the accused, etc. The object of the charge is to warn the
accused person of the case he is to answer. Therefore, omission to mention
section 34 in the charge cannot affect the case unless prejudice is shown to
have resulted in consequence thereof.
47. Facts to be necessarily proved:
a. That there was the meeting of all accused prior to the incident.
b. That all the persons who participated in the said meeting held on particular
date and place intended to commit the crime.
c. That all the accused participated in the commission of crime.
d. That criminal act was accordingly done.
15
AIR 1945 Privy Council 118. 16
AIR 1955 SC 216
Page 21 of 34
48. In order to bring home the charge of common intention, the prosecution has to
establish by evidence, whether direct or circumstantial, that there was plan or
meeting of minds of all the accused persons to commit the offence for which
they are charged with the aid of Section 34. Be it prearranged or on the spur of
moment; but it must necessarily be before the commission of the crime. The
existence of a common intention amongst the participants in a crime is the
essential element for application of this section. It is not necessary that the acts
of the several persons charged with commission of an offence jointly must be
the same or identically similar. The acts may be different in character, but must
have been actuated by one and the same common intention in order to attract
the provision.
49. The Section does not say “the common intentions of all”, nor does it say “an
intention common to all”. Under the provisions of Section 34 the essence of the
liability is to be found in the existence of a common intention animating the
accused leading to the doing of a criminal act in furtherance of such intention.
As a result of the application of principles enunciated in Section 34, when an
accused is convicted under Section 302 read with Section 34, in law it means
that the accused is liable for the act which causes death of the deceased in the
same manner as if it was done by him alone. The provision is intended to meet
a case in which it may be difficult to distinguish between acts of individual
members of a party who act in furtherance of the common intention of all or to
prove exactly what part was taken by each of them. Section 34 is applicable
even if no injury has been caused by the particular accused himself. For
applying Section 34 it is not necessary to show some overt act on the part of
the accused.
50. Thus, the practice of holding one person liable for the actions of another is the
exception and not the rule in criminal law. In other words, vicarious liability
assigns guilt, or criminal liability, to a person, for wrongful acts committed by
someone else. Vicarious or constructive liability can arise only where two
Page 22 of 34
conditions are fulfilled, (i) the mental element called the intention to commit
the criminal act conjointly with another and others, (ii) actual participation in
one form or the other in the commission of the offence. To convict an accused
under section 34 of IPC, it should be proved that the criminal act was done in
concert, pursuant to the prearranged plan. The dominant feature of this section
is the element of participation in action in or the other form. It need not be by
physical presence, common consent implies acting in consent.17
51. The first leading case in the point is Barendra Kumar Ghosh versus King
Emperor.18 It is also known as Shankari Tola Post Office Murder case. In this
case several persons appeared before the Sub-post master who was counting
the money on the table and demanded the money. In the meantime they
opened fire, killed the sub-post master and ran away without taking any
money. Barendra Kumar was, however, caught with a pistol in his hand and was
handed over to the police. The accused was tried under section 302 read with
34 as according to the prosecution he was one of the three men who fired at
the Sub-post master. The accused denied his charge on the ground that he was
simply standing outside and had not fired at the deceased. The trial court, on
being satisfied that the sub-post master was killed in furtherance of the
common intention of all, convicted the accused even if he had not fired the
fatal shot. Honourable High Court of Calcutta and the Privy Council both agreed
with the findings of the trial court and held the accused guilty of murder. Giving
his judgment LORD SUMNER quoting a line from Milton's famous poem, “ON
HIS BLINDNESS” said,
“even if the appellant did nothing as he stood outside the door, it is to
be remembered that in crimes as in other things they also serve who
only stand and wait.”
52. Thereafter, in Hardev Singh versus State of Punjab,19 it has been held that,
17
See: AIR 1970 SC 1266 and AIR 1980 SC 879 18
AIR 1925 Privy Council 1. 19
AIR 1975 SC 179
Page 23 of 34
“The view of the High Court that even the person not committing the
particular crime could be held guilty of that crime with the aid of
Section 34 of the Penal Code if the commission of the act was such as
could be shown to be in furtherance of the common intention not
necessarily intended by every one of the participants, is not correct. The
common intention must be to commit the particular crime,
although the actual crime may be committed by any one sharing
the common intention. Then only others can be held to be guilty”.
53. Thus what proposition follows from Section 34 is that the foundation of
constructive liability is the common intention of all and that common intention
is an intention to commit a crime actually committed and every one of the
accused should have participated in that intention, not only in design, but also
in action.
Common Object; section 149 of IPC:
54. Meaning of ‘object’ as per Oxford Dictionary is ‘a person or thing to which an
action or feeling is directed’ Collins dictionary provides meaning of object as ‘a
focus or target for feelings or an aim or purpose’. In legal parlance, intention
and object have their own distinctive features. In Maranadu and another
versus State by Inspector of Police, Tamil Nadu,20 it has been held that:
‘Common object' is different from `common intention' as it does not
require a prior concert and a common meeting of minds before the
attack. It is enough if each has the same object in view and their
number is five or more and that they act as an assembly to achieve that
object. The `common object' of an assembly is to be ascertained from
the acts and language of the members composing it, and from a
consideration of all the surrounding circumstances. It may be gathered
from the course of conduct adopted by the members of the assembly.
For determination of the common object of the unlawful assembly, the
conduct of each of the members of the unlawful assembly, before and at
the time of attack and thereafter, the motive for the crime, are some of
the relevant considerations. What was the common object of the
unlawful assembly is at a particular stage of the incident is essentially a
question of fact to be determined, keeping in view the nature of the
assembly, the arms carried by the members, and the behaviour of the 20
2008 (12) SCALE 420
Page 24 of 34
members at or near the scene of the incident. It is not necessary under
law that in all cases of unlawful assembly, with an unlawful common
object, the same must be translated into action or be successful. Under
the Explanation to Section 141, an assembly which was not unlawful
when it was assembled may subsequently become unlawful. It is not
necessary that the intention or the purpose, which is necessary to
render an assembly an unlawful one comes into existence at the outset.
The time of forming an unlawful intent is not material. An assembly
which, at its commencement or even for some time thereafter, is lawful,
may subsequently become unlawful. In other words it can develop
during the course of incident at the spot."
55. Section 149 of IPC creates a vicarious liability for the unlawful acts committed
pursuant to the common object by any other member of the assembly. The
basis of such constructive liability is mere membership of such assembly with
the requisite common object or knowledge. Therefore, once the court holds
that certain accused persons formed an unlawful assembly and an offence is
committed by any member of that assembly in prosecution of the common
object of that assembly, or such as the member of that assembly knew to be
likely to be committed in prosecution of that object, every member of that
unlawful assembly is to be held guilty of that offence. After such a finding it
would not be open to the court to see who actually did the offensive act or
require the prosecution to prove which of the members did the offensive acts.21
When an offence is committed in prosecution of the common object, it would
generally be an offence which the members of the unlawful assembly knew was
likely to be committed in prosecution of the common object. The word “knew”
used in the second branch of the section implies something more than a
possibility and it cannot be made to bear the sense of “might have been
known”. Positive knowledge is necessary. The distinction between two parts of
section 149 of IPC cannot be ignored or obliterated.
56. In every case it would be an issue to be determined, whether the offence
committed falls within the first part or it was an offence such as the members
21
See: Lalji V. State of U. P., AIR 1989 SC 754.
Page 25 of 34
of the assembly knew to be likely to be committed in prosecution of the
common object and falls within the second part. Common object of an unlawful
assembly has to be inferred from facts and circumstances disclosed. A common
object may be formed by express agreement after mutual consultation, but
that is by no means necessary, it may be formed at any stage by all or few
members of the assembly and the other members may just join and adopt it.
Once formed, it need not continue to be the same. It may be modified or
altered or abandoned at any stage. Though no hard and fast rule can be culled
out, it may be reasonably collected from the nature of the assembly, arms it
carries and behaviour at or before or after the scene of incident.
57. Elements Of Section 149: The essence of offence under Section 149 is assembly
of several (five or more) persons having one or more of the common objects
mentioned in Section 141. Section 149 creates joint liability of all members of
an unlawful assembly for criminal act done by any member in prosecution of
the common object of the said assembly. So the essential ingredients of Section
149 are:
a. There must be an unlawful assembly, as defined in Section 141;
b. Criminal act must be done by any member of such assembly;
c. Act done is for prosecution of the common object of the assembly or such
which was likely to be committed in prosecution of the common object;
d. Members have voluntarily joined the unlawful assembly and knew the
common object of the assembly.
e. Mere presence and sharing of common object of the assembly makes a
person liable for the offence committed even if he had no intention to
commit that offence.
58. The words ‘in prosecution of the common object’ show that the offence
committed was immediately connected with the common object of the
unlawful assembly of which accused were members. The act must have been
done with a view to accomplish the common object of the unlawful assembly.
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In Queen v. Sabid Ali,22 the words ‘in prosecution of the common object’ were
construed as meaning ‘with a view to achievement of the common object’.
Honurable Supreme Court of India has explored and explained concept ‘in
prosecution of the common object’ in case of Ram Chandran and others
versus State of Kerala,23 as,
“The words ‘in prosecution of the common object’ do not mean ‘during
the prosecution of the common object of the assembly’. It means that
the offence committed was immediately connected with the common
object of the assembly or the act is one which upon the evidence
appears to have been done with a view to accomplish a common object
attributed to the members of the assembly. These words are to be
strictly construed as equivalent to “in order to attain common object.”
59. The presence of the accused as a part of unlawful assembly is sufficient for his
conviction. Specific overt act is not required to be established. Honourable
Supreme Court has discussed this legal position in respect of the several
categories of cases which may fall to be tried when charge under Section 149 is
to be framed, in the matter of Mohan Singh and another Vs. State of
Punjab24.
60. Thus, the proposition, which can be drawn, is that under Section 149, though
an offence is committed by any member of an unlawful assembly of five or
more persons in prosecution of the common object of the assembly, then each
of the members of the unlawful assembly irrespective of the participation in
the commission of the act shall be constructively liable for the act.
Abetment; section 107, 109 and 114 IPC:
61. Abetment is constituted by (i) instigating a person to commit an offence; or (ii)
engaging in a conspiracy to commit it; or (iii) intentionally aiding a person to
commit it.
62. Abetment by instigation-First clause- A person is said to 'instigate' another to
an act, when he actively suggests or stimulates him to the act by any means of 22
11 BLR 347 23
2011 (9) SCC 257 24
AIR 1963 SC 174
Page 27 of 34
language, direct and indirect, whether it takes the form of express solicitation,
or of hints, insinuation or encouragement. The word 'instigate' means to goad
or urge forward or to provoke, incite, urge or encourage doing an act. The word
''instigate'' as used in s.107 cannot be restricted to the use of actual words. It
has to be given wider meaning commensurate with common experience of life.
The word ''instigate'' literally means to provoke, incite, urge on or bring about
by persuasion to do anything. The abetment may be by instigation, conspiracy
or intentional aid as provided in the three clauses of the section. There must be
reasonable certainty in regard to the meaning of the word used by the 'inciter',
but the actual words need not be proved. Advice per se does not necessarily
amount to instigation. Instigation necessarily connotes some active suggestion
or support or stimulation to the commission of the act itself. Advice amounts to
instigation only if it was meant actively to suggest or stimulate the commission
of an offence. Instigation may be of an unknown person. A mere acquiescence
or permission does not amount to instigation.
63. Explanation 1 to this section says that a person who (1) by willful
misrepresentation, or (2) by willful concealment of a material fact which he is
bound to disclose, voluntarily causes or procures, or attempts to cause or
procure a thing to be done, is said to instigate the doing of that thing.
64. Abetment by conspiracy--Second clause- 'Conspiracy' consists in the agreement
of two or more [persons] to do an unlawful act, or to do a lawful act by
unlawful means. So long as such a design rests in intention only, it is not
indictable. When two agree to carry it into effect, the very plot is an act in itself,
and the act of each of the parties, promise against promise, actus contra actum,
capable of being enforced, if lawful, is punishable if for a criminal object or for
the use of criminal means. It is not necessary that the abettor should concert
the offence with the person who commits it. It is sufficient if he engages in
conspiracy in pursuance of which the offence is committed. Where parties
concert together, and have a common object, the act of one of the parties,
Page 28 of 34
done in furtherance of the common object and in pursuance of the concerted
plan, is the act of all.
65. Abetment by aid-Third clause- A person abets by aiding when by act done
either prior to, or at the time of, the commission of an act, he intends to
facilitate, and does in fact facilitate, the commission thereof. For instance, the
supplying of necessary food to a person known to be engaged in crime is not
per se criminal: but if food were supplied in order that the criminal might go on
a journey to the intended scene of the crime, or conceal himself while waiting
for an opportunity to commit the crime, the supplying of food would be in
order to facilitate the commission of the crime and might facilitate it. In order
to constitute abetment by aiding within the meaning of the third paragraph of
section 107 IPC the abettor must be shown to have intentionally aided the
commission of the crime. A person may invite another casually or for a friendly
purpose and that may facilitate the murder of the invitee. But unless it is shown
that the invitation was extended with a view to facilitate the commission of the
murder, it cannot be said that the person extending the invitation had abetted
the murder.
66. Every abetment must of course precede the commission of the offence
abetted. There is, however, a difference between an abetment which is done at
the time the principal offence is committed i.e. on the spur of the moment, and
one, that is done prior to and independently of the commission of the offence.
If abetment is divided into these two kinds, it follows that while abetment by
instigation and abetment by intentionally aiding the offence can both be done
either immediately before the commission of the offence or prior to it, whereas
abetment by conspiracy can hardly be committed at the time of the
commission of the offence.25
67. Abetment involves active complicity on the part of the abettor at a point of the
time prior to the actual commission of the offence. It is of the essence of the
25
See: Sital versus Emperor AIR 1935 Oudh 468.
Page 29 of 34
crime of abetment that the abettor should substantially assist the principal
culprit towards the commission of the offence. A person is said to instigate
another to an act, when he actively suggests or stimulate him to the act by any
means or language, direct or indirect. It is immaterial whether instigation be
personal or through the intervention of a third person. A person may constitute
himself an abettor by the intervention of third person without any direct
communication between himself and the person employed to do the thing.
68. To prove the offence of abetment, it is necessary to prove abetment and the
act abetted was committed in the consequence of the abetment. There can be
abetment of an abetment. The abetment of an abetment is an offence when
particular abetment was an offence. Such would be the case where third
person intervenes between the abettor and the actor. In such a case all that is
required is that the substantive abetment must be the abetment of an offence.
69. Section 109 of the IPC deals with a case of abetment for which no express
provision is made by the IPC. In other words, section 109 does not apply to a
case for which express provision, in respect of abetment is made, for example
Sections 110 to 120, 121, 123, 130, 132, 134, 136, 305 and 306 of the IPC. The
reason is simple, i.e. section 109 contemplates a distinct offence. Thus what
appears from section 109 is that the abettor is not held constructively liable like
under section 34 and section 149 of the IPC. He is held liable by reason of his
assistance to another to put in execution his criminal intention and the
punishment for abetment of an offence is a punishment prescribed for the
abetted offence.
70. An abettor is liable to the same punishment as that which may be inflicted on
the principal offender, (i) if the act of the latter is committed in consequence of
the abetment, and (ii) no express provision is made in the Code for the
punishment of such an abetment. This section is applicable even if the abettor
is not present when the offence abetted is committed provided that he has
instigated the commission of the offence or has engaged with one or more
Page 30 of 34
other persons in a conspiracy. Failure to prevent the commission of an offence
is not an abetment of that offence. There is a distinction between section 109
and 114 of IPC. Section 114 applies where a criminal first abets an offence to be
committed by another person, and is subsequently present at its commission.
Active abetment at the time of committing the offence is covered by section
109 and section 114 is clearly intended for an abetment previous to the actual
commission of the crime, that is, before the first step has been taken to commit
it.
Criminal Conspiracy; section 120B of IPC:
71. The term conspiracy means a secret plan by a group to do something unlawful
and harmful or something which is not unlawful but by unlawful means.
According to Stephen, ‘when two or more persons agree to commit any crime,
they are guilty of conspiracy whether the crime was committed or not’. It is
not necessary in order to constitute a conspiracy that the acts agreed to be
done should be acts which if done should be criminal. A conspiracy consists of
unlawful combination of two or more persons to do that which is contrary to
law or to do that which is wrongful towards other persons. A mere agreement
to commit an offence becomes criminal conspiracy. In IPC section 120A the
term conspiracy has been defined as ‘When two or more persons agree to do,
or cause to be done, an illegal act or an act which is not illegal but by illegal
means, such an agreement amounts to criminal conspiracy’. Honourable
Supreme Court has also defined conspiracy in Bhagwant Swarup versus
State of Maharashtra,26 as “two or more corrupt persons agreeing together
to do, by concerted action, something unlawful either as a mean or as an end”.
72. In Haradhan Chakrabarty v/s. Union of India,27 it has been laid down that,
“Two or more persons must be parties to such an agreement and one
person alone can never be held guilty of criminal conspiracy for the
simple reason that one cannot conspire with oneself”.
26
AIR 1965 SC 682 27
AIR 1990 SC 1210
Page 31 of 34
73. Thus the conspiracy is a kind of agreement to do an unlawful act, or a lawful act
by unlawful means. Being contrary to law the conspiracy is always hatched in
secrecy, and executed in darkness of the facts. The agreement is the gist of the
offence. In order to constitute a single general conspiracy, there must be
common design and common intention of all to work in furtherance of the
common design. Each conspirator plays his separate part in one integrated and
united effort to achieve the common purpose. The conspiracy may develop in
successive stages. There may be a general plan to accomplish the common
design by such means as may from time to time be found expedient.28
74. Broad principles governing the law of conspiracy-
75. Some of the broad principles governing the law of conspiracy are summarized
in Rajiv Gandhi assassination case i.e State through Superintendent of
Police, CBI/SIT versus Nalini and others,29 are as under:-
Under Sec.120-A, offence of criminal conspiracy is committed when two
or more persons agree to do or cause to be done an illegal act or legal
act by illegal means. When it is a legal act by illegal means overt act is
necessary. Not only the intention but also there had to be agreement to
carry out the object of the intention, which is an offence
a. Acts subsequent to the achieving of the object of conspiracy may
tend to prove that a particular accused was a party to the
conspiracy.
b. Conspiracy is hatched in private or in secrecy. It is rarely possible to
establish a conspiracy by direct evidence. Usually, both the existence
of the conspiracy and its objects have to be inferred from the
circumstances and the conduct of the accused.
c. It is not a part of the crime of conspiracy that all the conspirators
need to agree to play the same or an active role.
d. When two or more persons agree to commit a crime of conspiracy,
then regardless of making or considering any plans for its
commission, and despite the fact that no step is taken by any such
28
See: Hussain Umar versus Dalip Sinhji AIR 1970 SC 45. 29
(1999) 5 SCC 253 at page 515-518
Page 32 of 34
person to carry out their common purpose, a crime is committed by
each and every one who joins in the agreement.
e. A charge of conspiracy may prejudice the accused because it forces
them into a joint trial. Introduction of a evidence against some may
result in the conviction of all, which is to be avoided.
f. It is the unlawful agreement which is the gravamen of the crime of
conspiracy and the offence is complete even though there is no
agreement as to the means by which the purpose is to be
accomplished. The unlawful agreement which amounts to a
conspiracy needs to be formal or express, but may be inherent in
and inferred from the circumstances, especially declarations, acts
and conduct of the conspirators. The agreement need not be entered
into by all the parties to it at the same time, but may be reached by
successive actions evidencing their joining the conspiracy.
g. A criminal conspiracy may be termed as a partnership in crime
inasmuch as any act done by any of the conspirators pursuant to the
agreement is, in contemplation of law, the act of each of them and
they are jointly responsible therefor. The responsibility of the
conspirators extends not only to what is done by any of the
conspirators pursuant to the original agreement but also to
collateral acts incidental to and growing out of the original purpose.
The joinder of a conspiracy by a new member does not create a new
conspiracy nor does it change the status of other conspirators, and
the mere fact that conspirators individually or in groups perform
tasks to a common end does not split up a conspiracy into several
different conspiracies.
h. A man may join a conspiracy by word or by deed. However, criminal
responsibility for a conspiracy requires more than a merely passive
attitude towards an existing conspiracy. One who commits an overt
act with knowledge of the conspiracy is guilty. And one who tacitly
consents to the object of a conspiracy and goes along with other
conspirators, actually standing by while the others put the
conspiracy into effect, is guilty though he intends to take no effective
part in the crime.
76. Before addition of Section 120-A and Section 120-B to IPC, conspiracy to
commit offences was not punishable. It became punishable as an abetment, if
the offence was actually committed. This is evident from the language of
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Section 107, which defines abetment. Hence, it is necessary to know the
distinction between them. The offences created by Sections 109 and 120-B of
IPC are quite distinct. There is no analogy between them. There may be an
element of abetment in conspiracy, but conspiracy is something more than an
abetment. Conspiracy to commit an offence is itself an offence and a person
can be separately charged of such conspiracy.
77. Comparative chart of the four sections-
Sr.No. section 34 section109 section120-B section149
1 Enacted a rule of co-extensive culpability when offence is committed by more than one accused
There must be abetment of an offence
Consists in the very agreement between 2 or more persons to commit a criminal offence
Creates a specific offence and postulates of 5 or more persons having a common object
2 Element of participation in action which is the leading feature of the section
The act abetted must have been committed in consequence of the abetment
Punishment for the offence depends upon whether the illegal act has or has not been carried out
Though there is common object, the intentions of several members may differ and indeed may be similar
3 section 34 does not create an offence and provisions thereof merely lay down a rule of law
There must be no express provision made in the Code for the punishment of such abetment
Participation in the conspiracy may not be beyond assent to the agreement.
Creates a definite head of criminality
4 Punishment will be same as for the offence itself.
Punishment will be same as for the offence itself.
Separate punishment is provided.
Common object of the members is the basis.
5 A single person can be convicted because each is responsible for the acts of all others.
Single person can be convicted only for this section, since his act is independent.
Single person can be convicted only for this section, since his act is independent.
If others acquitted, only one accused cannot be convicted under this section.