Report No. 185

Section 10

This section refers to things said or done by a conspirator in reference to a common design.

Section 10 reads as follows:

"Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intentions, 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".

There is an illustration to the section.

The 69th Report refers to the fact that section 10 is wider than the corresponding law in England asstated in R v. 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 v. Blake) (R v. 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 (see 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 v. 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 section 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 section 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" signify 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 section10 embodies this principle.

That is the construction which has been rightly applied to section 10 in decisions in India, for instance, in 55 Bom 839(Emperor v. Ganesh Raghunath) and 38 Cal 169(Emperor v. 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 v. State of Bombay (AIR 1957 SC 747 760), 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 v. State of Maharashtra: AIR 1968 SC 1267 and State v. Nalini: 1999(5) SCC 253 (Rajiv Gandhi murder case) (per majority).

But in another judgment, namely, Bhagwan Swaroop v. 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 section 10 and observed that there were five conditions for the applicability of section 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 above observations of Subba Rao J run counter to the decision of the Supreme Court in 1957 where some of the same accused were involved in a conspiracy and in the earlier case in 1957 the width of the section had been cut down by that Court.

In State v. Nalini, 1999 (5) SCC 253, one of the learned Judges, Justice Thomas observed that the words 'with reference to' are slightly wider.

Now, the observation in the above decision of Subba Rao J. (as he then was) 1965 have been explained very recently in Saju v. State of Kerala, 2001(1) SCC 378 (at 387), as follows:

"But, with respect, the above observations that the words of section 10 have been designedly used to give a wider scope than the concept of conspiracy in English law, may not be accurate. This particular aspect of the law has been considered by the Privy Council in Mirza Akbar v. King Emperor AIR 1940 PC 176 at p 180, where Lord Wright said that there is no difference in principle in Indian law in view of section 10 of the Evidence Act.

The decision of the Privy Council in Mirza Akbar case has been referred to with approval in Sardul Singh Caveeshar v. State of Bombay (AIR 1957 SC 747)...."

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's case (supra) and of the Supreme Court in Sardar Singh Caveeshar (supra) (1957) should be accepted. The said principles are reiterated by the SupremeCourt even in the latest case in State v. 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 section 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 section 10.

There is another aspect of the matter. In the 69th Report, it was however recommended that, in section10, 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 69th Report would read as follows and we recommend that section 10 be revised accordingly:

"10. Things said or done by conspirator in reference to common design 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 section 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 v. 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.

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