September 17, 2021

Offences Against The State under Indian Penal Code

Criminal law

There are some specific criminal activities which are directed against the State’s existence itself like sedition, rebellion and treason. The Chapter VI (Section 121 to 130) of the Indian Penal Code, 1860 which extends over twelve sections and with two additional sections Section 121A and Section 124A which deal with the offences against the state. This chapter is similar to the law in England which deals with high treason. This chapter particularly has a presumption that all the citizens of a country are its subjects and they are obliged to be loyal and have to respect its sovereignty. These sections have been provided under the Code to safeguard and preserve the State and have provided severe punishments like life imprisonment or death penalty in case of offences against the state which are done to disturb the public tranquillity, public order and national integration. These sections are very important as all the States have the same rights of self- preservation as the subjects have and they also require self-preservation and protection.

Section 121 of the Code deals with Waging or attempting to wage war or abetting waging of war, against the Government of India and whoever does any of this shall be punished with death, or imprisonment for life and shall also be liable for fine.

The essentials that are required to be proved for an accused in order to constitute an offence for waging war against the Government of India:

1. Waged war; or

2. Attempted to wage war; or

3. Abetted (encouraged or assisted) the waging of war

4. Must be against the State.

For example, a person joins an insurrection against the Government of India, then that person has committed an offence defined under this section.

The acts amounting to any of the above mentioned three- actual war, abetted or attempted war will amount to waging war. So, all three activities have been sanctioned with the same punishment. The reason behind the same punishment is because such acts are condemned to be the highest offences against the State. It should be noted that the offence of abetment comes into motion when any person translates his inciteful recitations or hatred against the state into action. In the case of Mir Hasan Khan v. State of Bihar, it was seen that for a person to be convicted under this section it should be proved that the person had planned to obtains possession of armoury and used such rifles and ammunitions against the troops of the State and the seizure of these armouries was part of the planned action.

The offence under this section is cognizable, non-bailable, non-compoundable and triable by the Sessions court.

Waging war is different than rioting. Waging war against the state is when the rising is for a general-purpose which affects the whole community and is directed against the government whereas rioting occurs when the rising is for accomplishing some private purpose which affects only the ones who are engaged in it without questioning the government irrespective of how numerous or outrageous it is. In the case of waging a war, intention and purpose are considered to be a very important factor behind the aggression against the Government.

The accused persons are not limited to just Indians but foreign nationals also who enter into the territory of India to disrupt the functioning of the government as the case of the Mumbai Terror Attacks, the attack was by foreign nationals and was aimed at the country and the Indians.

Waging war does not include overt acts like a collection of men, arms and ammunition and inter-country wars which involve military operations between countries is also not included under it but joining or organising a rebellion against the government is a form of war.

Section 121A was not a part of the original Indian Penal Code of 1860 but it is added later by an amendment in the Code in 1870. After Independence, it was amended in 1951 just for replacing ‘British India’ with ‘State’. This section deals with conspiracy to commit offences punishable by Section 121.

This section deals with two kinds of conspiracies:

1. Conspiring to commit any offence punishable under Section 121 within in or out of India.

2. Conspiring to overawe, intimated by criminal force or a show of criminal force against the government.

An act which does not constitute abetment will still be considered an offence under this Section when two or more persons enter an agreement to commit an illegal act or a legal act through illegal means.

Punishment under this section includes imprisonment for ten years or life imprisonment with fine and these punishments can be given by the Central and State governments.

For constituting a conspiracy under this section is not necessary that any act or illegal omission takes place.

Section 122 of the Code deals with collecting arms, etc., with intention of waging war against the Government of India. It deals with the preparation of war.

Following are the essentials required under this section:

1. A person collects men, arms or ammunition, or prepares to wage war;

2. Does it with intention of waging the war against the Government of India or for preparing to wage war against the Government of India.

3. The accused must be a participant in such collection of men, arms or ammunition.

Nevertheless, the existence of intention must be concurrent with such preparation. The punishment under this section is life imprisonment or ten years imprisonment with fine. The offence under this section is cognizable, non –compoundable, non-bailable and triable by the Sessions court.

Section 123 of the Code deals with concealing with intent to facilitate design to wage war by any act or illegal omission.

Following are the essentials of this section:

1. A person conceals the existence of a design which is prepared to wage war against the Government of India.

2. He intends by such concealment to facilitate the waging of the war or knows that such concealment is likely to facilitate such war.

The punishment under this section is imprisonment of ten years along with fine. The offence under this section is cognizable, non-bailable, non-compoundable and triable by the Sessions court.In the case of Parliament attacks, the accused had information of conspiracy along with the plan of terrorists and this illegal omission by him made him liable under this section.

Section 124 of the Code deals with assaulting the President, Governor, etc., intending to compel or restrain the exercise of any lawful power. Under this section, the person assaults or restrains or wrongfully restrains utilizing a criminal force or through the show of criminal force. This section is an extension of Section 124A. The primary motive behind this section is to create a fearless atmosphere for the high officials to function and discharge their duties efficiently with no apprehension to their bodies.The punishment under this section is imprisonment for seven years along with fine. The offence is cognizable, non-bailable, non-compoundable and triable by the Sessions court.

Section 124A of the Code deals with Sedition. This section was carved out as Section 113 of Macaulay’s draft Penal Code of 1837 but later it was enforced due to unreasonable reasons in the Indian Penal Code, 1870. Sedition means an attempt made by meetings or speeches or by publications to disturb the tranquillity of the State or to bring hatred or contempt or dissatisfaction against the State. This dissatisfaction or hatred may be done by words either spoken or written or use of signs, representations, etc. Sedition is a crime against society.

The term dissatisfaction under this section includes disloyalty and feelings of enmity.

Under this section Bonafide criticism of Government is possible. So, the use of strong words to express disapproval of the measures or policies of Government with a view for improvements without exciting or attempting to excite hatred, contempt or dissatisfaction does not come under sedition.

The punishment for sedition under this section is for life imprisonment to which fine might be added or imprisonment up to three years along with fine or just fine. The offence is cognizable, non-bailable, non-compoundable and triable in the Sessions court.

In the case of Queen Empress v. Bal Gangadhar Tilak[1], the High court of Bombay had observed that Sedition means hatred, enmity, dislike, disloyalty, hostility, contempt and every form of ill-will to the government.

The constitutional validity of Section 124A has been in controversy since the Constitution came into force. In the case of Tara Singh v. State [2] there was the contention that Section 124A was ultra vires to the Constitution as it violates Article 19(1) (a) which talks about freedom of speech and expression. The court in this case had said that Section 124A does not hold relevance in modern India’s polity pattern. But then in 1951 through Constitutional amendment 19(2) was added which was reasonable restrictions to freedom of speech and expression with the terms ‘in the interest of’ and ‘public order’.

This judicial problematic unrest for the Section 124A was put to rest by the Supreme Court in the landmark case of Kedar Nath v. State of Bihar. In this case, the apex court said that the security of the State, which is dependent on law and order is the basic consideration which legislation has to consider to punish any offence undertaken against the State. Such legislations have, on one hand, a right to fully protect and guarantee the freedom of speech and expression, which is the sina quo non of a democratic form of govt that our constitution of India has established. But the freedom has to be guarded against becoming a tool against the government which has been established by law by using any words which incite violence or might have a tendency of creating a public disorder or unrest.

Section 125 of the Code deals with waging war against any Asiatic Power which is in alliance with the Government of India. This section is based on an international obligation that a nation must respect other nation and commit to peaceful co-existence. Since India all along have been friendly with all the other countries, this section has been kept for this purpose only in the Code.

The essentials of this section are as follows:

1. An Asiatic state with an international influence.

2. The state should be other than India.

3. The state should be in an alliance or at peace with the Government of India.

The punishment under this Section is life imprisonment or imprisonment for seven years with fine or only fine. The offence is cognizable, non-bailable, non-compoundable and triable in the Sessions court.

Section 126 of the Code deals with committing depredation on territories of Power at peace with the Government of India. Depredation refers to an act of attacking or which amounts to plundering when the menace is caused in general to everyone in the territory. Unlike Section 125 which applies only to Asiatic powers whereas this section applies to nations who are in peace with the State.

The essentials of this section are as follows:

1. Accused should have committed or prepared to commit depredation.

2. The act must be done on the territories in peace with the government.

The punishment under this section is imprisonment for a term of seven years along with fine and any property used or acquired for committing such offence can also be forfeited. The section punishes both the act and its preparation with the same punishment. The offence is cognizable, non-bailable, non-compoundable and triable in the Sessions court.

Section 127 of the Code deals with receiving property taken by war or depredation under Section 125 and 126.

The essentials of the section are as follows:

1. Accused must have received any property.

2. The property must have been received by waging war or depredation against the Government of India

The punishment under this section is imprisonment for seven years with fine and property will be forfeited. So, any property received by waging war against any Asiatic power or committing depredation on territory at peace with the Government of India is made punishable under this section. The offence is cognizable, non-bailable, non-cognizable and triable in the Sessions court.

One of the primary objects of this section is to not allow the Indian territory to be used a safe place for such persons who have received such properties by committing an offence under sections 125 and 126 of the Code. For conviction under this section, it is not necessary that the offender must be prosecuted or convicted under Section 125 or 126.

Escape of a State prisoner:

State prisoner refers to a person whose imprisonment is necessary to preserve the security of India from internal disturbance as well as foreign hostility.

Section 128 of the Code deals with a public servant voluntarily allowing a prisoner of war or state to escape. When being a public servant and having custody of a prisoner and voluntarily allowing him to escape any such place where he is confined, then he will be punished for life imprisonment or imprisonment for a term of ten years and will also be liable to fine. The offence is cognizable, non-bailable, non-cognizable and triable in the Sessions court. The term public servant used here has the same meaning as given under Section 21 of the Code and the word voluntarily has the same meaning as given under Section 39 of the Code.

Section 129 of the Code deals with public servant negligently suffers such prisoner of war to escape who is under his custody and negligently allows such prisoner to escape from that custody or confinement where that prisoner is confined. The public servant is punished with simple imprisonment for a term up to three years and also will be liable to fine as the offence is on account of negligence. The offence under this section is cognizable, bailable, non-compoundable and triable by Court of Session, Metropolitan Magistrate and Magistrate of First class.

Section 130 of the Code deals with aiding the escape of, rescuing or harbouring such prisoners of war. Any person who knowingly aids or assists any prisoner of State or the war to escape from custody or rescues or attempt to rescue or harbours or conceals any such prisoner or attempts or attempt to offer resistance of recapturing of that prisoner then such person will be punished with imprisonment for life or with imprisonment up to ten years and will also be liable to fine. The offence under this section is cognizable, non-bailable, non- compoundable and triable in the Sessions court. This section is a general provision which applies to all and not limited just to the liability of public servants only which is the case in sections 128 and 129 of this Code. This provision has also a very wide ambit as it says that if knowingly aiding or assisting, or rescuing or attempting to rescue, or harbouring or concealing, or offering or attempting to offer resistance have all been made an offence under this section.

If any State prisoner is allowed to be at parole within certain limits of the Indian territory, then he will be deemed to be escaped custody if he goes beyond that limit in which he is allowed.

References

[1][1897] ILR 22 Bom 112

[2] AIR 1951 East Punjab 27


Author Details: Kashish Yadav

Instagram

Leave a Reply