Immunity from Criminal Conspiracy

Substantive offence means an offence complete in itself, such as wrongful confinement or assault, as opposed to the inchoate offence of agreeing to commit one.

Gherao is defined by the Calcutta High Court in the case worked below. It is not a statutory term.

Cognizable offence is one for which a police officer may arrest without a warrant and begin an investigation without an order of a magistrate.

Section 17, taken apart

No office-bearer or member of a registered Trade Union shall be liable to punishment under sub-section (2) of section 120B of the Indian Penal Code (45 of 1860) in respect of any agreement made between the members for the purpose of furthering any such object of the Trade Union as is specified in section 15, unless such agreement is an agreement to commit an offence.

The section has five elements and one exception. Every one of them limits it.

One: only an office-bearer or member is protected, and only of a registered Trade Union. An unregistered combination has nothing.

Two: the protection is only from punishment under section 120B(2). It is not a general criminal immunity, and it is not even a general immunity from conspiracy: the section names one sub-section of one offence.

Three: the protection attaches to an agreement, not to conduct. What is taken outside the offence is the making of the agreement.

Four: the agreement must be made between the members. An agreement with outsiders is not within the words.

Five: the purpose must be furthering an object of the union specified in section 15. This is the substantive limit, and it links this section to [The Funds of a Trade Union, and the Political Fund]. Because section 15 prescribes the objects by rules rather than printing them, the accurate statement is that the immunity extends to agreements furthering the objects prescribed under the Code, and a student should say that rather than reciting the list from the repealed 1926 Act.

The exception: "unless such agreement is an agreement to commit an offence." This is the sentence that decides most problems. An agreement to commit an offence is outside the section entirely, and the conspirators may be charged in the ordinary way.

The leading case, and the limits are the whole of it

Jay Engineering Works Ltd. v. State of West Bengal, AIR 1968 Cal 407, 72 CWN 440, a Full Bench of the Calcutta High Court.

Facts. The company had a sales office in Calcutta employing about 365 workmen, whose union was registered under the Trade Unions Act 1926. Eighteen employees were retrenched in January 1967. On 27 January the retrenched employees with about seventy others blockaded the premises, obstructing the passage of personnel and goods, including food for those confined inside. On 2 March about two hundred people gheraoed the manager and other officers from one in the afternoon; the gherao lasted thirty-three hours. On 17 April between one hundred and one hundred and fifty people did the same, and the confined men were rescued only at ten at night on 18 April on the order of the Chief Presidency Magistrate under section 100 of the Code of Criminal Procedure. On 29 May the officers were confined again for over five hours. Property was tampered with, insulting slogans were shouted, and food was allowed in only in nominal quantity at the besiegers' will. Information was given to the police each time and no action was taken, the police being immobilised by two State Government circulars. The company moved the High Court under article 226.

Held. The Court answered three questions, and two of them are the substance of this chapter.

On what a gherao is, the Court gave the definition that has been used ever since: a gherao is a physical blockade of a target, either by encirclement or forcible occupation; the target may be a place or a person or persons, usually the managerial or supervisory staff of an industrial establishment; the blockade may be complete or partial and is invariably accompanied by wrongful restraint, and or wrongful confinement, and occasionally by assault, criminal trespass, mischief to person and property, unlawful assembly and various other criminal offences; and the object is to compel those who control industry to submit to the demands of the workers without recourse to the machinery provided for by law and in wanton disregard of it, that is to achieve their object not by peaceful means but by violence.

On the immunity, the Court held that the protection given by section 17 of the Trade Unions Act 1926 is of a limited nature and must be clearly understood. What the section provides is that an agreement to do things in furtherance of the objects set out in section 15 will not amount to a criminal conspiracy. Adopting the reasoning it approved, the Court held that trade unions have the right to declare strikes and to do certain acts in furtherance of trade disputes, and are not liable civilly for such acts or criminally for conspiracy in furtherance of such acts as the Act permits, but there is nothing in that Act which, apart from immunity from criminal conspiracy, allows immunity from any criminal offence.

The Court then applied that to the facts in terms that answer any problem question. If a person or persons wrongfully restrain or wrongfully confine another, the matter comes under the penal provisions on wrongful restraint and wrongful confinement, and cannot be saved by section 17 of the Trade Unions Act 1926 or indeed any provision thereof. A combination of industrial workers cannot claim immunity from being charged with criminal conspiracy if they conspire to commit an offence; whether there was such a conspiracy is a question of fact. The commission of an offence is not excused by any other law. And though workers may go on peaceful strikes which are not illegal, they have no right to resort to coercive methods like wrongful restraint, wrongful confinement and criminal trespass, which are all cognizable offences, such methods being the more unwarranted because there is machinery set up by law to deal with industrial disputes.

The Court also drew a careful line about staying in a factory. Factory workers have a right to enter the factory; their staying in becomes criminal trespass when it appears that they intend to intimidate, insult or annoy the management or to commit any other offence. Staying in peacefully for the purpose of appealing to the management to grant some concessions would not be an offence, and the Court advised that police action be avoided in such cases.

Why it matters. It is the single most useful case on the limits of the immunities, and the limits are what an examiner asks about. It also supplies the accepted definition of gherao, which MU has set as a short note in its own right.

It was decided under the Trade Unions Act 1926, repealed by section 104(1)(a) on 21 November 2025. Section 17 of the Code reproduces the same protection in the same shape: immunity from a charge under section 120B(2) for an agreement between members made to further an object specified in section 15, unless the agreement is one to commit an offence. The reasoning that the immunity stops at conspiracy and never reaches a substantive offence is unchanged, and indeed the Code now says so expressly in the closing words of section 17, which the 1926 Act reached by construction.

The companion authority is Rohtas Industries. In Rohtas Industries Ltd. v. Rohtas Industries Staff Union, AIR 1976 SC 425, worked in [Immunity from Civil Suit], the Supreme Court held that the High Court had been wrong to suppose that the corresponding civil immunity gave strikers an implied immunity from all legal proceedings, and that individuals who wilfully destroy plant and machinery to cause loss to the employer are liable for the injury caused, sabotage being no weapon in workers' legal armoury. The two cases point the same way from opposite sides of the law: neither immunity is a general licence.

The penal law reference, and how to handle it

Section 17 refers to "sub-section (2) of section 120B of the Indian Penal Code (45 of 1860)". The Code received assent on 28 September 2020. The penal law of India has since been replaced by the Bharatiya Nyaya Sanhita 2023.

What a student should do about that is straightforward. Quote the section as it stands, because that is what the statute says, and note that the reference to the Indian Penal Code is read, in the ordinary way, as a reference to the corresponding provision of the law now in force. Do not silently substitute a Sanhita section number: that would be quoting a provision the Code does not contain, and this book's rule is that section numbers come from the text, never from recollection.

The same caution applies to the offences discussed in Jay Engineering Works. That judgment cites the Indian Penal Code sections on wrongful restraint, wrongful confinement and criminal trespass as they then stood, and this chapter quotes the case as the case put it.

A worked example

The facts. The Wada Packaging Workers' Union is registered. Its executive resolves at a meeting that the members will stop work from Monday until the wage rate is revised, and that members will stand at the gate to explain the dispute to anyone arriving. Four things then happen.

One: the employer complains that the executive agreed together to cause his business loss, and asks the police to charge them with criminal conspiracy. Section 17 answers it. They are office-bearers and members of a registered Trade Union; the agreement was made between the members; and its purpose was to further an object of the union within section 15, regulating relations with the employer over wages being the paradigm case. The agreement is not an agreement to commit an offence. No liability under section 120B(2).

Two: on the third day thirty members surround the manager in his office and keep him there for eleven hours, allowing him no food. This is a gherao on the Jay Engineering Works definition: a physical blockade of a target by encirclement, accompanied by wrongful restraint and wrongful confinement. Section 17 does not help. Wrongful confinement is a substantive offence and, in the Court's words, cannot be saved by section 17 or indeed by any provision of the statute; there is nothing which, apart from immunity from criminal conspiracy, gives immunity from any criminal offence.

Three: the employer says the thirty must have agreed among themselves before doing it, and asks that they be charged with conspiracy as well. Now the exception in section 17 bites from the other direction. The agreement was an agreement to commit an offence, so it falls within the closing words of the section, and the immunity does not apply to it at all. On Jay Engineering Works a combination of industrial workers cannot claim immunity from being charged with criminal conspiracy if they conspire to commit an offence, and whether they did is a question of fact on which the burden lies on the person alleging it.

Four: on the fifth day forty members sit inside the plant, peacefully, refusing to leave until the manager hears them, and do nothing else. Here the answer is more favourable and it comes from the same case. Factory workers have a right to enter the factory, and their staying in becomes criminal trespass only when it appears that they intend to intimidate, insult or annoy the management or to commit some other offence; staying in peacefully to appeal to the management for concessions would not be an offence, and the Court advised that police action be avoided in such cases.

Change one fact throughout: the union is not registered. Section 17 is unavailable in every one of the four situations, because it protects an office-bearer or member of a registered Trade Union. The first situation, the ordinary agreement to strike, would then have to be met on general principles.

What this does NOT mean

It does not mean members of a union cannot be prosecuted. They can, for any offence they commit. The immunity is from punishment under section 120B(2) for the agreement.

It does not mean every agreement a union makes is protected. The agreement must be between the members and must be for the purpose of furthering an object specified in section 15.

It does not protect an agreement to commit an offence. The closing words exclude it expressly.

It does not make a gherao lawful. On Jay Engineering Works a gherao is invariably accompanied by wrongful restraint or wrongful confinement, and those are offences that the immunity does not touch.

It does not mean peaceful staying-in is criminal trespass. On the same authority it is not, unless the intention is to intimidate, insult or annoy the management or to commit another offence.

It does not protect an unregistered combination.

And it does not give the same protection as section 16. Section 16 is about civil suits and lists three grounds; section 17 is about one criminal charge. They are answers to different attacks.

Limits, criticism and amendments

The immunity is narrow and the criticism is that it is narrow at the point of maximum need. An agreement to strike is protected; the acts that make a strike effective are not, and the line between vigorous picketing and wrongful restraint is drawn by the police in the first instance. Jay Engineering Works is itself a case about police inaction under State circulars, which shows how much practical weight falls on executive discretion rather than on the section.

The measurement by section 15 has become less transparent. The 1926 Act printed the permitted objects in the section, so a reader could see at once what the immunity covered. The Code prescribes them by rules, which means the reach of a criminal immunity now depends on delegated legislation.

The reference to the Indian Penal Code 1860 is a drafting artefact of a Code passed in 2020. It will need attention, and until it gets it a student must quote it as it stands.

Against that, the Code improved one thing. The closing words, "unless such agreement is an agreement to commit an offence", state expressly what the Calcutta High Court had to reach by construction in 1967, so the limit is now on the face of the section.

Quick revision

• Section 17: no office-bearer or member of a registered Trade Union is liable to punishment under section 120B(2) of the Indian Penal Code (45 of 1860) in respect of any agreement made between the members for the purpose of furthering any object specified in section 15, unless the agreement is an agreement to commit an offence.
• The immunity attaches to the agreement, not to the acts, and it names one offence.
• Measured by section 15, whose objects are prescribed by rules, not printed.
• Jay Engineering Works, AIR 1968 Cal 407 (FB): gherao is a physical blockade by encirclement or forcible occupation, target a place or persons, invariably accompanied by wrongful restraint or wrongful confinement, object to compel submission without recourse to the machinery provided by law. The immunity is "of a limited nature"; there is nothing which, apart from immunity from criminal conspiracy, allows immunity from any criminal offence; wrongful restraint and confinement cannot be saved by the section; a combination cannot claim immunity if they conspire to commit an offence; workers may strike peacefully but have no right to wrongful restraint, wrongful confinement or criminal trespass, all cognizable. Staying in peacefully to appeal to management is not an offence.
• Rohtas Industries, AIR 1976 SC 425: the civil immunity is likewise not an immunity from all legal proceedings, and sabotage is no weapon in workers' legal armoury.
• Quote the IPC reference as the section prints it; the penal law is now the Bharatiya Nyaya Sanhita 2023 and the reference is read as one to the corresponding provision.

Test yourself

1. State section 17 and identify what it does not cover. No office-bearer or member of a registered Trade Union is liable to punishment under sub-section (2) of section 120B of the Indian Penal Code in respect of any agreement made between the members for the purpose of furthering any such object of the Trade Union as is specified in section 15, unless the agreement is an agreement to commit an offence. It does not cover an unregistered combination; an agreement with persons who are not members; an agreement for a purpose outside section 15; an agreement to commit an offence; or any substantive offence actually committed.

2. What is a gherao, and is it protected? On Jay Engineering Works Ltd. v. State of West Bengal, AIR 1968 Cal 407, a gherao is a physical blockade of a target, either by encirclement or forcible occupation, the target being a place or persons, usually the managerial or supervisory staff, the blockade being complete or partial and invariably accompanied by wrongful restraint or wrongful confinement and occasionally by assault, criminal trespass, mischief and unlawful assembly, its object being to compel those who control industry to submit without recourse to the machinery provided by law. It is not protected. The Court held that wrongful restraint and wrongful confinement cannot be saved by the immunity or indeed by any provision of the statute, since there is nothing which, apart from immunity from criminal conspiracy, allows immunity from any criminal offence.

3. Workers agree among themselves to confine the manager until their demands are met. Can they claim the immunity for the agreement itself? No. Section 17 excepts an agreement which is an agreement to commit an offence, and confining the manager is an offence. Jay Engineering Works puts the same point directly: a combination of industrial workers cannot claim immunity from being charged with criminal conspiracy if they conspire to commit an offence, and whether there was such a conspiracy is a question of fact.

4. Forty workers sit peacefully inside the factory refusing to leave until management hears them. Is that criminal trespass? Not on those facts. On Jay Engineering Works, factory workers have a right to enter the factory, and their staying in becomes criminal trespass when it appears that they intend to intimidate, insult or annoy the management or to commit any other offence. Staying in peacefully for the purpose of appealing to the management to grant some concessions would not be an offence, and the Court advised that police action be avoided in such cases.

5. Why does section 15 matter to section 17? Because section 17 measures the immunity by section 15: it protects an agreement made for the purpose of furthering "any such object of the Trade Union as is specified in section 15". An agreement to further an object within section 15 is protected from the conspiracy charge; an agreement to further something outside it is not. Since section 15 prescribes the objects by rules rather than printing them, the objects that govern the union's general fund also fix the reach of this criminal immunity.

6. Compare the immunity in section 16 with that in section 17.