Offences against State

Shruti Lamba

It is the duty of the State to ensure peace in the peace within the society it is governing. This very concept makes every offence that is committed by the people within the society an offence against the State or government because these actions disturb the public peace and order and violates the national integrity. But there are some offences in specific that are directed as offence towards the State itself such as waging war or attempting or abetting war, sedition, escape of state prisoner and many more.

These are offences against the sovereignty and integrity of the State. Like all men, even the State has right of self – preservation to ensure its safeguard and protection. Chapter- VI of Indian Penal Code, 1860 deals with offences against the State from Section 121 to Section 130. State imposes severe punishment against the offenders on the presumption that every citizen should abide by its sovereignty and owes allegiance to the State.

Offences against the State

On basis of the nature and gravity of the offences, offences against the State can be classified into:

Waging War (against the Government of India and any power)
Assault on high officials
Escape of a state prisoner
Sedition

Section 121- Waging War

Preservation of the State is the primary duty of every State and is its highest priority. In the monarchial form of Government, the violence against the State was considered “a lese majestic- les majestic human” which means an offence against the power and it was considered that the right of the State to preserve itself to be a sacred right and such offences were mostly punished with severe capital sentence.

The Indian Penal Code, 1860 has incorporated the concept of preservation of the State from the common law system and has provided for strict punishments such death, life imprisonment and heavy fine penalty.

WHAT DOES WAGING WAR MEAN?

When several people in the State assemble and raise voice against the State by use of violence and force with an aim to attain object of public nature, such an action is called wagering war.

Section 121 provides as follows:

“Waging, or attempting to wage war, or abetting waging of war, against the Government of India—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.”

Illustration: Mr. A join a revolt against the Government of India. A has committed the offence defined in this section.

As per provision of Section 121 following can be constituted as ingredients:

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

All the stages of waging war viz planning, conspiracy, abetment and attempt are all complete offence in itself. The distinction is made only for the sake of punishment else all three are complete offence in the eyes of legislature. The same was held in the case of Mir Hasan Khan and Ors. v. State of Bihar^[1]:

“That for convicting a person under this section it is to be proved that the person planned to obtain possession of armory and has used rifles against the state troops and also the seizure of the armory was part of a planned action.”

It is to be kept in mind that a citizen as well as a foreigner can be convicted under this section.

PUNISHMENT AGAINST OFFENCE UNDER SECTION 121

The offence under Section 121 is: (as per schedule 1 Criminal procedure Code)

Triable by Session Court
Cognizable
Non bailable
Non compoundable (i.e., not listed under Section 320 Criminal procedure Code)

PUNISHMENT: death or imprisonment for life and fine.

Even conspiracy for wagering war (as under Section 121) is punishable Section 121A. this section was inserted in 1870 and it broadened the scope to punish even conspiracy to wage war against the State. As per Section 121A, IPC:

“Conspiracy to commit offences punishable by section 121.—Whoever within or without 83 India conspires to commit any of the offences punishable by section 121, or conspires to overawe, by means of criminal force or the show of criminal force, the Central Government or any State Government, shall be punished with imprisonment for life, or with imprisonment of either description which may extend to ten years, and shall also be liable to fine.

Explanation — To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall make place in pursuance thereof.”

INTENTION: Unlike most of the offences under Indian Penal Code where actus rea is of far more importance than mens rea. For an offence of waging war intention and purpose are of vital importance and murder and force are irrelevant.

WAGING WAR Vs RIOTING?

The two terms waging war and rioting may mean the same to a layman and even it may be difficult to distinguish between the two, but it is important to note that the two terms are different.

Rioting is defined under Chapter VII of The Indian Penal Code, 1860 under Section 146 and it is an offence against public tranquility whereby people engaged in it try to accomplish some private objective, unlike waging whereby the objective is of public nature and to resist or to question the Government’s authorities.

Section 122- Preparation to Wage War

Preparation to wage a war is also an offence against the state and is punishable under Section 122 with punishment of either life imprisonment or imprisonment of ten years along with fine.

Section 123 – Concealment of Design War

Illegal omission of information of conspiracy as well as the design plan to wage of war is punishable under Section 123 of IPC with the punishment of imprisonment 10 years along with fine.

Section 124 – Assault on a High Official

State does not commands own its own, there are officials who are vested with power of execution by the constitution to undertake and execute functions of the state i.e., these officials are State’s eyes, ears, and hands for functioning. So, these officials must be free from any fear of personal harm while undertaking the functions of the State and discharging their legal duties.

Thus, such officials are protected from any assault done with intention of compelling or inducing the official. Refraining higher official from exercising their lawful powers is considered as offence against the State. Section 124 IPC provides for punishment for assaulting the official with the intention of inducing him to refrain from discharging his legal duties.

As per Section 124 high official includes President and Governor of any State. And the protection granted by Section 124 is absolute as long as the official discharge their official functions.

Section 124 provides as follows:

“Assaulting President, Governor, etc., with intent to compel or restrain the exercise of any lawful power.—Whoever, with the intention of including or compelling the President of India, or the Governor of 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 of either description for a term which may extend to seven years, and shall also be liable to fine.”

As per above provision following can be classified as ingredients of this section, in order to convict someone under this section following needs to be fulfilled:

The accused should have assaulted the President or the Governor of any state, or
The accused should have wrongfully restrained the President or the Governor of any state,
The accused attempted to assault or wrongfully restraint the President or the Governor of any state, or
The accused attempts to instigate or influence the President or the Governor with force or shoes force with intention to compel them from refraining from exercising their powers.

PUNISHMENT AGAINST OFFENCE UNDER SECTION 124

The offence under Section 124 is: (under schedule 1 Criminal Procedure Code)

Triable by Session Court
Cognizable
Non bailable
Non compoundable (i.e., not listed under Section 320 Criminal Procedure Code)

PUNISHMENT: imprisonment for 7 years and fine.

Section 124A – Sedition

The law of sedition was introduced in India by insertion of Section 124A in the Indian Penal Code in 1870. The section finds its inception from Section 113 of Lord Macaulay’s draft of the Indian Penal Code, 1837. According to Sinha CJ, the rationale behind the law of sedition is:

“Every State, whether its form of Government, has to be armed with the power to publish those who by their conduct, jeopardize the safety and stability of the State, or disseminate such feelings of disloyalty as tend to lead to the disruption of the state or public disorder.”

The gist of the offence of sedition was held in the leading case of Niharendu v. Emperor^[2], wherein it was held that:

“The essence of the offence of sedition is incitement to violence; mere abusive words are not enough and that public disorder or the reasonable anticipation or likelihood of public disorder is the gist of the offence”

What is Sedition?

Sedition in simple words means defaming the Government established by the law. It refers to an act whereby it is intended to stir up hatred, rebellion, feelings of enmity and disloyalty towards the Government. It can be denoted as libel as per English law.

Section 124A provides as follows:

“124A. Sedition—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 103 [India], 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.

Explanation 1—The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2—Comments expressing disapprobation of 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.

Explanation 3—Comments expressing disapprobation of 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.”

Thus, the following can be states as two essential ingredients of sedition under Section 124A:

Bringing or attempting to bring into hatred or contempt, or exciting or attempting to excite disaffection towards the government established by law in India.
Such an act must be intentional.
Such act or attempt may be done by words (either spoken or written), or signs, or visible representation, or otherwise.

IS SECTION 124A CONSTITUTIONALLY VALID?

Article 19(1)(a) of Indian Constitution guarantees freedom of speech and expression as fundamental right. Sedition being an offence born from speech and expressions such as spoken words, written words or representations was challenged to be in conflict with the fundamental right guaranteed under Article 19(1)(a).

The constitutional validity of Section 124A was challenged for the first time in the case of Ram Nandan vs State^[3], and it was held by the Allahabad High Court that the section is ultra vires to the constitution, and it imposed restriction on the fundamental right of speech and expression.

But this decision was overruled in the case of Kedar Nath Singh vs State of Bihar^[4], and rest was put to all the conflicting and mixed opinions and decisions, it was held that:

“The Section would only limit the acts involving an intention to create a disturbance of law and order or enticement of violence. Thus, this Section is intra vires to the Constitution.”

Thus, now this section does not violate Art 19(1)(a) of the constitution.

PUNISHMENT AGAINST OFFENCE UNDER SECTION 124A

The offence under Section 124A is: (under schedule 1 Criminal Procedure Code)

Triable by Session Court
Cognizable
Non bailable
Non compoundable (i.e., not listed under Section 320 Criminal Procedure Code)

PUNISHMENT: the amount and intensity of disaffection is material in dealing with question of punishment and the offence is punishable with imprisonment for life and fine or imprisonment for 3 years and fine or fine.

Conclusion

Offences against the State target and disturbs public law and order and thus, curbing commission of such offences is crucial to regulate and maintain public order. In the democracy structure of Government, the people are free and have right to criticize Government but they cannot use this right to create disharmony amongst people around them or cause harm to the Government.

To ensure harmony in the State such offences are made punishable with severe punishments and such punishments are in no way a violation the fundamental rights of the people. Along with the rights it is also fundamental duty of the people to abide by the sovereignty of the state and above provisions keeps a check that the duty is followed. And for the sake of betterment of people as well as the State it is needed that the freedom of the people is restricted.

References

https://indiankanoon.org/doc/786750/

https://indiankanoon.org/doc/1949191/

https://indiankanoon.org/doc/1641007/

https://www.srdlawnotes.com/2017/06/offences-against-state-section-121-to.html

http://lawtimesjournal.in/offences-against-the-state/

The Indian Penal Code, Ratanlal & Dhirajlal, 33rd edition

https://indiankanoon.org/doc/537326/

https://indiankanoon.org/doc/111867/

http://www.legalserviceindia.com/legal/article-2653-offence-against-state-under-law-of-crimes.html