Topandas vs The State Of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 42 of 1955

Decision Date: 14 October 1955

Coram: Natwarlal H. Bhagwati, Bhuvneshwar P. Sinha

In the matter titled Topandas versus the State of Bombay, the Supreme Court of India issued its judgment on 14 October 1955. The opinion was authored by Justice Natwarlal H. Bhagwati, who was joined on the bench by Justice Bhuvneshwar P. Sinha. The petitioner is identified as Topandas, while the respondent is the State of Bombay. The case is reported in the 1956 All India Reporter at page 33 and in the 1955 Supreme Court Reports, volume five, page 881. The statutory provisions discussed include sections 120-A and 120-B of the Indian Penal Code, which relate to criminal conspiracy.

The headnote of the judgment explains that, under section 120-A of the Indian Penal Code, a criminal conspiracy must involve two or more persons; a single individual cannot be convicted of conspiracy because one cannot conspire with oneself. Accordingly, when four individuals were charged under section 120-B for an alleged conspiracy and three of those individuals were acquitted, the fourth individual could not be held liable for the conspiracy offence.

The case before the Court was Criminal Appeal No. 42 of 1955, filed by special leave from the judgment and order dated 8 October 1954 of the Bombay High Court in Criminal Appeal No. 315 of 1954. That High Court decision arose from the judgment and order dated 6 January 1954 of the Court of the Fourth Presidency Magistrate, Bombay, in Cases Nos. 639-640/P-1955. Counsel for the appellant comprised H. J. Umrigar, J. B. Dadachanji and Rajinder Narain, while counsel for the respondent consisted of Porus A. Mehta and P. G. Gokhale. The Court’s opinion was delivered by Justice Bhagwati.

The appellant, designated as Accused No. 1, along with Accused Nos. 2, 3 and 4, were alleged to have participated in a criminal conspiracy in Bombay between approximately June 1950 and November 1950. The prosecution alleged that the conspirators agreed to commit several illegal acts. First, they were said to have used forged bills of entry, including documents identified as Exhibit Z. Second, they were accused of misleading the Deputy Chief Controller of Imports, Bombay, by fraudulently inducing the officer to issue to the firm J. Sobhraj & Co. an import licence numbered 248189/48 for the importation of cycles from the United Kingdom, valued at Rs. 1,98,960. Third, they were charged with deceiving the same official to obtain licence number 203056/48 for the importation of watches from Switzerland, valued at Rs. 3,45,325. Fourth, they were alleged to have fraudulently induced the officer to issue licence number 250288/48 for the importation of artificial silk piece goods from Switzerland, valued at Rs. 12,11,829. The prosecution contended that these illegal acts were performed in furtherance of the alleged agreement and that the accused thereby committed an offence punishable under section 120-B of the Indian Penal Code.

It was held that the illegal acts described earlier were carried out in execution of the agreement concluded among the accused and that, consequently, each accused had committed an offence punishable under section 120-B of the Indian Penal Code. In addition, the prosecution had framed charges against all the accused under section 471 read with section 465 and section 34, as well as under section 420 read with section 34 of the Indian Penal Code, for each of the three illegal acts mentioned. The learned Presidency Magistrate of the 23rd Court at Esplanade, Bombay, conducted the trial of all the accused for the aforementioned offences and ultimately acquitted each of them. The State of Bombay then filed an appeal before the High Court of Judicature at Bombay. The High Court set aside the magistrate’s acquittal of accused No. 1, finding him guilty of every charge that had been framed, including the offence under section 120-B. The acquittals of accused Nos. 2, 3 and 4 were upheld. Although the High Court acquitted accused Nos. 2, 3 and 4 of the charge under section 120-B, it expressed the view that the deed of assignment produced by accused No. 1 as part of his defence was a fabricated document. The Court concluded that the deed, together with its accompanying papers, had either been forged or had been obtained through the knowledge or connivance of accused No. 1 and his alleged co-conspirators, and it was impossible to believe that a conspiracy executed with such careful planning could have been the work of accused No. 1 alone.

The record, however, did not contain any evidence that would permit the inference that accused No. 1 had acted in concert with any other co-conspirators; the only evidence related to the various acts alleged to have been performed by accused Nos. 2, 3 and 4 in furtherance of the conspiracy. When the High Court turned to the question of the sentence to be imposed on accused No. 1, who had nonetheless been convicted of the offence under section 120-B, it observed that the conspirators, whoever they might have been, had displayed considerable ingenuity and daring in pursuing the object of the conspiracy. The Court further noted that the motive was not a situation of financial distress or other hardship, but a greed for a large sum of money, a circumstance that could not be regarded as an extenuating factor. Accordingly, the High Court directed that accused No. 1 should undergo rigorous imprisonment for a period of eighteen months for the offence punishable under section 120-B. Accused No. 1’s application for leave to appeal to the Supreme Court was rejected by the High Court, after which he successfully obtained special leave to appeal the High Court’s decision. The special leave, however, was confined strictly to the legal question of whether a conviction under section 120-B could be sustained when the other alleged conspirators had been acquitted.

In the present appeal, the question was whether a conviction under section 120-B of the Indian Penal Code could be sustained against the sole remaining accused when the other three persons named in the same indictment had been acquitted. The indictment under section 120-B had been framed against four specifically named individuals, identified as accused numbers 1, 2, 3 and 4. The charge was therefore directed only at those four persons and did not contemplate the involvement of any other unknown conspirators. Consequently, when accused numbers 2, 3 and 4 were found not guilty of the alleged conspiracy, only accused number 1 remained standing before the Court for consideration of liability under the same provision.

The Court examined the statutory definition of criminal conspiracy contained in section 120-A, which provides: “When two or more persons agree to do or cause to be done (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.” By the very terms of this definition, the existence of at least two participants is an essential element of the offence. It is a well-settled principle that a single individual cannot conspire with himself, and therefore cannot be convicted of criminal conspiracy in the absence of another party to the agreement.

Applying this principle to the present facts, the Court held that if an indictment charges four persons with an offence under section 120-B and three of those persons are acquitted, the remaining accused, namely accused number 1, cannot be held guilty of the conspiracy, because the requisite element of a joint agreement is missing. The Court cited the authority found in Archbold’s Criminal Pleading, Evidence and Practice, 33rd edition, page 201, paragraph 361, which states that when several prisoners are indicted for a conspiracy and the jury acquits all but one, that lone accused must also be acquitted unless the indictment specifically alleges that he conspired with some other person who was not tried under the same indictment. The passage further refers to several English cases, including R v Thompson, R v Manning, and R v Plummer, to illustrate that a conviction on a conspiracy charge cannot stand if the collaborative element is not proven against the convicted individual.

The Court also referred to the case of King v Plummer ([1902] 2 K.B. 339), which involved an indictment of three persons for joint conspiracy. In that case, one defendant pleaded guilty and a judgment was entered against him, while the other two were acquitted. The Court observed that the judgment against the guilty plea was invalid, reinforcing the principle that a conviction for conspiracy requires proof of a conspiracy involving at least two persons tried together.

The Court noted that the judgment in the earlier case could not be sustained. Lord Justice Wright, writing at page 343, explained that there existed considerable authority indicating that if the appellant had entered a plea of not guilty to a charge of conspiracy and the trial of the three defendants had proceeded together on that charge, a conviction of the appellant alone while the alleged co-conspirators were acquitted would be impossible. He reasoned that such a verdict would be contradictory because it would be necessary to find a criminal agreement between the appellant and the others while simultaneously finding no agreement among the others and the appellant. He referred to the decision in Harrison v. Errington (Popham, 202), where an indictment of three persons for riot resulted in two acquittals and one conviction; the error was held to produce a “void verdict” and was likened to the case cited in 11 Hen. IV, c. 2, where a conspiracy against two persons was judged void when only one was found guilty, because a single person cannot alone constitute a conspiracy.

Lord Justice Bruce, at page 347, endorsed the statement found in the second edition of Chitty’s Criminal Law, volume III, page 1141, which held that where every defendant named in an indictment is acquitted except one, and the indictment does not allege a conspiracy with unnamed persons, the conviction of that lone defendant must be invalid and no judgment may be entered against him. Lord Justice Bruce further observed that the crucial point of the passage rested on the fact that all the accused were charged in the same indictment. He argued that, by the very nature of the offense of conspiracy, if two or more individuals are charged together for conspiring with another, and the indictment contains no allegation that they conspired with persons outside the indictment, then the acquittal of all but one of the named persons precludes a valid judgment against the remaining individual. This holds whether the conviction arose from a jury verdict or from the individual's own confession, because the record of conviction must be framed within the terms of the indictment; otherwise it would be inherently inconsistent, contradictory, and void on its face. He emphasized that the essence of conspiracy is that two or more persons combine, confederate, and agree together to accomplish the object of the conspiracy.

The Court also pointed out that this principle had been accepted in Indian jurisprudence. In Gulab Singh v. The Emperor (A.I.R. 1916 All. 141), Justice Knox, relying on the earlier King v. Plummer decision, held that a prosecution for conspiracy must demonstrate that at least two persons agreed to the conspiratorial purpose and that a conspiracy cannot exist involving a single individual. A similar view was expressed in King-Emperor v. Osman Sardar (A.I.R. 1924 Cal. 809), where Chief Justice Sanderson observed that the core of the offence under section 120-B was the mutual assent of both accused parties; consequently, when a jury found that one of the accused was not a party to the agreement and acquitted him, the other accused could not be convicted of the same charge because the agreement required the participation of both. This line of authority reinforced the position that where three persons are charged with entering into a conspiracy and two are acquitted, the remaining person cannot be convicted, whether the conviction arises from a jury verdict or a confession.

In the course of this matter the Court observed that the offence under section 120-B of the Indian Penal Code requires the existence of an agreement between two or more persons. Accordingly, when a jury determined that one of the two alleged participants was not a party to the agreement and acquitted that individual of the charge, the logical consequence was that the remaining participant could not be held guilty of the same charge. The Court emphasized that the assent of both persons is an essential element for the formation of the agreement which underlies the charge of conspiracy. The learned author Ratanlal, in his eighteenth edition of the Law of Crimes (page 270), summarised the legal position that emerges from the earlier authorities by stating that when three persons are charged with entering into a conspiracy and two of them are acquitted, the third individual cannot be convicted of conspiracy whether the conviction is based on a jury verdict or on the accused’s own confession. This principle makes clear that a conviction for conspiracy cannot stand if any of the alleged co-conspirators have been found not guilty of the same offence.

Applying this rule to the present case, the charge under section 120-B had been framed against accused numbers 1, 2, 3 and 4. Since accused numbers 2, 3 and 4 were each acquitted of the conspiracy charge, the Court held that accused number 1 could not lawfully be convicted of the offence under section 120-B of the Indian Penal Code. In the Court’s opinion, the conviction of accused number 1 for that charge was therefore illegal. Consequently, the appeal filed by accused number 1 was allowed to the extent that his conviction under section 120-B and the accompanying sentence of rigorous imprisonment for eighteen months were set aside and vacated. The Court expressly noted that it was not dealing with the convictions of accused number 1 under section 471 read with section 465, nor with his convictions for each of the three separate offences under section 420, together with the concurrent sentences of rigorous imprisonment for one year imposed by the lower courts for each of those offences. Those separate convictions and the associated sentences were affirmed and remain in force.