OFFENCES AGAINST THE STATE

This article is written by Adity Kumari of 3^rd Semester of Bangalore Institute of Legal Studies, an intern under Legal Vidhiya

ABSTRACT

This paper delves deeper into crimes against the state. In this section, I discussed what constitutes an offence against the state and their objectives. It also goes over the sections of the IPC in Part VI that deal with crimes against the state. The Criminal Procedure Code (CrPC) and the penalties for crimes against the state are also discussed in this paper. Following that, the paper discussed some case laws that will help readers understand the concept of crimes against the state. As a result, this paper has provided a thorough examination of the given concept, which will be particularly useful to any law student.

Keywords

Offence, IPC, section 121 to 130, CrPC, section 196, case laws

INTRODUCTION

All crimes are considered offenses against the State or government since they hinder public order and violate national integrity. However, some criminal activities, such as treason, sedition, rebellion, war, and so on, are directed against the existence of the State itself. These are violations of the state’s sovereignty and integrity. Since then, there have been offences against the state, and in response, laws to secure and protect the state have been enacted. As a result, Chapter VI of the Indian Penal Code addresses offences against the state. These codes are intended to keep the public safe. When someone declares war on the state, the state’s existence can be protected by enforcing harsh penalties such as life imprisonment and the death penalty.

OFFENCES AGAINST STATE UNDER IPC

The Indian Penal Code (IPC) of 1860 is India’s biggest criminal code. It is a comprehensive code that addresses all substantive aspects of criminal law. Crime against the state is covered in Chapter VI of the Indian Penal Code, which has been divided into sections 121 to 130. Offences against the state fall into the following groups:

1. Warring or attempting to war against the Indian government
2.  Assaulting Government Officials
3. Sedition
4. Warfare against a power at peace with the Government of India OR depredation against such a power
5. Abetting or harbouring a state prisoner

Section 121

Waging, attempting to wage, or abetting the waging of war against the Government of India – Whoever wages war against the [Government of India], attempts to wage such war, or aids and abets the waging of such war, shall be punished by death or [life imprisonment] [and shall also be fined]. Illustration-A joins an insurgency against the [Government of India]. A has committed the offence described in this section.

Section 121A

Conspiracy to commit offences punishable by section 121 – Whoever, within or without [India], conspires to commit any of the offences punishable by section 121, or conspires to overawe, by means of criminal force or the display of criminal force, [the Central Government or any [State] Government], shall be punished with [life imprisonment] or imprisonment of either description, which may extend to ten years, [and shall also be liable to fine].

Section 122

Collecting arms, etc., with intention of waging war against the Government of India – Whoever gathers men, arms, or ammunition or otherwise prepares to wage war with the intent of either waging or being prepared to wage war against the [Government of India] shall be punished with [life imprisonment] or imprisonment of any description for a term not exceeding ten years, [and shall also be liable to fine].

Section 123

Concealing with intent to facilitate design to wage war -Whoever conceals the existence of a design to wage war against the [Government of India] by any act or illegal omission, intending or knowing it to be likely that such concealment will facilitate the waging of such war, shall be punished with imprisonment of either description for a term that may extend to ten years, as well as a fine.

Section 124

Assaulting President. Governor, etc., with intent to compel or restrain the exercise of any lawful power – Whoever assaults or wrongfully restrains, or attempts wrongfully to restrain, or overawes, the [President] of India or the [Governor] of any [State] with the intent of inducing or compelling such [President or [Governor] to exercise or refrain from exercising in any manner any of the lawful powers of such [President or [Governor] shall be punished with imprisonment of either death or life.

Section 124A

Sedition – Whoever incites or attempts to incite hatred or contempt for the government established by law in [India] shall be punished with [life imprisonment], to which a fine may be added, or imprisonment for three years, to which a fine may be added, or with fine.

Section 125[1]

Waging war against any Asiatic power in alliance with the Government of India – Whoever wages war against the Government of any Asiatic Power in alliance or at peace with the [Government of India], attempts to wage such war, or aids and abets the waging of such war, shall be punished with [life imprisonment], to which a fine may be added, or imprisonment of either description for a term up to seven years, to which a fine may be added, or fine.

Section 126[2]

Committing depredation on territories of power at peace with the Government of India – Anyone who commits or plans to commit depredation on the territories of any Power in alliance or at peace with the [Government of India] shall be punished by imprisonment of any kind for a term of up to seven years, as well as a fine and forfeiture of any property used or intended to be used in committing such depredation, or acquired as a result of such depredation.

Section 127[3]

Receiving property taken by war or depredation mentioned in sections 125 and 126 – Anyone who receives property knowing that it was taken in the commission of any of the offences specified in sections 125 and 126 is punishable by imprisonment of any kind for a term of up to seven years, as well as a fine and forfeiture of the property so received.

Section 128

Public servant voluntarily allowing prisoner of State or war to escape – Whoever, while serving as a public servant and having 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 [life imprisonment] or imprisonment of either description for a term of up to ten years, as well as a fine.

Section 129

Public servant negligently suffering such prisoner to escape – Whoever, while serving as a public servant and having custody of any State prisoner or prisoner of war, negligently allows such prisoner to escape from any place of confinement in which such prisoner is confined, shall be punished with simple imprisonment for a term of up to three years, as well as a fine.

Section 130[4]

Knowingly aiding or assisting any State prisoner or prisoner of war in escaping from lawful custody, or rescuing or attempting to rescue any such prisoner, or harbouring or concealing any such prisoner who has escaped from lawful custody, or offering or attempting to offer any resistance to recapture of such prisoner, shall be punished with [life imprisonment], or imprisonment of either description for a term up to ten years, and shall also be liable.

ESSENTIAL ELEMENTS OF SEDITION

1) Intention – The accused’s desire must be to impart in the public a sense of hatred, contempt, or disaffection with the government. This desire must be preceded by a desire to incite violence or public disorder. It is also crucial that the person knows that such conduct or attempt will give rise to the above-said reaction. Sedition penalizes the intent of the language used, irrespective of its success. Consequently, the person should have behaved willingly with the above said willingness and knowledge.

2) Act – The Sedition describes the act as “speaking or writing words, making signs or visual representations, or any other such act.” Sedition can be accomplished using any material such as letter, published article, poster, speech, etc. It is worth noting that some form of publication is needed to bring the case of sedition.

3) Act towards the Government established by law in India – The consistency of the government is crucial. Any danger to its stability and continuity is considered as a crime against the state. Hence, if the act is done towards[5] –

• Private person
• Association
• Government company
• Political party
• A foreign government, or
• Officer of the state (including a soldier, sailor, or airman in the Army, Navy or Air Force).

The above-mentioned conduct would not come under the offence of sedition.

4) Violence or Public disorder – The provocation of conflict or public disorder is a prerequisite for sedition. The act of sedition should cause or be likely to induce violent behaviour or public disorder. A fair link must exist between both the alleged seditious material and the violent behaviour or disorder. It is the prosecutor’s obligation to reveal the intimate ties between both the alleged seditious material and the incitement of violence or public disorder.

Constitutional validity of sedition

Maintaining the legitimacy of the legally established government is a necessary condition for a state’s cohesion. If contempt of court results in criminal prosecution, then contempt of government should result in criminal prosecution as well. Post independence, Section 124A was frequently criticized, with the argument that it limits our “freedom of expression.” Many in India, which is secular and independent, and where democratic principles are upheld, have questioned the “tyrannical” remnants of colonial rule. As a consequence, critics claim that this Indian Penal Code legislation violates the country’s Constitution.

Section 124A was found to be constitutionally valid in the landmark case of Kedar Nath v. State of Bihar (1962). The Supreme Court ruled in this case that the offence discussed in Section 124A was not unconstitutional. The court also ruled that citizens have the right to criticize or comment on the government or its policies as long as it does not incite people to commit violence against the government or cause public disorder. This section was enacted to strike a balance between fundamental rights and public order.

WAGING WAR AGAINST THE STATE

Under the Indian Penal Code (IPC), waging war against the state is a serious offense. Section 121 of the IPC deals with the offense of “Waging, or attempting to wage war, or abetting waging of war, against the Government of India. ” It states-“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 life and shall also be liable to fine.” This offense encompasses various activities that involve organized attempts to overthrow or challenge the authority of the Indian government through violent means. The penalty for this offense is severe, with the possibility of the death penalty or life imprisonment.

Essentials

• Act of Waging War: The accused must engage in an act that constitutes waging war against the Government of India. This act could involve various activities such as taking up arms, forming a rebellion, planning or instigating an armed uprising, or any organized attempt to challenge the authority of the Indian government through violent means.
• Intent: The accused must have the intention to wage war or overthrow the government. Mere preparation or discussion about such acts may not be sufficient unless there is clear intent and a substantial step taken towards committing the offense.
• Abetment: In addition to directly waging war against the state, the law also covers individuals who aid, support, or encourage the waging of such war. Anyone who assists, facilitates, or promotes activities aimed at overthrowing the government can also be charged under this section.
• Severity of Punishment: The punishment for this offense is severe, involving either the death penalty or life imprisonment, along with the possibility of a fine.

CRPC (SECTION – 196)

It is the legal code that governs the procedural aspects of Indian criminal law. It addresses a variety of issues, including investigation, arrest, bail, trials, sentencing, and appeals, and serves as a framework for the administration of criminal justice in the country. The CRPC is a critical tool for maintaining law and order and ensuring fair and just criminal proceedings. The code applies to Supreme and High Court Magistrates and Judges, as well as Police, Public Prosecutors, Defense Counsel, and Correctional Services Workers. It establishes the machinery for detecting crime, apprehending suspected criminals, gathering evidence, determining the guilt or innocence of the accused, and punishing the guilty.

Section 196 – Prosecution for crimes against the state, as well as criminal conspiracy to commit such crimes.

(1) No Court shall take cognizance of – (a) any offence punishable under Chapter VI or section 153A

(b) a criminal conspiracy to commit such an offence, or

(c) any such abetment, as defined in Section 108A of the Indian Penal Code (45 of 1860),

 except with the prior approval of the Central Government or the State Government.

(1A) No Court shall take cognizance of

(a) any offence punishable under Section 153B or Subsections (2) or (3) of Section 505 of the Indian Penal Code (45 of 1860), or

(b) a criminal conspiracy to commit such an offence,

except with the prior approval of the Central Government, the State Government, or the District Magistrate.

(2) No Court shall take cognizance of any offence punishable under section 120B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit [an offence] punishable with death, imprisonment for life, or rigorous imprisonment for a term of two years or more, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings.

(3) Before giving sanction [under sub-section (1) or sub-section (1A)] and the District Magistrate may, before giving sanction under sub-section (1A) and the State Government or the District Magistrate may, before giving consent under sub-section (2), order a preliminary investigation by a police officer not below the rank of Inspector, in which case such police officer shall have the powers referred to in sub-section (1).

CASE LAWS

1. Alok Aggarwal vs. Union of India 1993 – In this case, the question was whether the court had jurisdiction to try an offender who committed the crime in another country. It was held that even if a person steps outside the banner but continues to perform acts in support of it, he is not said to be outside the banner. An offence cannot be said to have occurred outside the country simply because he was an NRI and was not present at the time. If the forging, cheating, or other acts in the conspiracy were committed in Chandigarh, the offence is also committed within Indian territory. As a result, the courts have jurisdiction and are authorised to try the case[6].
2. Mir Hasan Khan v. state of Bihar 1950 – In this case, it was determined that under Section 121, it must be demonstrated that the individual desired to possess any type of Armoury and used the rifles and ammunitions against State troops, while also demonstrating that the seizure of the ordnance was a critical part of an organized activity.

CONCLUSION

To summarize, offences against the state are critical to the regulation and maintenance of public order. Sections 121 to 130 of the IPC cover crimes against the state. These sections’ goal is to keep the state safe. In a democratic government structure, people are free and have the right to criticize the government, but they cannot use these rights to sow discord among the people around them or to harm the government. Sedition, war, assault on government officials, and other offences against the state are examples. As a result, it is necessary to safeguard the state and punish those who violate its laws.

REFERENCES

1. North-eastLawJournal,IPC: Offences against the State- Explained! (northeastlawjournal.com), (last visited dec.3, 2022)
2. India code, India
3. India code, ?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=139
4. Prolawctor, https://prolawctor.com/offences-against-the-state-free-ipc-notes/, (last visited nov.30 2020)
5. North-east,https://www.northeastlawjournal.com/post/indian-penal-code-an-explainer-on-offences-against-the-state, (last visited dec.3, 2022)
6. E-Justice India,https://www.ejusticeindia.com/offence-against-the-state-under-ipc-important-provision-case-law/#:~:text=Any%20kind%20of%20crime%20is%20to%20be%20treated,121-130%20that%20is%20the%20offenses%20against%20the%20State., (July 31, 2021)
7. India Code,https://www.indiacode.nic.in/handle/123456789/16225?sam_handle=123456789/1362

---

[1] India Code: Section Details. https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=134

[2] India Code: Section Details. https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=134

[3] India Code: Section Details. https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=134

[4] India Code: Section Details. https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=134

[5] iPleaders. Sedition law.  https://blog.ipleaders.in/sedition-law/#:~:text=Elements%20of%20sedition%201%20Intention%20The%20intention%20of,disorder%20is%20a%20conditional%20element%20of%20sedition.%20

[6] India code, https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=139

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.