Offences Against the State

This article has been written by Parul Sharma , pursuing BBA-LLB from Centre for legal studies Gitarattan International Business School GGSIPU. In this article, she has tried to explain about the Offences against the State.

Introduction

Chapter-VI of the Indian Penal Code, 1860 deals with offences against the state. It comprises of twelve sections commencing from the sections 121 to 130 and 121A and 124A which were added to the Code in 1870. The purpose of these codes is to ensure the safety of the State as a whole. The existence of the State can be safeguarded by giving severe punishments in case of offences against the State such as life imprisonment or the death penalty. Offences against the State also because the government to disturb the general public tranquillity, public order, and national integration. The offences prescribed under this chapter may broadly be classified into five categories depending on the gravity of the offences. These are:

Waging, collecting, concealing attempting, abetting, conspiring to wage, collecting arms, or ammunition to wage war against the govt. of India (IPC, sections 121, 121A, 122, 123)
Assaulting the president of India, or Governor of any State with intent to compel or restrain the exercise of any lawful authority (IPC, section 124)
Sedition IPC, Section-124A
Waging War against Asiatic Power at peace with the Government of India (IPC, section 125), or committing depredation on territories of such State (IPC, Sections-125 and 126)
Permitting or aiding the escape of a State prisoner or a prisoner or a prisoner of war (IPC, Sections-128, 129 and 130)

Waging, or Attempting to Wage War, or Abetting Waging of War, against the Government of India

Section-121 of the IPC says that whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for a lifetime and shall also be susceptible to fine. The Code has incorporated the common law concept of preservation of State from any type of war situation and has even provided the most severe punishment of the death sentence or life imprisonment, and fine in case of offences against the state under section 121. The offence under this section is cognizable, non-bailable, non-compoundable, and prosecutable by the Court of Session.

Illustration – If a person joins an insurrection against the Government of India. Then this person has committed the offence defined in this section.
Ingredients of section 121 – To constitute the offence under section 121 of the IPC the following ingredients must exist: –

Accused must wage war, or
Attempt to wage such war, or
Abet the waging war of such war,
Against the govt. of India

Whoever – This section applies to everyone, whether it is an Indian citizen or a foreigner. Everyone who wages a war against the govt. of India is subject to prosecution and can be punished under this section. Foreigners are liable on the principle of de jure gentium which admits the rights of foreigners to enter the country only upon the tacit condition that as they depend on its protection, they’re also subject to its laws.

Waging War – In view of the gravity of the offence contemplated under this section the act of waging war, attempting to wage war and abetting the waging of war are treated on equal footing and the same punishment of death or imprisonment for life is prescribed in all the cases. In other words, the section deals with three stages of involvement in waging war against the Government of India which is abetment, attempt and actual war.

Case Law – In the case Parliament Attack ^[1], Terrorists entering Parliament House with arms and powerful explosives when Parliament was in session causing heavy casualties, shaking the entire nation, amounts to waging or attempting to wage war against the Government of India.

2. Conspiracy to commit offences punishable

Section-121A was inserted in the Indian Penal Code in 1870. Basically, this section says that the conspiracy to wage war against and overawe by criminal force the Central Government or any State Government is punishable with the imprisonment for a lifetime or imprisonment of either description which may exceed to 10 years and fine. The section punishes two kinds of conspiracy. The first is a conspiracy to wage war against the govt. of India, and the second is a conspiracy to overawe by force the Central govt. or State govt.

Ingredients of Section 121A –

To convict a person under Section-121A the following ingredients must be proved: –

That the accused had entered into a conspiracy,
The conspiracy was to commit an offence punishable under section 121A or to overawe by criminal force or to show of criminal force to the Central or State govt.

Under this section, the agreement of two or more persons to wage war against the govt. of India or any State govt. is sufficient to hold the accused liable. No act or illegal omission is necessary for such a conspiracy.

Case Law – In the case of S.H. Jhabwala v. Emperor^[2], the accused persons formed unions along the lines of Soviet Russian Unions and had an allegiance with Soviet Russia. The accused were charged and convicted by the Sessions Court under section 121A, IPC with conspiracy to wage war against the govt. of India.

3. Collecting arms, etc., with intention of waging war against the Government of India

Section-122 makes the act of preparing to wage war against the govt. of India punishment owing to the gravity and seriousness of the nature of the offence in contemplation to overawe by force the Central or State govt. established by law. Thus, the act of collecting men, ammunitions, or to make other preparation with an intention to wage war against the govt. of India or on territories of States at peace with India was punishment under sections 122. The punishment may extent up to imprisonment for life, or imprisonment of either description for a term not exceeding ten years, or fine. The offence under Section 122 of IPC is Cognizable, non-compoundable, non-bailable, and prosecutable by the Court of Session.

Illustration – A collected a group of men and told them to bring weapons which included guns intending to attack a building which was a govt. authority. Hence, he is liable under section 122 of IPC.

Ingredients of section 122 – To invoke Section 122 of IPC, the following ingredients must be satisfied: –
An individual collects men, arms or ammunition, or otherwise prepares to wage war, and
He does so with the intention of either waging war against the govt. of India or being prepared to wage war against govt. of India.

4. Concealing with intent to facilitate design to wage war

Section-123 of the Indian Penal Code states that whoever, by any act, or by any illegal omission, conceals the existence of a design to wage war against the govt. of India, intending by such concealment to facilitate, or might be knowing that such concealment will facilitate, the waging of such war, shall be punished with imprisonment of either description for a term which can exceed up to ten years, and shall also be liable to fine. The object of the section is to ensure that the information should not be withheld from the police who are to take proper steps for the suppression of such crimes. The offence under section 123 is cognizable, non-bailable non-compoundable, and prosecuted by the Court of Session.

Illustration – In the Parliament attack case, the accused had information of conspiracy along with a plan of terrorists. Thus, his illegal omission made him liable under Section 123 of the IPC.
Ingredients of section 123 – The essential ingredients to invoke this section are as follows: –
An individual commits an act or illegal or mission;
He thereby conceals the existence of a design to wage war against the govt. of India.
The person should be knowing about the concealment of the design.

Case Law – In Shaukat Hussain guru v. State National Capital territory, Delhi ^[3], the accused knew about the conspiracy and the plans to attack the Parliament House. He refrained from informing the police or Magistrate and hence made himself liable for rigorous punishment of 10 years with fine under section 123, IPC.

5. Assaulting President, Governor, etc., with intent to compel or restrain the exercise of any lawful power

Section-124 makes any assault or wrongful restrain committed on the President of India or Governor of any State, who are the highest executive officers of the Government, an offence. Basically, this section is an extension of section 121A of IPC which makes conspiracy to overawe by means of criminal force or show of criminal force govt. of India or any state govt. punishable. The section provides for deterrent punishment of imprisonment of either description extend to 7 years with fine. The provisions are based on the principle that the high officers of the State, who are required to run the administration of the govt. should be free from the fear of personal harm and injury while discharging their legal duties.

The essential ingredients to invoke this Section are as follows: –

The accused should have assaulted the President or the Governor of any State
The accused should have wrongfully restrained the President or the Governor
The accused attempted to assault or wrongfully restrain the President or the Governor
The accused attempts to instigate or influence the President or the Governor with force or show of force with an intention to compel them from exercising or refraining from exercising their powers.

6. Sedition

Section-124A deals with sedition. Sedition is nothing but defamation of the established authority of law i.e. Government. This Section states if any person who by either words no matter written or spoken or either by signs or by visible representations otherwise, brings or even attempts to bring hatred or excites disaffection (including the feeling of enmity and disloyalty) towards the govt. of India, is punishable with life imprisonment along with a fine in certain cases or imprisonment for up to 3 years along with a fine in certain cases or fine. The expression ‘brings or attempts to bring into hatred or contempt’ in the section, attempts to not interfere or interfere less with the freedom of speech that is a fundamental right given in the Indian Constitution under Article 19. The expression ‘established authority of law’ refers to the existing political system which includes the ruling authority and its representatives. In other words, it refers to the people who are authorised by law to administer the Executive govt. in any part of India. It also includes the State as well as the Central govt. The offence under section 124A of IPC is cognizable, non-bailable non-compoundable, and prosecutable by the Court of Session.

Illustration – The writers in the public press are not allowed to write or get involved in improper or dishonest motives. A writer when publishes an article with a calm, unsentimental and dispassionate view, and discusses his little views that may or may not cause an individual to think, are not considered to be seditious. However, if the article goes beyond and contains improper, corrupt, and dishonest motive, then such an article is considered to be seditious.

Explanation 1 – The expression “disaffection” includes disloyalty and all feelings of enmity – Excite Disaffection

The expression disaffection may be defined as primarily meaning the contrary to affection, and it goes very much towards expressing the same as hatred or dislike. It may cover something, perhaps a little different from the expression hatred, because it includes disloyalty. To urge people to rise against the govt. is tantamount to trying to excite feelings of disloyalty in their minds. Feelings of enmity include ill-will, hostility, feelings of dislike amounting to enmity, and anything of a similar class or character, which can be demonstrated under the expression disloyalty and feeling of enmity.

Explanations 2 and 3 – Expressing Disapprobation

The phrase ‘expressing disapprobation’ can be simply defined as expressing disapproval. Explanations 2 and 3 give a profusion of options for people to make comments expressing disapprobation of the measures of the govt. It is done in order to obtain their alteration by lawful means or other govt. actions. All this can be done without exciting hatred or exciting disapprobation of the govt.

Explanation 2 and 3 have restricted scope and are strictly defined. Thus, the objective of these explanations is to protect bonafide criticism of public measures as well as their institutions, in order to improve. It is the right of the free press in a free country to accelerate changes in policy by criticising such measures. Nowadays, the freedom given to media is much more when compared to earlier years or pre-independence.

Ingredients of section 124A – Following are the essential ingredients of this section:
Bringing to attempting to bring into hatred
Exciting or attempting to excite disaffection against the govt. of India;
Such an act or attempt might be done-
by words, either spoken or written, or
by any signs, or
visible representation
The act must be intentional
Case Law – In Tara Singh v. State of Punjab ^[4], Section 124A, IPC was struck down as unconstitutional being violative of the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. The difficulty exposed by this case was averted by the Constitutional First (Amendment) Act, 1951 which added the words ‘in the interest of’ and ‘public order’ to Article 19(2) of the Constitution. These words imposed legislative restrictions on freedom of speech and expression.

In Kedar Nath v. State of Bihar ^[5], Section-124A, IPC was held to be constitutional and not in contravention of Article 19(1)(a) of the Constitution as it is saved by the expression ‘in the interest of public order’ in Article 19(2). ‘Government established by law’ is a visible symbol of the State. Thus, the continued existence of the Government established by law is an essential condition of the stability of the State. The very existence of the State is going to be in jeopardy if the govt. established by law is subverted.

7. Waging war against any Asiatic Power in alliance with the Govt. of India

This section is based on the principle of international peaceful co-existence and desire on the part of the govt. to remain in a friendly relationship with its neighbours. Thus, the section makes waging, abetting, or attempting to wage war against any Asiatic Power in alliance with the govt. punishable with imprisonment for life, or up to 7 years of imprisonment, to which fine may also be added. The offence section 125 of IPC is cognizable, non-bailable non-compoundable, and prosecutable by the Court of Session.

– The following are the essential ingredients of this Section: –
There must be an Asiatic State along with an international influence.
Such a State should be other than India.
Such a State should be in alliance with or at pace with the govt. of India.

8. Committing depredation on territories of Power at peace with the Government of India

Section-126 makes depredation, robbing, or plundering an offence, whereas section 125 deals with waging of war. The scope of section 126 is wider than that of section 125 as the latter deals with the waging of war against Asiatic Power in alliance with the govt. of India whereas the former section applies to the power which may or may not be Asiatic.

Depredation means to plunder, or rob. To invoke this section there must be a raid by a group of men into a foreigner territory for the purpose of robbery, plunder or laying waste. Punishment under this section may extend to 7 years of imprisonment of either description with fine and confiscation of property used or intended to be used in committing such depredation. The offence section 126 of IPC is cognizable, non-bailable non-compoundable, and prosecutable by the Court of Session.

The essential ingredients to invoke section 126 under IPC are as following:

The accused must commit or prepare to commit depredation
The act must be done on the territories of any power which is in alliance with or at peace with the govt. of India.

9. Receiving property taken by war or depredation mentioned in sections 125 and 126

Section-127 makes a person liable only if he knowingly receives property taken by war or depredation against a friendly State as defined under sections 125 and 126, IPC. The offence under this section is prescribed imprisonment which may extend to 7 years and fine and confiscation of property as well. The offence section 127 of IPC is cognizable, non-bailable non-compoundable, and prosecutable by the Court of Session.

The essential ingredients to invoke section 127 under IPC are as following:

The accused might have received any property.
The accused must have been received the property by waging war with a Power at peace with the govt. of India or by committing depredation on its territories.

10. Public servant voluntarily allowing prisoner of State or war to escape

To bring an action under Section- 128, the accused must be a public servant, he must have custody of the prisoner, the prisoner must be a state prisoner or a prisoner of war, and the public servant must voluntarily allow such prisoner to escape. The punishment prescribed under the section is to the extend of life imprisonment or imprisonment of either description for a term which may extend to 10 years and fine in case a public servant voluntarily allows a prisoner to escape from his custody. The offence section 128 of IPC is cognizable, non-bailable non-compoundable, and prosecutable by the Court of Session.

The accused should be a public servant or
The confined person should be a prisoner of State or war or
Such prisoner should be in the custody of the accused person or
The accused servant should have allowed such a prisoner to escape voluntarily

11. Public servant negligently suffering such prisoner to escape

The offence under Section-129 is similar to that of section 128, except for the fact that under section 129 the public servant is negligent in discharging his duty in keeping the prisoner in custody, whereas in section 128 the act is intentional in allowing the state prisoner or prisoner or war to escape from the custody. The section provides punishment which may extend to 3 years of imprisonment and fine. The offence the section 129 of IPC is cognizable, bailable non-compoundable, and prosecutable by Magistrate of First Class.

The accused should be a public servant, surely at the time of committing the offence.
Such a prisoner should be in the custody of the accused person.
Such a prisoner should be rescued or escaped.
Such an escape or rescue should be because of the negligence of the accused.

12. Aiding escape of, rescuing or harbouring such prisoner

Section-130 deals with aiding the escape of, or rescuing or harbouring a state prisoner or prisoner of war who has escaped from lawful custody. The punishment under this section may extend to life imprisonment or imprisonment of either description which may extend to 10 years, and fine. The offence section 130 of IPC is cognizable, non-bailable non-compoundable, and prosecutable by the Court of Session.

Ingredients of section 130 – The essential ingredients of this section are:
The accused knowingly aids or attempts to aid, rescue, harbour or conceal such prisoner.
Such a prisoner should be in lawful custody.
The act or omission should be done intentionally or knowingly.

Conclusion

Offences against the State play an important role in regulating and maintaining public order. The people of the State have a right to criticise the policies of the govt but they should not misuse their liberty to cause harm the people around them or the govt. Waging war against India and against power is a punishable offence. The law protects the high officials, such as the President, the Governor of every State etc. in case of an assault against them. And most importantly, sedition is considered to be one of the most dangerous cognizable offences against the State. Thus, it can be concluded that the State needs to restrict the freedom of the people of the country for the betterment of the State.

Citations

^[1] State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru (2005)11 SCC 600, AIR 2005 SC 3820

^[2] AIR 1933 All 690, 145 Ind Cas 481

^[3]AIR 2008 SC 2419

^[4]AIR 1951 EP 27

^[5]AIR 1962 SC 955

References