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Tracing Development of Conciliation in India

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TRACING THE DEVELOPMENT OF CONCILIATION IN INDIA

ACKNOWLEDGEMENT
I would like to give sincere thanks to our director sir for giving me opportunity. I would also like to thanks evidence faculty Jagdeesh sir for guiding me throughout my project and giving valuable suggestions. Last but not the least, thanks to almighty for giving me strength to do this project.

TABLE OF CONTENTS 1. INTRODUCTION…………………………………………… PAGE 4-5 2. TEST OF CONSPIRACY……………………………………PAGE 5-6 3. RELEVANCY OF CONSPIRACY…………………………..PAGE 6-7 4. PRINCIPLE OF CONPIRACY…………………………… PAGE 7-9 5. EXISTENCE OF CONSPIRACY……………………………..PAGE 9-10 6. ADMISSIONS OF EVIDENCE OUTSIDE PERIOD OF CONSPIRACY... PAGE 11-12 7. INDIAN LAW WIDER THAN ENGLISH LAW………………… PAGE 12-14 8. RELATION WITH IPC……………………………………….PAGE 14-15 9. ACTS DONE BEFORE CONSPIRACY………………………..PAGE 15 10. CONSPIRACY HOW ESTABLISHED…………………………..PAGE 15 11. 185TH LAW COMMISSION REPORT AND SUGGESTIONS……..PAGE 15-19 12. CONCLUSION……………………………………………………………..PAGE 19-20 13. BIBLIOGRAPHY……………………………………………………….PAGE 21

INTRODUCTION
S.10 of Evidence Act:
Things said or done by conspirator in reference to common intention:-
“Where there is reasonable ground to believe that two or more person have conspired together to commit an offence or an actionable wrong, anything said, done, or written by any one of such person in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the person believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.”
This section talks about the things said, done or written by the conspirator in reference to common intention. In this section there are some expressions have been used as thins said, done or written, in reference to their common intention. Each of the word has its own importance in the application of this section and all these things must be properly taken into consider by the courts before applying this section. This section is based on the “theory of implied agency”. So the things said or done by one conspirator are admissible against the other if they relate to the conspiracy.
Illustration:
Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India.
The facts that В procured arms in Europe for the purpose of the conspiracy, С collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which С had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.

Conspiracy:
Section 10 deals with the admissibility of evidence in a conspiracy case. It is based on the “theory of implied agency.” The special feature of the section is that anything said or done or written by any member of conspiracy is evidence and admissible against the other if it relates to the conspiracy. This section has to be read with Section 120A of the Indian Penal Code. When any conspirator has assumed to do any act of conspiracy in furtherance of common design, it is a part of res gestae. All conspirators must have “common intention” at the time when the thing was said, done or written. Confessions by accused made after the object of the conspiracy is carried out are not relevant as the common intention did not then exist.
The first condition for applying Section 10 is that the conspirators have conspired together. The conspiracy is, therefore, an unlawful combination of two or more persons to do an unlawful act or a lawful act by unlawful means. There must be reasonable ground to believe that two or more persons have conspired together to commit an offence. However, a conspiracy is not actionable act giving rise to cause of action.
Ingredients:
(1) There must be an agreement between two or more persons who are alleged to conspire, and
(2) The agreement should be to do or cause to be done:
(i) An illegal act, or
(ii) An act which is not illegal but by illegal means.
Test of conspiracy:
The conspiracy is an inchoate crime. The gist of it is bare engagement and association of persons to break the law in furtherance of common object. The conspiracy itself is not an ingredient of an offence that all parties have agreed to do a single act, rather, in course of carrying out the conspiracy, the commission of a number of illegal acts is done to that effect. The law does not take notice of the intention or state of mind of the offender and there must be some overt act to give expression to the intention. The test is to establish: (i) there is reasonable ground to believe that a conspiracy existed, and (ii) such act was done and the statement made or writing exchanged between conspirators. Thus, “before bringing on record anything said, done or written by an alleged conspirator the court has to bring on record some evidence which prima facie proves the existence of the conspiracy.” All acts and statements of a conspirator can only be used for the purpose of proving the existence of the conspiracy or that a particular person was a party to it. It cannot be used in favour of the other party or for the purpose of showing that such a person was not a party to conspiracy. The common concern and agreement which constitute the conspiracy serve to unify the acts done in pursuance of it.
Relevancy of conspiracy:
This has been the rule of conspiracy under section 10 that anything said, done or written by any one of the conspirators against each other is believed to be cons-pirating and is relevant. Once there was sufficient material to reasonably believe that there was concert and connection between persons charged with common design, it is immaterial as to whether they were strangers to each other, or ignorant of actual role of each of them, or that they did not perform any one or more such acts by joint efforts.
The question is whether the statements made or act done by others before the accused joined the conspiracy is relevant or not. According to the expression “in reference to their common intention” the statement made or act done by other is a relevant fact and is admissible. In Ghulam Din Bitch v State of J. & K. it was held that in a trial of government employees who were carriage contractors, when there is a finding that there was a close relationship between the carriage contractors and the government employees who had acted in consent, absence of a charge of conspiracy between the two was not material.
The statements by one conspirator to another during the period of conspiracy relating to the implementation of that conspiracy and the evidence as to the acts done by him disclosing participation of the other conspirator are relevant. Retracted confession of a co-accused unless corroborated by any evidence circumstantial or otherwise which can connect the accused with the crime, can be basis for conviction of the accused.
But, any statement or act made or done after the conspiracy is a very different matter. Once it is shown that a person is out of conspiracy and statement made to the police officer during post-arrest period, whether such statement is a confession or otherwise touching his involvement in the conspiracy, would not fall within the ambit of Section 10 of the Evidence Act. The burden of proving the commission of offence by the accused remains on the prosecution and would not be lessened by the mere fact that the accused had pleaded alibi.
In State of Gujarat v Mohammed Atik the Supreme Court held that any statement by an accused after arrest, whether a confession or otherwise, had not to fall within the ambit of this section. Confession was made by the accused after common intention of parties was no longer in existence, Section 10 cannot be invoked against co-accused.
Principles of Conspiracy:
The essence of Section 10 lies within the expression “common intention.” The words “common intention” signifies a common intention existing at the time when the thing said, was or written by one of them, any narrative, or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is not admissible against the other party. Therefore, the statement of woman to the Magistrate was not admissible, as the conspiracy was already completed.” This principle was approved by the Supreme Court in Sardul Singh v State of Bombay where it held that “principle underlying the reception of evidence under section 10 of the Evidence Act, the statements, Acts, and writing of one co-conspirator as against the other is on the theory of agency.” The ‘theory of agency’ has also been referred to by the Supreme Court in Badri Rai v State of Bihar where it stated that the offering of bribe along with the statement was admissible not only against the first appellant but also against the second appellant on the basis of “theory of agency” in pursuance of the object of the conspiracy. It is a principle of common sense that one person alone can never be held guilty of criminal conspiracy for the simple reason that he cannot conspire. The House of Lords in the famous case of Mulcahy v R. made the following observation:
“A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful 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 it lawful, punishable if for a criminal object or for the use of criminal means.”
The application of the doctrine laid down in Section 10 is strictly based on “reasonable ground” that two or more persons have conspired together to commit an offence. “Once reasonable ground, to believe that several persons have conspired to commit an offence, exists, the acts and declarations of a particular person in reference to the common intention are relevant facts although that person may not so much as even to know of the existence of many others engaged in the conspiracy or where utter strangers to him.” Regard must also be had to the limits within which this class of evidence can be used. There must be reasonable ground to believe that two or more persons have conspired together to commit an offence. When confession was made by the accused after common intention of the parties was no longer in existence Section 10 cannot be invoked against co-accused. 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 Indian penal code 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 illegal by means, such an agreement amount to criminal conspiracy.
In Emperor v. Shafi ahmed it has been held that if two or more persons conspire together to commit an offence, each is regarded as the agent of the other, and just the principal is liable for the acts of agent, so each conspirator is liable for what is done by his fellow conspirator, in furtherance of the common intention entertained by both of them.

In Indian law the scope of this section is wider than the English law. As in English law the expression is used is “in furtherance of their common intention” whereas in Indian law the expression is used is “in reference to their common intention”. This expression in Indian law is only used to give wider effect to this section than the English law.
Existence of the conspiracy:
The operation of Section 10 is strictly conditional upon being reasonable ground to believe that two or more persons have conspired together
In Government of NCT of Delhi v. Jaspal Singh, it has been held that once there is sufficient material to reasonable believe that there was concert and connection between persons charged with a common design, it is immaterial whether they were strangers to each other, or ignorant of actual role of each of them or they did not perform any one or more of such acts by joint efforts. It is not necessary that all should have joined in the scheme from the first; those who come in at later stage are equally guilty, provided the agreement is proved.

Before bringing on record, anything said, done, or written by an alleged conspirator the court has to bring on record some evidences which prima facie proves the existence of the conspiracy.
In Gulab Singh v. Emperor, it has been observed that it is necessary in a prosecution for conspiracy to prove that there were two or more persons agreeing for purpose of conspiracy and that there could not be a conspiracy of one. This decision is based on the decision given in King v. Plummer

The person making statement must be a party to such conspiracy and the alleged person must conspire together with other members:
All acts and statements of a conspirator can only be used for the purpose of proving the existence of the conspiracy or that a particular person was party to it. It cannot be used in favour of the other party or for the purpose of showing that such a person was not a party to it. And there must be reasonable ground to believe that they have conspired together.

It is true that the expression ‘reasonable ground to believe’ does not mean it is proved. It certainly contemplates something short of actual proof and means that there should exists prima facie evidence in support of the existence of the conspiracy between two or more accused persons, and it is then only that anything said, done or written by one can be used against the other.

In Samundar Singh v. State, it has been held that the evidence is taken after a prima facie proof of conspiracy but at a later stage of the trial that reasonable ground of belief or prima facie proof is displaced by further evidence; the court must reject the evidence previously taken.

Things said, done, or written in reference to their common intention:
If the things are said, done, or written in reference to the common intention of the conspiracy then only the things said, done, or written will be admissible in the court of law. But if anything said, done, or written by any fellow conspirator after the conspiracy no longer exist and had ended or ceased to exist, it will be inadmissible against other.
‘Anything said’ would include the speeches, or declarations made by the person. Evidence of communication between conspirators while the conspiracy is on is admissible. Anything written by a conspirator will not be admissible against him or others if it is not done in the reference to the common intention of the conspiracy. The expression ‘written’ would include the manuscripts, whether signed or unsigned, written or typewritten.
The word in reference to their common intention mean in reference to what at the time of statement was intended in the future.
Every conspiracy is made in a great privacy due to that it is very difficult to gather evidences against the conspiracy. Direct evidences cannot be taken because of that. It is only from the members of the family or from the persons who are intimately connected with those persons or from their associates the evidences can be collected.
Admissions of Evidences related to acts outside the period of conspiracy:
This is very clear with the bear text of S.10 that the things said, done, or written will be relevant only then when such intention was first entertain by any one party to the conspiracy. Again the thing is necessary to remember that the things said, done, or written is not relevant when the conspiracy is over.

In the case State of Tamil Nadu v. Nalini, it has been held that once it is shown that a person snapped out of conspiracy, any statement made subsequently thereto cannot be used against other conspirator under section 10 of Evidence Act.

In the case of Mirza Akbar v. King emperor, the privy council held that correspondence between the accused was relevant under section 10 as the substance of the latter were only consistent with the conspiracy between the accused prisoners to procure the death of ali asghar, but the statement of mehr laqa to the magistrate was not relevant under section 10 as it was made after the object of conspiracy had already been carried out.

In the case of L.K.Advani v. CBI, Delhi high court held that there is no evidence on record except the alleged entries in the diaries and no loose sheet to prove the clam of the conspiracy and also there is no evidence to show that the entries were made in reference to common intention of the conspirators after it was first entertained.

By above discussion we can say that there are some essentials which a court considers to be look after it before admitting the statements under section 10 of Evidence Act.

In Re RamRatanam , the first accused agreed to supply to the second accused a packet of explosive for the purpose of blowing up a railway bridge and the second accused along with others used the explosive, but his attempt proved unsuccessful; later the second accused wrote a letter to the first accused mentioning his unsuccessful attempt and ask him to supply some more explosive substance. On those facts it has been held that the latter of second accused was not admissible against the first accused as to the common intention had ceased to exist after the attempt to blow up the bridge failed.

In different judgments of the court of law it has been held that the statements said, done, or written in reference to their common intention must be made when the conspiracy is on. Neither before it start nor after it end. In both the cases the statements will not be admissible.
English and Indian Law [S 10 is Wider than English Law]
Under the English law on a charge of conspiracy, although statement and facts made by one conspirator or in furtherance of the common object are admissible against the others, statements or acts by one not made in pursuance of the conspiracy or not in the furtherance of the common purpose, are not admissible against the others, nor are the statements made after the termination or abandonment of the conspiracy or the attainment of its object or after the end of his connection with the conspiracy. S 10 has wide scope than the English law as – (i) Under s 10 anything said or done in reference to the to the common intention, although it may be nothing support or in the furtherance of the conspiracy, is relevant against the others. Any act or declaration of a conspirator before another joined the conspiracy, or a letter giving an account of the conspiracy is relevant. Thus in R vs. Whitehead, 15 WR Cr 25, letter containing an account of the conspiracy were admitted even though not written in support of or in furtherance of it. (ii) Under the English law statements or acts of other conspirator after one terminates his connection with the conspiracy is not admissible against the latter, but under s 10 they are admissible against him (see illustration).
The words used in this section are “in reference to” and not “in furtherance of”, as in English law and so they make its scope wider than the rule of English law. S 10 renders admissible in cases of conspiracy much evidence which is not otherwise ordinarily admissible under the English law. Its provisions are wider than that of English law. The expression “in reference to their to their common intention” in s 10 is very comprehensive and is designedly used to give it a wider scope than the words “in furtherance of” in English Law [Bhagwan & Ors v. State of Maharashtra,AIR 1965 SC 682].
The illustration shows the comprehensive nature of the. Though the use of words “in reference to” appears to give the things said, done or written in reference to the conspiracy must have happened after the conspiracy was conceived by any one of the persons and that the acts or declarations of a conspirator after the conspiracy has terminated and the common intention ceased to operate are not admissible against a fellow conspirator.
S 10 is not however capable of being widely constructed so as to include a statement made by one conspirator with reference to past acts done in the actual course of carrying out the conspiracy, as the “common intention” signifies a common intention existing at the time when the thing was said, done or written .
Prima –facie evidence of conspiracy from confession of co-conspirator – It has been held in R. v. Lunnon Keith, (1989) 88 Cr App R 71 CA, that a judge may properly admit a co-conspirator’s plea of guilty in order to prove the existence of the conspiracy. In this case four persons were charged with conspiracy to steal. One of them pleaded guilty. It was held that the evidence of confession by one was properly admitted to prove the existence of the conspiracy. In the instant case, the approver was not present in a separate meeting alleged to have been held to hatch a conspiracy. Held his statement regarding what had happened in the said meeting wasn’t admissible under the Section 10, Evidence and the same was barred under Section 60. [P.V. Narasimha Rao v. State, 2002 Cri LJ 2401 (Delhi): 2002 (2) 97 DLT 452].
Conspiracy Contemplates Something More Than Joint Action – S10 cannot be properly applied so as to convict a person by the admission of the evidence of what has been said, done or written by others. A conspiracy within the terms of s 10, contemplates something more than the joint action of two or more persons to commit offence. If that were not so, s 10 would be applicable to any offence committed by two or more persons jointly with deliberation and this would imprt into a trial a mass of hearsay evidence which the accused persons would find it impossible to meet.
Abetment by Conspiracy- Conspiracy is not a substantive offence in India, but is incorporated in the law of offences. In order to constitute the offence of abetment by conspiracy, there must be a combining together of two or more persons in the conspiracy, and an act or illegal omission must take place in pursuance of that conspiracy and in order to the doing of that thing. It is not necessary that the act abetted should be committed or that the effect requsite to constitute the offence should be caused. Nor is it necessary that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed
S 10 and Conspiracy as an Offence Under I PC-
S 10 has no bearing on the question as to how far a conspiracy to commit an offence or an actionable wrong is an offence under the I P Code, which follows the English law is an of conspiracy only in the cases provided for in ss 311, 400, 401, 402 and 121A of the Code, conspiracy is a mere species of abetment, when an act or illegal omission takes place in the pursuance of that conspiracy and amounts to a distinct offence abetted by conspiracy. An offence under 120-B consists in the conspiracy without any reference to the subject matter of the conspiracy .Conspiracy to Obtain Conviction by Giving False Evidence- No civil action lies against a witness for giving false evidence, and the fact that the evidence is given in pursuance of a conspiracy to obtain the conviction of the accused person does not make any difference. The only remedy against a false witness is a prosecution for perjury. A mere conspiracy to injure a man without any overt act resulting in the injury, does not furnish any cause of action. A conspiracy is not actionable unless it results in the injury, does not furnish any action. A conspiracy is not actionable unless it results in an act done which itself would give rise to a cause of action. As to conspiracy to bring false evidence against a person, s Conspiracy to Hush up Case by Bribing- A and B approached a police inspector to hush up case against up a case against them and A offered him Rs. 500 saying that B had sent him with the money as formerly proposed. The statement by A is admissible also against B to prove that B had constituted, A his agent, as also to prove the existence of the conspiracy. Conspiracy to Commit Criminal Breach of Trust – In case of conspiracy to commit criminal breach of trust, where the charge specified the period of conspiracy, evidence of acts of co-conspirators outside the period is not receivable in evidence. But in such a conspiracy all evidence which would go to show that certain transactions are bogus and not genuine is certainly admissible under other sections of the Act notwithstanding that such evidence may refer to and narrate the acts of the conspirators beyond the period of conspiracy but within reasonable limits. (Sardul v S. A 1957 SC 747: 1958 SCR 161)
Evidence of Acts before Conspiracy- S 10 applies to things only said or done after the time when common intention was first entertained by one of the conspirators Evidence that some of the accused ran cocaine. and gambling debts, long before the existence of the conspiracy which was the subject of the charge was held admissible, the prosecution case being that some of the accused were first thrown together by frequenting or running such dens The acts and declarations of the conspirators, before any particular defendant joined the association, are only receivable against him to prove the origin, character and object of the conspiracy, and not his own participation therein or liability therefore
Conspiracy How Established. [Circumstantial Evidence, Correspondence, Detached Acts etc. etc.] – “A conspiracy need not be established by proof which brings the parties together, but may be shown, like any other fact by circumstantial evidence, the detached acts of different persons accused, including their written correspondence, entries made by them, and other documents in their possession, relative to the main design, will sometimes from necessity be admitted, as steps to establish the conspiracy itself. On this subject it is difficult to establish a general inflexible rule, and each case must in some measure, be governed by its own peculiar circumstances” [Tay s 591]. Conspiracy is a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them.
185TH LAW COMISSION REPORT ON SECTION 10
The recommendations in the 69th Report can be categorized in five groups, as follows:-
(1) Provisions that were not proposed to be amended;
(2) Provisions of the Act that were proposed to be partially amended;
(3) Provisions that were proposed to be substituted in their entirety;
(4) Provision that were proposed to be deleted; and
(5) Provision that were proposed to be inserted.
The 69th Report refers to the fact that section 10 is wider than the corresponding law in England as stated in R vs. Blake (1844) 6 QB 126, per Patteson J (p.139). In England, an additional requirement is that this exception applies only to acts or statements of any of the conspirators “in furtherance of” the common design. In that case, the evidence of entries made by a fellow conspirator in various documents actually used for carrying out the fraud was held admissible but entries in a document not created for purpose of fraud and made by a conspirator after the completion of the fraud were held not admissible against fellow conspirators. The latter document evidenced what had been done and also the common intention with which at the time it had been done, but it was inadmissible against the others as it had nothing to do with carrying the conspiracy into effect, for the common intention had then ceased to operate. The narrow rule laid down in English law is explained in Phipson (Evidence, 15th Ed., para 29.11) as follows:
“But the acts and declarations of other conspirators, before any particular defendant joined the association, are receivable against him only to prove the origin, character and object of the complacency, and not his own participation therein or liability therefor, and if they were not in furtherance of the common purpose (e.g. were mere narratives, descriptions or admissions of past events), or were done or made after his connection with the conspiracy had ceased, they will not be admissible against him (R vs. Blake) (R vs. Devonport 1996 (1) Cr. App. p 221). So, acts and declarations after the event conspired for has happened are not generally receivable, since these cannot be in furtherance of the common purpose. Still, acts of accomplices after the arrest of a conspirator may be received, if done in pursuance of prior instructions from him.” The so-called “common purpose” exception, says Phipson, has been criticized as allowing hearsay evidence to be adduced against defendants who are charged with conspiracy where it could not be adduced against them on a joint charge of committing the substantive offence (English Law Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics, Consultation Paper No.138 (1995), Astidge and Parry on Fraud (Sweet and Maxwell) 2nd Ed. 1996 para 16.008. But, the English law has recommended what Patteson J. stated in 1844. While it is true that section 10 does not use the words “in furtherance of the common design” but uses the words “in reference to their common intention”, the Privy Council in Mirza Akbar vs. Emperor (AIR 1940 PC p.176), in very clear terms held that the words are not to be widely construed and practically read the English law into sec. 10, that the words ‘in reference’ mean ‘in furtherance’. Lord Wright observed, after referring to the English law, (p.180): “This being the principle, their Lordships think the words of sec. 10 must be construed in accordance with it and are not capable of being widely construed so as to include a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed. The common intention is in the past. In their Lordships’ judgment, the words "common intention" signifies a common intention existing at the time when the thing was said, done or written by the one of them. Things said, done or written while the conspiracy was a foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference.In their Lordships’ Judgment sec.10 embodies this principle. That is the construction which has been rightly applied to sec. 10 in decisions in India, for instance, in 55 Bom 839(Emperor vs. Ganesh Raghunath) and 38 Cal 169(Emperor vs. Abani). In these cases the distinction was rightly drawn between communications between conspirators while the conspiracy was going on with reference to the carrying out of conspiracy and statements made, after arrest or after the conspiracy had ended, by way of descriptions of events then past.” It is clear that the Privy Council construed the words “with reference to” as ‘in furtherance of” the common intention and this has been consistently followed. In Sardul Singh Caveeshar vs. State (AIR 1957 SC 747 at 760), the Supreme Court, after referring to Mirza Akbar’s case, said that the Privy Council stated so, “notwithstanding the amplitude of the above phrase”. The principle was reiterated in all later decisions from 1960, see Madanlal Ramachandra Daga vs. State of Maharashtra: AIR 1968 SC 1267 and State vs. Nalini: 1999(5) SCC 253 (Rajiv Gandhi murder case) (per majority). But in another judgment, namely, Bhagwan Swaroop vs. State of Maharashtra, AIR 1965 SC 682 (which concerned the same person) namely, Sardul Singh Caveeshar as in AIR 1957 SC 747 in relation to certain other offences allegedly committed in conspiracy, Subba Rao J (as he then was), adhered to the wider meaning of sec. 10 and observed that there were five conditions for the applicability of sec. 10, of which one viz., item (iv), covered actions, declarations or writings by one co-conspirator “whether it was said, done or written before he entered the conspiracy or after he left it”. It was held that the words were “designedly used to give a wider scope”. The question before the Commission in the 69th Report was the same and after referring to the fact that this is an exception to the hearsay rule, the Commission did feel that it should be narrowly construed. But still, the Commission retained the words “with reference to” and did not substitute the said words by “in furtherance of”. We are of the view, that the section should be amended by using the words “in furtherance of” as held by the Privy Council and the Supreme Court and we accordingly differ from the 69th Report. Sri Vepa P. Sarathi has suggested that in view of the increasing terrorist activities the view of Subba Rao, J. should be preferred and the words “with reference to” should be retained and the interpretation of the said words by the Privy Council, viz., that the said words should mean “in furtherance of” should not be accepted. He says that the view taken in Saju’s case (supra) need not, therefore, be accepted. We have considered the above suggestion but we feel that, for the reasons already mentioned, the view of the Privy Council in Mirza Akbar’scase (supra) and of the Supreme Court in Sardar Singh Caveeshar (supra) (1957) should be accepted. The said principles are reiterated by the Supreme Court even in the latest case in State vs. Nalini (supra). With a view to leave no doubts in the matter and to obviate any construction giving a wider meaning, as done in 1965 and by another learned Judge in 1999, we recommend replacing the words ‘with reference to’ in sec. 10 by the words ‘in furtherance of’. The other suggestion of Sri Sarathi is that the opening words “where there is a reasonable ground to believe” should be substituted as “where the question is whether two or more persons have….” In as much as the existing words may be interpreted as requiring the court to give a preliminary finding, and in order to avoid any ambiguity, we accept the suggestion and recommend that the words should be so changed in the proposed clause (b) of sec. 10. There is another aspect of the matter. In the 69th Report, it was however recommended that, in sec.10, there is no reference to ‘facts in issue or relevant fact’ which is common to sections 6 to 9 and 11 and also recommended substitution of the words ‘entered into such conspiracy’ for the words “have conspired”. These changes are formal and we agree they may also be made in addition to what we have recommended. If these amendments are made, the section as revised in the 69thReport would read as follows and we recommend that section 10 be revised accordingly:
Things said or done by conspirator in reference to common design
“10. Where-
(a) the existence of a conspiracy to commit an offence or an actionable wrong, or the fact that any person was a party to such a conspiracy, is a fact in issue or a relevant fact; and
(b) the question is whether two or more persons have entered into such conspiracy, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it”.
One other aspect is to be considered. The 69th Report recommended that the illustration below sec. 10 as at present with consequential changes may be retained. Sri Vepa Sarathi, in his commentary ‘Law of Evidence’ (5th Ed. 2002) (p.91) says that the illustration below section 10 is wider than the section and goes beyond the English law. We are not extracting the illustration but we may point out that Sarkar’s Evidence (15th Ed. 1999 para 247) also says that the illustration goes beyond the law and refers to what Johnston J in Balmokand vs. R (AIR 1915 Lah 16, 20) said. The learned Judge observed: “The way that the words ‘and to prove A’s complicity in it’ come into the illustration are not quite in accordance with common sense or with the section as I read it”. Instead of making changes in the illustration, we recommend that it may be dropped.
CONCLUSION
After going through section 10 of Evidence Act and many case related to this section thoroughly I came to the conclusion that, there is no discretionary power given to the courts as to the admissibility of the statements made under section 10 of the Act, but there are some essential ingredients which has to be fulfilled in this regard. Those ingredients are stated in the case of bhagwant Swaroop v. State of Maharashtra[21] are:

· There shall be prima facie evidence affording a reasonable ground for a court to believe that two or more persons are member of a conspiracy;

· If the said condition is fulfilled then anything said, done or written by anyone of them in reference to their common intention will be evidence against the others;

· anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them;

· it would also be relevant for the said purpose against the another who entered the conspiracy, whether it was said, done or written before he entered the conspiracy or after he left;

· And it can be used only against and not in his favour.

The time of the thing said, done or written is also a essential thing to look after before the admissibility of the statement that on the time when the statement is made at that time the conspiracy was on or not, a statement cannot be admissible under section 10 if the statement is made before the time when the conspiracy was first entertained and after the conspiracy is end.
Hence it is clear that there is no discretionary power given to the court for the admission of the statements made under section 10 of Evidence Act but there are some prima facie and circumstantial evidences which must prove before any admission of the statement under this section of the Act. Also, the 185th law commission report has made the stand very clear and suggested bold measures to amend section 10.

BIBLIOGRAPHY
BOOKS REFERRED * Sarkar, Law of evidence, 15th edition,2009, LexisNexis Butterworth’s.
STATUTE REFERRED * The Evidence Act, 1872 * Indian Penal code , 1860
CASES REFERRED * Bhagwan & Ors v. State of Maharashtra,AIR 1965 SC 682 * L.K.Advani v. CBI 1997 Cr.L.J. 2559 (Delhi) * Mirza Akbar v. King emperor (1940)67 IA 336, (1940) 67 PC 336 * R vs. Blake (1844) 6 QB 126 * R vs. Whitehead, 15 WR Cr 25 * Samundar Singh v. State AIR 1965 Cal 598 * Sardul Singh Caveeshar vs. State of Bombay AIR 1957 SC 747 * State of Tamil Nadu v. Nalini [AIR 1999 SC 2640]
REPORT REFERRED * 69th Law Commission of India Report * 185th Law Commission of India Report

--------------------------------------------
[ 1 ]. 1958 AIR 953
[ 2 ]. (1868)LR 3 HL 306
[ 3 ]. (1929) 31 BOMLR 515
[ 4 ]. [(2003) 10 SCC 586]
[ 5 ]. 35 Ind Cas 991
[ 6 ]. 397 S.E.2d 5 (Ga. Ct. App. 1990)
[ 7 ]. AIR 1965 Cal 598
[ 8 ]. [AIR 1999 SC 2640]
[ 9 ]. (1940)67 IA 336, (1940) 67 PC 336
[ 10 ]. 1997 Cr.L.J. 2559 (Delhi)
[ 11 ]. AIR 1944 Mad 302…...

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