Section 121: 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
A joins an insurrection against the Government of India. A has committed the offence defined in this section.
Bhartiyay Nyay Sanhita - Sec 145: 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.
A joins an insurrection against the Government of India. A has committed the offence defined in this section.
States and individuals both share the right to protect themselves, and throughout history, states have established measures to ensure their preservation and safety. In the legal context, treason was introduced to safeguard the state. High treason, under common law, involved betraying the loyalty owed by a subject to their sovereign, who represents the highest authority in the state. The key element of high treason was the breach of faith and allegiance. The crime didn't require a specific number of participants or a particular manner of assembly or arming; instead, the crucial factor was the purpose or intention behind the gathering. For an action to be considered high treason, the assembled individuals must aim to achieve a public goal through force and violence, directly challenging the authority of the government.
Ingredients - The following are the ingredients of this section -
- The accused waged or attempted to wage war or abetted the waging of war, and
- That such war was against the Government of India.
Waging War - Any person taking part in organized armed attack on the constitutional authorities and the object of attack being subversion of Government and the establishment of another in its place would be guilty of the offence of waging war. This offence may be committed by citizens or foreigners. Every citizen is free to have his own political theory and also to propagate and work for its establishment so long as he does not seek to do so by force or violence. To try to work out a change by peaceful means in the political system or the kind of a Government does not amount to waging war.
In Maganlal Radhakrishan v. Emperor, the following characteristics of this offence were pointed out :-
- No specific number of persons is necessary to constitute this offence;
- The number of persons concerned and the manner in which they are equipped is immaterial;
- The true criterion is "Quo Animo", did the gathering assemble?
- 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.
- There is no distinction between principle and accessory and everyone who takes part in the unlawful act incurs the same guilt.
Quo Animo: is a latin phrase that means "with what intention or motive". It's sometimes used instead of the word "animus", which means "design or motive"
"Quo Animo" refers to the reason behind someone's actions or decisions.
Waging war means waging war in the manner usual in war. In order to support a conviction under this section it would not be enough to the persons charged have connived to obtain possession of an armory and have when called upon to surrender it, used the rifles and ammunition so obtained against the State troops. It must also be shown that the seizure of the armory was part and parcel of a planned operation and that their intention in resisting the troops of the State was to overwhelm and defeat the troops and then to go on and crush any further opposition with which they might meet until either the leaders of the movement succeed in obtaining possession of the machinery of Government or until those in possession of it yielded to the demands of their leaders. A deliberate and organized attack upon the Crown force could amount to waging of war if the object of the insurgents was by armed force and violence to overcome the servants of the Crown and prevent the general collection of capitation tax.
Abets the waging of war - Abetment of waging war is made a special offence. It is not essential that as a result of the abetment the war should in fact be waged. Although the general law relating to abetment has made a distinction for purposes of punishment between the abetment which has succeeded and the abetment which has failed, this section makes no distinction between the two. There is also no distinction between the principle an accessory, and all who take part in the unlawful act incur the same liability.
So long as a man only tries to inflame feeling, to excite a state of mind, he is not guilty of anything more than sedition. One is guilty of instigating and thereby abetting the waging of war only when he definitely and clearly incites to action (Ganesh D. Savarkar, 1909 ). For instance, in Ganesh D. Savarkar, the accused published a book of poems wherein a spirit of blood-thirstiness and murderous eagerness directed against the Government and "white" rulers ran through the poems; the urgency of taking up the sword, form secret societies, and adopt guerilla warfare for the purpose of rooting out the demon of foreign rule. It was held that the poems conveyed to the readers an instigation to wage war and the accused was guilty of abetting the waging of war.
In State (N.C.T. of Delhi) v. Navjot Sandhu, terrorists entered Parliament House with sophisticated arms and powerful explosives when Parliamentary business was being conducted therein. The Supreme Court held that the undoubted objective and determination of deceased terrorists was to impinge on sovereign authority of nation and its Government. It amounts to waging war or attempting to wage war against Government of India. It was also held that to constitute offence of waging war under Section 121 IPC., the intention and purpose of the warlike operations directed against the Governmental machinery is an important criterion. If the object and purpose is to strike at the sovereign authority of the Ruler or the government to achieve a public and general purpose in contradistinction to a private and a particular purpose, that is an important indicia of waging war. Of course the purpose must be intended to be achieved by the use of force and arms and by defiance of Government troops or armed personnel deployed to maintain public tranquility. It was also pointe out that 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.
In the instant case the target chosen was the Parliament - a symbol of sovereignty of the Indian Republic comprise of peoples representatives. The target, the obvious objective which has political and public dimensions and the modus operandi adopted by the hard core 'Fidayeens' are all demonstrative of intention of launching a war against the Government of India. In view of the above the Supreme Court held that the criminal acts done by the deceased terrorists in order to capture the Parliament House amount to waging or attempting to wage war. To constitute offence of waging war, military or other forces need not be the direct target of attack. Thus imposition of punishment of death sentence on accused who abetted waging of war, was held to be proper.
The apex Court further pointed out that 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. an all acts of violent resistance to the armed personnel to achieve certain political objective.
It was further held that foreign nationals entering Indian territory with a view to subverting functions of Government and de-stabilising society can be held guilty of waging war under Section 121 IPC.
In Mohd Arif v. State (NCT Delhi), the trial court had awarded death sentence to appellant Mohd. Arif alias Ashraf for the offence under Section 121 of IPC for waging war against the Government of India. Similarly, he was sentenced to death for the offence under Section 120-B read with Sec 302, IPC for committing murder of Army Naik Ashok Kumar, Uma Shankar and Abdullah Thakur inside the Red fort on Dec 22, 2000. The High Court concurred with finding of the trial Court and confirmed the death sentence as there were no mitigating circumstances justifying lesser punishment.
On appeal, the Supreme Court while holding that the charges were proved against the appellant were grave in nature, reduced the sentence to that of imprisonment for life with no remission.
It may be stated that waging of war against the Government is a continuous offence and therefore, a charge that the accused had waged war more than three times during a period of one year, shall not be violative of Section 219 of the Code of Criminal Procedure, 1973.
The end...
0 Comments