Decoding Criminal Conspiracy Under the PMLA, 2002: Challenges and Legal Perspectives
The Poulterers’ Case (1611) laid the groundwork for the later development of the term “criminal conspiracy” in contemporary criminology by defining and establishing, for the first time, what constitutes a reasonable standard for handling crimes involving multiple offenders who act either entirely or partially in accordance with an agreement they have established. Glanville William has opined that: “If the mere intention of one person to commit a crime is not criminal, why should the agreement of the two people to do it make it criminal? The only possible reply is that the law is fearful of numbers and that the act of agreeing to offend is regarded as such a decisive step as to justify its own criminal sanction.” However, mere conspiracy per se doesn’t lead to punishment, it is subject to the “Doctrine of Locus Poenitentiae”, which speaks about the mental situation of an offender who prepares for the commission of a crime but withdraws at last. In the same way, engaging into an agreement to commit an offence in itself does not lead to punishment, provided that the statute says otherwise. The Supreme Court in Leo Roy Frey V. Suppdt. Distt. Jail 1958 AIR 199, held that “the agreement for completion of an offence and conspiration about the same is different. The Court further held that the attempt or commencement of an offence is later to the conspiracy and it gets done even before the offence is attempted. Section 120-A of the Indian Penal Code,1860 defines criminal conspiracy as: When two or more persons agree to do or cause to be done,
(1) An illegal act, or
(2) 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.
The punishment for criminal conspiracy, vide Section 120-B, attracts the concept of vicarious liability i.e. every member who participated in such conspiracy to be deemed to have committed the same offence and to the same extent as been committed by any member being a participant of such agreement.
The Prevention of Money Laundering Act, 2002 (herein after PMLA Act, 2002) indeed keeps a great sort of concern with Section 120-B, as the Act punishes the White-Collar offenders who gets engaged themselves in unfair practices. The Act incorporates the provision to address the multiplicity of people involved in relation to any kind of money laundering and to provide for confiscation of property derived from, or involved in, money laundering and for matters connected therewith or incidental thereto. The Supreme Court in Rana Ayyub v. Enforcement Directorate
observed that a person is guilty of the offence in this Act if they:
(i) directly or indirectly attempt to indulge; or
(ii) knowingly assist; or
(iii) knowingly are a party; or
(iv) are actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projection as untainted property.
It shall be noted that “criminal conspiracy” is the subject matter of one of the scheduled offences which finds its mention in section 2(1)(y) of the PMLA Act, wherein the offences were segregated as per the Schedule mentioned as: –
- Part A
- Part B
- Part C
The criminal conspiracy in itself does not constitute any established crime in the PMLA Act, 2002, it is only a provision incorporated to catch and punish any kind of planning plotting done by more than one person in the commencement of any offence as prescribed by the said Act itself. A person only can’t be punished by solely committing criminal conspiracy without committing any schedule offence as mandated by the PMLA Act, 2002. But it is interesting to mention that as per section 2(1) of the PMLA Act, is that every crime which may generate proceeds of crime need not be a schedule offence. Therefore, only some specific offences have been included in the schedule.
The plot relating, to criminal conspiracy, was not established with such as ease. The ambiguity of whether criminal conspiracy mentioned in the PMLA, 2000 is a wide term and includes all offences, no matter mentioned in the schedule or only meant to those expressly mentioned in the Act of 2002, was quite complicated. The case touching the corner of the aforementioned issue is Vijay Madanlal Choudhary & Ors. v. Union of India &Ors (para 251 to 253) held that the existence of proceeds of crime is the existence of a Schedule offence. which deals with the issue wherein if the accused in the schedule offence is acquitted then he cannot be prosecuted for the offence of under the PMLA. However, the aforementioned case lacks consideration to the stance that the offences under 120-B of IPC, included in part A of schedule offence can be treated as a scheduled offence even if the criminal conspiracy alleged is to commit an offence which is not a part of the Schedule.
The Apex Court clinched the contingency in Pavana Dibbur v. The Directorate of Enforcement, the court held that the offences mentioned in the schedule of the PMLA,2002 sine qua non for attracting “criminal conspiracy”. Abhay S. OKA, J. from the Sentinel Qui Vie of India applied the strict rule of interpretation and quoted A Driedger, Construction of Statute, 2nd Edn, 1983: “The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the Scheme of the Act, the object of the Act, and the intent of the Parliament” and made it crystal clear that the offence punishable under Section 120B of the IPC will become a scheduled offence only if the conspiracy alleged is of committing an offence which is specifically included in the Schedule. The Supreme Court further held that the first property cannot be said to have any connection with the proceeds of the crime as the acts constituting scheduled offence were committed after the property was acquired. The apex court herein this case emphasised lenient interpretation to avoid the imposition of penal consequences. The same was done to protect the legislative intent and object of making only a few selected offences as schedule offences or otherwise the addition of schedule will become meaningless.
In conclusion, it is quite evident from the above discussion that the interpretation of criminal conspiracy proposed by the ED, wherein the conspiracy is an agreement to commit an offense, is not an aggravated offense, i.e., it only incorporates the principle of vicarious liability. Such interpretation not only defeats the legislative object of the statute but also makes it unconstitutional and arbitrary.
Information of Author
Name: Raees Sohail
Year: 4th year
College: Vivekananda Institute of Professional Studies (VIPS)
Information of Co-Author
Name: Sukoon Jha
Year: 3rd year
College: Calcutta University