IPC – Offences against State – Part – 09

Chapter VI of the IPC entitled “of offences against the State” deals with serious nature of offences. In this chapter every offence is cognizable, non-bailable and trial by session court. None of the country take is easy but treats it as the serious most offence. Therefore, offences against the state are enumerated in first chapter of specific offences. This chapter consists of sections 121 to 130 which comprises of four principal offences.

(1)     Waging war against the government (Sections 121,121-A, 122 and 123);

(2)     Waging war against an Asiatic alliance (Sections 125, 126 and 127);

(3)     Overawing the government (Section 124 and 124A); and

(4)     Permitted or aiding to escape of a State prisoner or a prisoner of war (Sections 128, 129 and 130)

(1) WAGING WAR AGAINST THE GOVERNMENT

The offence of waging war against the state is covered by sections 121 to 123 of IPC. Section 121 of IPC covers all three forms of waging of wars; including (i) waging of war, (ii) attempting to wage war, or (iii) abetting waging of war, against the Government of India. On the other hand, conspiracy to commit waging of war or attempting to wage war or abetting waging of war is covered by section 121A. The illustration to section 121 made it clear that if ‘A’ joins an insurrection against the Government of India; he has committed the offence waging war. Section 122 discuss the situations of preparation for waging war and section 123 deals with concealing with intent to facilitate design to wage war.

As far as waging of war, attempting to wage war, or abetting waging of war, against the Government of India is more serious offence than the conspiracy to commit such offence. The plain reading of sections 121 and 121A explicates conspiracy to commit offence of waging of war, or attempting to wage war, or abetting waging of war may be commit by a person within or without India. On the other hand, it is not explicated by section 121 but recent interpretation of the Supreme Court made it clear that section 121 also applies to foreigners.

The prosecutor has to establish in bring home charge of section 121A – (i) it is conspiracy for waging war or abated a person to wage war or attempt to waging war; and (ii) the conspiracy is to overawe by means of criminal force or the show of criminal force, against the Central Government or any State Government. It is not necessary that any act or illegal omission should take place pursuant to the conspiracy, in order to constitute the said offence.

The conspiracy to wage war means a person who within or without India conspires to commit any of the offences of waging of war, attempting to wage war, or abetting waging of war, or conspires to overawe, by means of criminal force or the show of criminal force, the Central Government or any State Government is called conspirator under section 121. To constitute a conspiracy under section 121A, it is not necessary that any act or illegal omission shall take place in pursuance thereof.

As far as nationality of accused under section 121 is concerned, we find two views. There are different judgements a person who is neither a citizen nor a resident alien cannot be accused of high treason.[1] Those views, assuming that they are clearly discernible from the extracted passage, need not be the sole guiding factor to construe the expression ‘waging war’. Though the above observations were noticed in Nazir Khan’s case, the ultimate decision in the case shows that the guilt of the accused was not judged from that standpoint. On the other hand, the conviction of foreigners (Pakistani militants) was upheld in that case.[2]

Section 122 fixed the liability of a person preparing to waging war. It is one of three sections in IPC which fixes the liability for preparation of an offence. The circumstances as prescribed by the section says that  whoever collects men, arms or ammunition or otherwise prepares to wage war with the intention of either waging or being prepared to wage war against the Government of India, is an liable for preparing to waging war.

Section 123 deals with situation of ‘concealing with intent to facilitate design to wage war’. It confirms that whoever by any act, or by any illegal omission, conceals the existence of a design to wage war against the Government of India, intending by such concealment to facilitate, or knowing it to be likely that such concealment will facilitate, the waging of such war, is said to be a person who ‘concealing with intent to facilitate design to wage war’.

(1.1) SCOPE OF WAGING WAR

The approach of judiciary upon section law relating to waging war has been changed after independence. The court after an elaborate discussion on the scope of section 121 with reference to the old English cases on the subject of “levying-war” and high treason, the following principles were culled out:

(i)      No specific number of persons is necessary to constitute an offence under section 121 of IPC.

(ii)     The number concerned and the manner in which they are equipped or armed is not material.

(iii)    The true criterion is quo animo did the gathering assemble.

(iv)    The object of the gathering must be to attain by force and violence an object of a general public nature, thereby striking directly against the King’s authority.

(v)     There is no distinction between principal and accessory and all who take part in the unlawful act incur the same guilt.[3]

(1.2) MEANING OF WAGING WAR

The term ‘wages war’ was considered to be a substitute for ‘levying war’ in the English Statute of High Treason of 1351. The principal heads of treason as ascertained by that Statute were: (i) ‘imagining the King’s death, (ii) levying war and (iii) adhering to the King’s enemies. The expression ‘war’ preceded by the verb ‘wages’ admits of many shades of meaning. The Law Commission conceived the term ‘wages war against the Government’ naturally to import a person arraying himself in defiance of the Government in like manner and by like means as a foreign enemy would do.

The expression ‘waging war’ means “waging war in the manner usual in war”. In order to support a conviction on such a charge, it is not enough to show that the persons charged have contrived to obtain possession of an armoury and have, when called upon to surrender it, used the rifles and ammunition so obtained against the King’s troops. It must also be shown that the seizure of the armoury was part and parcel of a planned operation and that their intention in resisting the troops of the King was to overwhelm and defeat these troops and then to go on and crush any further opposition with which they might meet until either the leaders of the movement succeeded in obtaining possession of the machinery of Government or until those in possession of it yielded to the demands of their leaders.[4] The case was not held of waging war.

The Supreme Court in Parliament attack case observed that there is no doubt that the offence of waging war was inserted in IPC to accord with the concept of levying war in the English Statutes of treason. Therefore, we have to understand the expression “wages war” occurring in Section 121 broadly in the same sense in which it was understood in England while dealing with the corresponding expression in the Treason Statute. However, the Supreme Court had viewed the expression with the eyes of the people of free India and it had modulated and restricted the scope of observations too broadly made in the vintage decisions so as to be in keeping with the democratic spirit and the contemporary conditions associated with the working of our democracy. The oft-repeated phrase ‘to attain the object of general public nature’ coined by Mansfield, CJ and reiterated in various English and Indian decisions should not be unduly elongated in the present day context.

The most important is the intention or purpose behind the defiance or rising against the Governmental machinery. Though the modus operandi of preparing for the offensive against the Government may be quite akin to the preparation in a regular war, it is often said that the number of force, the manner in which they are arrayed, armed or equipped is immaterial. Even a limited number of persons who carry powerful explosives and missiles without regard to their own safety can cause more devastating damage than a large group of persons armed with ordinary weapons or fire arms. Then, the other settled proposition is that there need not be the pomp and pageantry usually associated with war such as the offenders forming themselves in battle-line and arraying in a war like manner. Even a stealthy operation to overwhelm the armed or other personnel deployed by the Government and to attain a commanding position by which terms could be dictated to the Government might very well be an act of waging war.

While these are the acceptable criteria of waging war, the Supreme Court dissociated itself from the old English and Indian authorities to the extent that they lay down a too general test of attainment of an object of general public nature or a political object. The Court must be cautious in adopting an approach which has the effect of bringing within the fold of Section 121 all acts of lawless and violent acts resulting in destruction of public properties etc., and all acts of violent resistance to the armed personnel to achieve certain political objectives. The moment it is found that the object sought to be attained is of general public nature or has a political hue, the offensive violent acts targeted against armed forces and public officials should not be branded as acts of waging war. The expression ‘waging war’ should not be stretched too far to hold that all the acts of disrupting public order and peace irrespective of their magnitude and repercussions could be reckoned as acts of waging war against the Government. A balanced and realistic approach is called for in construing the expression ‘waging war’ irrespective of how it was viewed in the long past.

The attack on Parliament of India cannot be viewed on the same footing as a terrorist attack on some public office building or an incident resulting in the breach of public tranquility. The deceased terrorists were roused and impelled to action by a strong anti-Indian feeling. The huge and powerful explosives, sophisticated arms and ammunition carried by the slain terrorists who were to indulge in ‘Fidayeen’ operations with a definite purpose in view, is a clear indicator of the grave danger in store for the inmates of the House. The planned operations if executed, would have spelt disaster to the whole nation. A war-like situation lingering for days or weeks would have prevailed.

(1.3) MEANING OF INSURRECTION

Insurrection is the gist of the offence under sections 121 and 121A. ‘Insurrection’ as defined in dictionaries and as commonly understood connotes a violent uprising by a group directed against the Government in power or the civil authorities. Rebellion, revolution and civil war are progressive stages in the development of civil unrest the most rudimentary form of which is ‘insurrection’.[5] An act of insurgency is different from belligerency. It needs to be clarified that insurrection is only illustrative of the expression ‘war’ it would cover situations analogous to insurrection if they tend to undermine the authority of the Ruler or Government.

(1.4) DIFFERENCE BETWEEN ‘WAR’ AND ‘TERRORIST ACTS’

War and terrorist acts to overawe the established Government have many things in common. It is not too easy to distinguish them, but one thing is certain, the concept of war imbedded in Section 121 is not to be understood in international law sense of inter-country war involving military operations by and between two or more hostile countries. Section 121 is not meant to punish prisoners of war of a belligerent nation. Organizing or joining an insurrection against the Government of India is also a form of war.

‘Terrorist acts’ are so conspicuous now-a-days. Though every terrorist act does not amount to waging war, certain terrorist acts can also constitute the offence of waging war and there is no dichotomy between the two. Terrorist acts can manifest themselves into acts of war. In fact, terrorist acts prompted by an intention to strike at the sovereign authority of the State Government, tantamount to waging war irrespective of the number involved or the force employed.

Unlawful assemblies, riots, insurrections, rebellions, levying of war are offences which run into each other and not capable of being marked off by perfectly definite boundaries. All of them have in common one feature, namely, that the normal tranquility of a civilized society is disturbed either by actual force or at least by the show and threat of it.

(1.5) PUNISHMENT FOR WAGING WAR

Whoever wages war, or attempts to wage war, or abets the waging of such war against the Government of India, shall be punished with death, or imprisonment for life and shall also be liable to fine. On the other hand, conspiracy to wages war or attempt to wages war or abets to wage war is punishable with imprisonment for life, or with imprisonment of either description up to ten years, and shall also be liable to fine. Section 122 prescribed punishment for preparation for waging war and section 123 prescribed punishments for concealing with intent to facilitate design to wage war. Punishment for waging war may be studied as follows –

(1.6) WAGING WAR AGAINST AN ASIATIC ALLIANCE

Sections 125 to 127 deal with offence against an Asiatic alliance. In the present time this offence has less importance but just for information that section 125 made it specific offence of waging war against any Asiatic Power in alliance with the Government of India and section 126 deals with committing depredation on territories of Power at peace with the Government of India. Section 127 forces the person receiving property taken by war on depredation.

Depredation is plunder and to be punishable under this section. It must be a raid by band of men is a foreign territory for plunder. Even preparation to commit depredation falls under this section. The object of raid is not to wage war but only to plunder.

This section provides for punishment of persons who knowingly receives property taken by war or depredation against an Asiatic power in alliance or at peace with the government of India.

(2) OVERAWING THE GOVERNMENT

The offences relating to overawing the government may be discussed under two heads – (i) assaulting the president or governor of the state, and (ii) sedition. As far as the first offence is concerned it never happened in India after its independence.

Section 124 states that whoever, with the intention of including or compelling the President of India, or the Governor or any State, to exercise or refrain from exercising in any manner any of the lawful powers of such President or Governor, assault or wrongfully restrains, or attempts wrongfully to restrain, or overawes, by means of criminal force or the show of criminal force, or attempts so to overawe, such President or Governor, shall be punished with imprisonment up to seven years, and fine.

Essential Ingredients of this section are: (i) the person assaulted was the President of India or Governor of State. (ii) The accused assaulted or attempted to assault such person or wrongfully restrained or attempted to restrain such person or that the accused used a criminal force or show of criminal force. (iii) The accused intended to induce or refrain from exercising any of their lawful powers.

(2.1) SEDITION

According to section 124-A of IPC whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India, is said to be offence of sedition. The section further explicates that –

The expression “disaffection” includes disloyalty and all feelings of enmity. Comments expressing disapprobation of – (i) the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section, or (ii) the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explaining the meaning of sedition, the Supreme Court has observed that under section 124-A of IPC, the meaning of sedition is disaffection or defamation or politically hatred against the government established by law applicable in India.[6]

(2.2) BASIC ELEMENTS OF SEDITION

To complete the offence of sedition, the section requires two elements to be proved, namely –

(a)     The accused spoke or wrote the words or made by sings or visible representations or did similar acts complaint; and

(b)     The act brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government of India.

The gist of the offence is the intention to bring hatred or contempt toward the government. But, a comment expressing disapproval of government or any measures of government or administrative or other action of government, without exciting hatred or disaffection is not is not sedition.

The offence of sedition under section 124A is the doing of certain acts which would bring the Government established by law in India into hatred or contempt, or create disaffection against it.[7]

(2.3) CONSTITUTIONAL VALIDITY : TRANSFORMATION

The Constitutional validity was challenged before the Supreme Court in 1962 in Kedar Nath’s case. Before this case, it was matter of controversy among the various High Courts of India that section 124-A is constitutionally valid or not. The Supreme Court held that section 124-A could be interpreted in such a way that only acts which constitute incitement to violence or disorder would be punishable under this section and act not amounting such tendency are not punishable and therefore, the section does not violate article 19(1)(a) of the constitution.[8]

Section 124A which was enacted in 1870 was subsequently amended on several occasions. The Supreme Court in Kedar Nath’s case (1962) observed that now we have a Constitution having Fundamental Rights all statutory provisions including Section 124A IPC have to be read in a manner so as to make them in conformity with the Fundamental Rights. Although according to the literal rule of interpretation we have to go by the plain and simple language of a provision while construing it, we may have to depart from the plain meaning if such plain meaning makes the provision unconstitutional.[9] Even before the Constitution, we had the Government of India Act, 1935 and other Government of India Acts but they didn’t had fundamental rights like the Constitution of India, Act, 1950.

Similarly, in another case, the Supreme court was of the opinion that the provisions in various statutes i.e. 3(5) of TADA or Section 10 of the Unlawful Activities (Prevention) which on their plain language makes mere membership of a banned organization criminal have to be read down and we have to depart from the literal rule of interpretation in such cases, otherwise these provisions will become unconstitutional as violative of Articles 19 and 21 of the Constitution. It is true that ordinarily we should follow the literal rule of interpretation while construing a statutory provision, but if the literal interpretation makes the provision unconstitutional we can depart from it so that the provision becomes constitutional.[10]

The rule was applied by the Supreme Court in Kedar Nath Singh case in its construction of Section 124A of the IPC. The Section, as construed by; did not make it essential for an activity to come within its mischief that the same should involve intention or tendency to create disorder, or disturbance of law and order or incitement to violence. [11] The Federal Court in Niharendra Dutta (1942) had, however, taken a different view.[12] In the Supreme Court when the question came up as to the Constitutional validity of the Section, the Court differing from the Privy Council adopted the construction placed by the Federal Court and held that on a correct construction, the provisions of the Section are limited in their application “to acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence; and one of the reasons for adopting this construction was to avoid the result of unconstitutionality in view of Articles 19(1)(a) and 19(2) of the Constitution.[13]

(2.4) PUNISHMENT FOR SEDITION 

Who has committed the offence of sedition shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine. The offence is cognizable, non-bailable and triable by Session Court.

(3) HELPING TO ESCAPE OF A STATE PRISONER

Sections 128 to 130 of IPC deal with five different situations when a person can be liable for helping or assisting a prisoner of State, by allowing him to scape, or negligently suffering such prisoner to escape, or aiding escape of, or rescuing or harbouring such prisoner.

(3.1) PUBLIC SERVANT VOLUNTARILY ALLOWING PRISONERS TO ESCAPE

Section 128 says that whoever, being a public servant and having the custody of any State prisoner or prisoner of war, voluntarily allows such prisoner to escape from any place in which such prisoner is confined, shall be punished with imprisonment for life, or imprisonment up to ten years, and fine.

To establish the offence under section 128, the prosecution has to be proved following four points – (i) The accused must be a public servant. (ii) The accused must have the custody of the prisoner. (iii) Such person escaped from the place where he was confined. (iv) That the accused voluntarily allowed such prisoner to escape.

(3.2) PUBLIC SERVANT NEGLIGENTLY SUFFERING PRISONER TO ESCAPE

Section 129 says whoever, being a public servant and having the custody of any State prisoner or prisoner of war, negligently suffers such prisoner to escape from any place of confinement in which such prisoner is confined, shall be punished with simple imprisonment up to three years, and fine.

To establish the offence under section 129, the prosecution has to be proved following three points – (i) The accused must be a public servant. (ii) The accused must have the custody of the prisoner. (iii) The accused negligently allowed the said prisoner to escape from the place where he was confined.

The only difference between section 129 and section 128 is that in the present section the state prisoner is allowed to escape by the negligence of the government servant while under section 128, the prisoner is allowed to escape.

(3.3) AIDING ESCAPE OF, RESCUING OR HARBOURING PRISONER

Section 130, unlike earlier sections, applies to everyone who aiding escape of, rescuing or harbouring prisoner of state. It says that whoever knowingly aids or assists any State prisoner or prisoner of war in escaping from lawful custody, or rescues or attempts to rescue any such prisoner, or harbours or conceals any such prisoner who has escaped from lawful custody, or offers or attempts to offer any resistance to the recapture of such prisoner, shall be punished with imprisonment for life, or with imprisonment up to ten years, and fine.

To establish the offence under section 130, the prosecution has to be proved following three points – (i) The state prisoner or the prisoner of war in question was in lawful custody. (ii) The accused aided or assisted the escape of such prisoner/ the accused harboured or concealed any such prisoner. (iii) The accused rescued or attempt to rescue any such prisoner/ The accused resisted or attempt to resist the re-capture of such prisoner.

“To harbour a person” is to give him shelter and protection. The knowledge must be that the person assisted is a state prisoner or a prisoner of war.

(3.4) PUNISHMENT FOR HELPING PRISONERS OF STATE

* * * * *

[1]     House of Lords in Joys v. DPP, 1946 All ER 186 and of Privy Council in Lodewyk Johannes v. AG of Natal, 1907 AC 326; Anthony Crammer v. USA, 325 US 1 and United States v. Villato, 1797 CC Pen 419 and 2^nd Report of the Law Commissioners on the Indian Penal Code.

[2]     Nazir Khan’s case 2003 CriLJ 5021 and Afzal case (Known as Parliament Attack case).

[3]     Maganlal Radhakrishan, AIR 1946 Nag 173; see also Rangoon High Court in AIR 1931 Rang 235.

[4]     Mir Hasan Khan v. the State, AIR 1951 Pat 60.

[5]     Pan American World Air Inc. v. Actna Cas & Sur Co., 505 FR 2^nd 989.

[6]     Bilal Ahemad Kallu v. State of Andhra Pradesh, (1987) Supreme Today 127.

[7]     Bilal  Ahmed  Kaloo v. State of Andhra Pradesh , (1997) Supreme Today 127.

[8]     Kedanath Singh v. State of Bihar, AIR 1962  SC 955.

[9]     Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.

[10]   Sri Indra Das v. State of Assam, (2011) 3 SCC 380 : 2011 (2) SCALE 312.

[11]   The Privy Council in Bal Gangadhar Tilak v. Queen Empress ILR 22 Bom 528 (PC); Annie Besant v. A-G of Madras AIR 1919 PC 31; and Emperor v. Sadasiv Narain AIR 1947 PC 84.

[12]   Niharendra Dutta v. Emperor AIR 1942 FC 22

[13]   Sri Indra Das v. State of Assam, (2011) 3 SCC 380 : 2011 (2) SCALE 312.