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OFFENCES AGAINST STATE

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This article is written by Asna Parveen of 3rd Semester of Atal Bihari Vajpayee School of Legal Studies, CSJM University, Kanpur, an intern under Legal Vidhya.

Abstract

The word “State” has been defined in Section 12 of the Constitution of India however, it only describes the necessary institutions that fall under the dimensions of State, the State includes the Government and the Legislature of each state and all the Local authorities within the territory of India or under the control of the Government of India. According to a layman State can be defined as a political body that governs or functions within the territory of India.

The paramount concern of every state is to protect itself against any kind of Disruption and The Indian Penal Code, 1860 deals with such kind of Offences i.e.  Offences Against the State under Chapter VI (section 121- 130).  The aim of these sections is to protect the state as a whole in every possible conditions. The integrity and the existence of State can be Shielded by giving rigorous punishment in matter of Offences against the State like giving Life Imprisonment and Death Penalty.

This article will highlight the punishments for the offences against the State, landmark cases related to the offences and the present scenario of these offences. This article will also put light on the International Scenario regarding these offences. This article aims to contribute to a deeper understanding of offences which comes under the Chapter VI of Indian Penal Code and its punishment which can vary according to the nature of Crime.

Keywords– Waging War, Sedition, State Prisoner, Rioting, Conspiracy, Offences against States, Assaulting, Asiatic Alliance, Public Servant.

Introduction

Most of the States are independent and are sovereign so they also have the right of Self- preservation. The existence of a democratic State brings the reliability which advances the well- being of the citizens. Since the ancient time the king have the right to preserve the state, the violence committed against the State was considered as lese majestic i.e. treason or disrespecting of monarch, to prevent these kind of violence and to punish the accused for such crime many laws were made at that time. Offences against the State can be defined as targeting the integrity and sovereignty of a nation. Chapter VI of Indian Penal Code, 1860 which include twelve section (section 121 to 130) that deals with the offences against the State. These can be further divided into:

  1. Waging War (it can be against the government of India and any other institution under the definition of State)
  2. Assaults on high dignitaries.
  3.  Escape of State prisoner
  4.  Sedition

-Section 121-123 deals with Waging, attempting, or conspiring to wage war, collecting men and arms etc. to wage war against the Government.                                                         

-Section 124 deals with Assaulting high dignitaries with intent to compel or restrain the exercise of any unlawful power.

-Section 124-A deals with Sedition.

-Section 125 deals with War against an Asiatic power at peace with the Government of India,

Section 126 include offences like committing depredations on the territory of any power in alliance or at peace with the government. Knowingly receiving or retaining property obtained from such depredations (Section 127). 

-Section 128-130 deals with permitting, aiding or negligently suffering the escape of, or rescuing or harboring a state prisoner.

Historical Background Related to Offences Against the State

In the ancient and medieval period king was considered as a Supreme authority and betraying king was analogous to the disloyalty against the State, and the punishment for treason was ‘Death’. During the reign of Maurya’s and Guptas they have the system of Spies and undercover agent, if their identity get disclosed, they were penalized with Death penalty we can see this type of provisions in Mughal Empire also where if the spies betrayed the sovereign, they were doomed death penalty. The laws under the Indian Penal Code was made by the Britishers because they want to hold the Indian territory and it’s people, and we can see that these legislations still exist with some reasonable amendments.

Waging War

The word waging war is equivalent to the English concept ‘levying war’ which has been defined by Lord Mansfield, CJ in the case of R v, Gordan[1], he said that there are two kinds of waging War – one against the person of the king, to prison, to dethrone him or to kill him or to make him change measures or remove councilors etc., second against the king in his legal Capacity. The expression waging War means Waging war in the manner usual in war. In other words, in order to support a conviction on such a charge it must be shown that the seizure of the armory was part and parcel of a planned operation and their intention in resisting the troops of the State was to conquer and defeat these troops and then to go and crush any opposition with which they might meet until the leaders succeeded in obtaining the possession of the machinery of the government.

Waging war against the Government of India

 Section 121 deals with Waging, attempting to wage war or Abetting Waging of war, against the Government of India. It lays down that any person or whoever wages war against the government of India, or attempts to Wage such war, or abets to wage such war, shall be penalized with death or life imprisonment, and shall also be liable to fine. ‘Whover’ used in this section applies to everyone, whether an Indian citizen or a foreigner.

Ingredients

This section embraces every description of War, whether it by the Insurrection or invasion. A compulsion is not a defence to a charge under section 121, neither the no. of persons nor the manner in which they are assembled, the main criterion is there purpose or intention of gathering. The object of the gathering must be to attain by force and violence and an object of general public striking directly against the government or it’s authority.

In the case of State v. Mohd. Afjal and others[2] also known as ‘Attack on Parliament case’ it was held that a full blood attack on parliament during it’s in Session, would definitely be considered as an act of war against the Government of India when the president and all the executive and legislative members were present at the parliament. This single act by one man is more devastating than 100-armed men attacking the Parliament thus it would be an act of war.

As regards to the abetment of waging of war the purpose of the investigation should be the waging of the war. In general law we can see a distinction is made for the punishment for those which have succeeded in abetment and for those who have failed, but Section 121 of IPC treats everyone equally whether an abettor whose instigation has led to a war and one whose instigation has taken no effect whatever.

In case of G.D. Sawarkar v. Emperor[3], the accused Veer Sawarkar published a poetry book in which he motivated the Indians to rebel against the Britishers and drag them out of the country even by using violence, if necessary. He wanted people to adopt Gorilla Warfare technique to uproot British rule from India. The accused (Savarkar) was held guilty of offence under Section 121, IPC for inciting Indian masses to wage war against the British rulers.                                                                                                       Drafting Committee of the IPC observed that when a large group rises and assembles to attain by force and violence, any object of a general public nature it will be considered as a levying war against the State. It is not no. of force but the intention that constitute the offence and distinguish it from riot. The Madras High Court in Kunhi Kadir v. Emperor[4], held that the participation in the Khilafat movement was an attempt of waging war under Section 121 as the object if the object of the people was to over throw the British Government in power.

Distinction Between Waging War and Rioting

Section 121A

Section 121A lays down whosoever within or without India conspires to commit any of the offences punishable by Section 121, or conspires to overawe with, by means of criminal force or the show of Criminal force, the Central Government, or any the State Government, shall be punished with imprisonment for life or with imprisonment of either description which may extend to the term of 10 years, and shall also be liable to fine.                                                                   This Section was inserted by IPC Amendment Act 27 of 1870. This section punishes two types of Conspiracy;

Two or more person agrees to wage war against the government of India or any State Government is sufficient to hold accused liable. No act or Illegal Omission is necessary for such conspiracy. To convict a person under Section 121A one has to prove that (1) they had entered into conspiracy and (2) to commit an offence punishable under section 121 of IPC or to overawe the criminal force, or to show criminal force against the central government or any of the state Government.

In the case of Barindra Kumar Ghosh v. Emperor,[5] also known as Meerut Conspiracy Case, it was proved that the accused who were members of a secret society were operating from Calcutta and holding meetings at different places attended by known and unknown persons conspiring to wage war against the British government for which they had collected sufficient arms and ammunition. They therefore, was held guilty of offences under Section 121, 121A, 122 and 123 of IPC.

In the case of S.H. Jhebvala v. Emperor[6] the accused person has formed the union along the lines of USSR and had allegiance with Soviet Russia, the accused were charged and convicted by the Session Court under Section 121A of IPC for Conspiracy to Wage war against the Government of India. But on appeal the High Court of Allahabad set aside the conviction and held that formation of unions on the lines of another country by no stretch of imagination constitutes waging of war against the government.

Section 122

Section 122 of IPC provides that whoever collect arms or else prepares to wage war with the intention of either waging or being prepared to wage war against the government of India, shall be punished with life imprisonment or imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine. This section makes the very act of Preparation to wage war against the Government of India or any state is punishable. The punishment will vary depending on the seriousness of preparation.

Preparation includes (i) collection of men (ii) collection of arms or ammunition (iii) otherwise prepares to wage war or overawe the legally established government. The offence under section 122 is cognizable, non- bailable and non- compoundable and is triable by the court of session.

Section 123       

Section 123 talks about concealing with the intent to facilitate design to wage war, whoever by an 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, shall be penalized with imprisonment which may extend to10 years and shall also be liable to fine

The object of this 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 or to bring the offenders to book as decided in Ram Balak v. State of Bihar[7].

This section visualizes a person who with knowledge, either by an act or illegal omission with intention to withheld

(1) a design to war against the government Of India

(2) Indicted must have knowledge of such design

 (3) the accused must have concealed the existence of such design from authority.

(4) there by intended to help the waging of war successfully.

It is the duty of the public to inform any commission of the intention of such person to commit certain offences. Moreover, it is very important to report any offence punishable under section 121 IPC to 126 IPC. Section [39 (1) CrPC] by the public unless there is a reasonable excuse for not doing so.

Section 124

Section 124 deals with Assaulting President, Governor etc. with intent to compel or exercise of any lawful power. It lays that any person who assault or wrongfully restraints or attempts wrongfully to restraint, or overawe by means of criminal force or the show of criminal force, or attempts to overawe such President or Governor shall be punished with either imprisonment of either description for a term which may extend to 7 years or shall be liable to fine.

This provision is based on the principle that the high offices of the state who are required to run the administration of Governor should be free from the fear of particular detriment and injury while discharging their legal duties. However, the protection is not absolute. It extends only so long as they discharge their official functions.

Sedition (124-A)

Sedition- Whover by words, signs or visible representation brings or attempts to bring hatred towards the Government established, commits the offence of sedition shall be punished with imprisonment for life or any shorten term with or without fine.

Ingredients

Section 124-A was amended in the code in 1870. This law become controversial after India became independent as constitution provided for Freedom of Speech and Expression guaranteed as a Fundamental Right under article 19(1)(i) of the constitution.

The English has promulgated a lot of laws against the freedom fighters and to choke their voices. Originally Macaulay had suggested the concept of sedition in IPC by his draft penal code 1870, but it was omitted from IPC. But the Britishers felt that the Sedition should be included in IPC and amended IPC in 1870 to add 124-A. It was amended with minor changes in 1898, 1937, 1948, 1950 and part B states (law) Act 1951 respectively.

In Navrang Singh v. State of Punjab[8] the Propaganda Secretary of the Gurudwara in his speech gave a very high figure of casualties following army action in Punjab. He was charged of Sedition and convicted for the offence. On appeal, the High Court held that though the appellant (accused) had not incited or provoked anyone to commit violence, but the tendency of his speech was to bring the government into contempt and was every likelihood of violence and public disorder erupting as a result of the Speech.

Constitutional Validity of Sedition

Sedition is libel (defamation) of the established authority of the law i.e. Government. This law has always been criticized for restricting our Freedom of Speech. In landmark case of Kedar Nath v. State of Bihar[9], the Supreme Court said Sedition in the ordinary sense means a stirring up of rebellion against the Government. It was held that the sedition is constitutionally valid.

In Balwant Singh v. state of Punjab the accused were alleged to have shouted some rebellious slogans in a crowded place on the day the former prime minister Smt. Indira Gandhi was assassinated. They were government servants. However, their slogan shouting did not invoke any public responses. It was held that mere raising slogans once or twice by two individuals cannot be said to be aimed at inciting or attempting to incite hatred or disaffection towards the Government established by law. The accused were therefore not held guilty.

Waging War against the Asiatic Alliance with Indian Government

Section 125 lays down any person whether Indian citizen or non- citizen wages war against the government of Asiatic power in alliance with the Government of India, or attempts to wage war, or abets to wage such war shall be punished with imprisonment with life imprisonment to which may be added, or with a term which may extend to seven years, or with fine.

This Section is based on international peace and Coexistence and also to have friendly relations with the neighbors. Perhaps it will be appropriate to delete Asiatic Power and put International Power in its place. It is more relevant as Article 51 which enjoins upon the state to promote the international peace and security.

Section 126

Section 126 states committing depredation on territories of Power at peace with Government of India. Whoever commits depredations, or make preparation for the same on the territories of any power in alliance with Government of India shall be punished with imprisonment of seven years and shall be subject to fine. This Section makes depredation (damage), robbing or plundering an offence where as 125 IPC deals with waging war. This section has wider scope as it is for international countries where as for 125 only Asiatic power is limited. Depredation means to plunder as rob.

Section 127

Section 127 deals with Receiving property taken by war or depredation mention in sections 125 and 126. Whoever, receives any property knowing the same have been taken in the commission of any of the offences mention in section 125 and 126, shall be punished with imprisonment for seven years and shall also be subject to fine.

Ingredients

Escape of State Prisoner

Section 128

Section 128 deals with the Public Servant voluntarily allowing prisoner of state or of war to escape. Anyone being a public servant and having the custody of a state prisoner or prisoners of war, voluntarily allows such prisoner to escape from the place where he was confined shall be punished with life imprisonment or imprisonment with a term which may extend to ten years and shall be liable to fine.

Principles

State Prisoner is one whose arrest and imprisonment is necessary in order to preserve the security and integrity of India from foreign hostility while Prisoner of War is an enemy taken in arms and not others who being in arm submit and surrender themselves.               

Section 129

Section 129 deals with public servant negligently suffering such prisoner to escape. It lays down that any person being a public servant having the custody of a any state prisoner or prisoner of war, negligently suffers such prisoner to escape from place of confinement shall be punished with simple imprisonment for a term which may extend to term of three years and shall be liable to fine.

Ingredients

Section 130

Section 130 deals with those aiding escape of, rescuing or harboring such prisoner. Whover knowingly aids or assist any state prisoner or prisoner of War in escaping from lawful custody or rescues or attempts to rescue any such prisoner or conceals such prisoner who has escaped from the police custody or imprisonment shall be liable with life imprisonment for life or with imprisonment which may extend to term of ten years, and shall be liable to fine.

Ingredients

Conclusion

In conclusion, offences against the state are a critical aspect of criminal law, as they encompass a range of actions that pose threat to the stability, sovereignty of a nation. These offences are subject to strict legal regulations and penalties in order to protect the integrity of a country. It is the foremost duty of every nation to make a balance between objective to maintain the rule of law and preserve the rights and freedom of citizens while safeguarding the state’s interests.

References

[1]. [2nd volume] [Ratanlal & Dhirajlal], [Indian Penal Code] [35th edition, 2021]

[2] Unacademy  https://unacademy.com (last visited on 3 November)

[3] International Journal of Law Management and Humanities https://www.ijlmh.com (last visited on 4 November)

[1] (2001) 99 ER 72.

[2] AIR 2005 SC 3820

[3] (1909) 12 Bom LR 105.

[4] (1920) 42 MAD LJ 108

[5] (1909) 37 Cal. 467

[6] (1933) 55 All 1040

[7] AIR 1964 Pat 62

[8]  AIR 1995 Sc 1785

[9] AIR 1962 SC 955

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