Law and You > Criminal Laws > Indian Penal Code > Waging War (Ss. 121 to 123 IPC)
All crimes are treated as offences against the State, or government, insofar as these acts/actions disturb the public tranquility, national integration and public order. But there are some criminal activities that are directed against the existence of the state itself viz. treason, sedition and rebellion. Thus, cases reported under sections 121, 121A, 122, 123, 124A, 153A and 153B of Indian Penal Code (IPC) have been categorized as ‘Offences against the State’. These offences are detrimental to State security and it disturb tranquility in the society and prejudicial to national integration. In this article, we shall discuss sections related to the offence of waging war against Government of India.
Chapter VI, Section 121 to Section 130 of the Indian Penal Code deals with offences against State. Section 121A and Section 124A were added to the code in 1870. The Indian Penal Code 1860 has made provisions to safeguard and preserve State’s existence and has provided the most Severe punishment of the death sentence or life imprisonment and fine in case of offence against the state.
We can Group these 12 Sections in 5 groups as follows:
| Group | Sections |
| I | Section 121: Waging, or attempting to wage war, or abetting waging of war, against the Government of India. Section 121A: Conspiracy to commit offences punishable by section Section 122: Collecting arms, etc., with intention of waging war against the Government of India Section 123: Concealing with intent to facilitate design to wage war |
| II | Section 124: Assaulting President, Governor, etc., with intent to compel or restrain the exercise of any lawful power |
| III | Section 124A: Sedition |
| IV | Section 125: Waging war against any Asiatic Power in alliance with the Government of India Section 126: Committing depredation on territories of Power at peace with the Government of India Section 127: Receiving property taken by war or depredation mentioned in sections 125 and 126 |
| v | Section 128: Public servant voluntarily allowing prisoner of state or war to escape Section 129: Public servant negligently suffering such prisoner to escape Section 130: Aiding escape of, rescuing or harbouring such prisoner |
Waging war:
War used under sections 121. 121A, 122, and 123 of this code, doesn’t mean conventional warfare between countries, however, mere joining or organizing an insurrection against the government of India is a form of war. Waging war is a means to accomplish any purpose of public nature by violence. Waging War means an attempt to fulfil any purpose or objective of public nature by using the means of violence. Such a circumstance or war occurs in a situation when several people rise and assemble against the state, in order to attain any object of the public nature by using force and the violence.
In the case of waging war intention and purpose are considered to be the most important factors to be examined behind such aggression against the Government. In such a war, murder and force are irrelevant.
Distinguishing Between Waging War and Rioting:
| Waging War | Rioting |
| Waging War is explained in Sections 121. 121A, 122, and 123 in Chapter-VI Offences Against the State. | Rioting is explained in Sections 146-148 under Chapter-VIII Offences Against the Public Tranquillity. |
| It is against the Government of India. | It is against the Public Tranquillity. |
| Punishment is serious. The wrong-doer shall be punished with death or imprisonment for life and also fine. | Punishment is lesser than Waging War, i.e., imprisonment for 2 years or with fine or with both. |
| The purpose of waging war extends to the whole community especially to the State. It is public nature. | The purpose is generally private. It is less serious than waging war. |
| The number of persons in Waging War is not mentioned anywhere. But it is assumed the number of persons may be from one person to one thousand, or one lakh or so. | The number of persons must be five or more persons. |
| Example: Militancy in Kashmir | Example: Clashes between two or more different groups. |
In Md. Jamiluddin Nasir v. State of West Bengal, Criminal Appeal Nos.1240 – 1241 of 2010 and Aftab Ahmed Ansari @ Aftab Ansari Vs. The State of West Bengal Criminal Appeal Nos.1242 – 1243 of 2010 case, the Supreme Court observed inter-alia that not all violent behaviour would fall under the charge of ‘waging war’ i.e., this very concept shall not be stretched too far. A balanced and realistic approach should be taken while determining if an act constitutes the serious charge contemplated under this Section.
In Nazir Khan v. State of Delhi, Appeal (crl.) 734 of 2003 Case, the Court observed that in these cases (waging war), it is not enough to prove that the persons charged have colluded to obtain possession of the armoury and, when required to surrender, they retaliated by using such armoury against the state officials. It must also be proved that the seizure of armoury was a part and parcel of what was a planned move against the Government and that, they intended to overwhelm the said troops.
In Md. Ajmal Md. Amir Kasab v. the State of Maharashtra, 29 August, 2012 case, the court observed that in “waging war”, the intent of the enemy is not only to disturb the peace or kill people. A foreign enemy strikes at the sovereignty of the state and his conspiracy and subsequent actions are motivated by that animus itself.
Section 121 IPC:
Waging, or attempting to wage war, or abetting waging of war, against the Government of India.
Section 121 of the Indian Penal Code, 1860 lays down that 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
Ingredients of Section 121:
To constitute the offence under Section 121 of the Indian Penal Code the following ingredients must exist:
- Accused must wage war, or
- Attempt to wage war
- Abet the waging of such war
- Against the Government of India
The offence under Section 121 is cognizable, non-bailable, non-compoundable and triable by Court of Session.
The word ‘whoever’ is used in a broader sense and is not only limited to the people who owe loyalty to the established Government. For instance, in the case of Mumbai Terror Attack, the first and the primary offence committed by the appellant and other conspirators was the offence of waging war against the Government of India. The attack was by foreign nationals and aimed at Indians and India. The purpose of this attack was to accelerate communal tensions, affect the financial situation of the country and most importantly to demand India to surrender Kashmir. Therefore, under Section 121, 121A and 122 of the Code, the appellant was rightly held guilty for waging war against the Government of India.
In N.C.T. Delhi v. Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 case, the Court observed “While these are the acceptable criteria of waging war, we must dissociate ourselves 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. We have already expressed reservations in adopting this test in its literal sense and construing it in a manner out of tune with the present day. 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. An organized movement attended with violence and attacks against the public officials and armed forces while agitating for the repeal of an unpopular law or for preventing burdensome taxes were viewed as acts of treason in the form of levying war. We doubt whether such construction is in tune with the modern-day perspectives and standards.”
Section 121A IPC:
Conspiracy to commit offences punishable by section:
Section 121A was added to the Indian Penal Code in 1870. It says that whoever within or without India conspires to commit any of the offences punishable under 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 take place in pursuance thereof.
In N.C.T. Delhi v. Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 case, the Court observed that the conspiracy to commit offences punishable under Section 121 attracts punishment under Section 121A and the maximum sentence could be imprisonment for life. The other limb of Section 121A is the conspiracy to overawe by means of criminal force or the show of criminal force, the Central Government or any State Government. The explanation to Section 121-A clarifies that it is not necessary that any act or illegal omission should take place pursuant to the conspiracy, in order to constitute the said offence. War, terrorism and violent acts to overawe the established Government have many things in common.
Section 122 IPC:
Collecting arms, etc., with intention of waging war against the Government of India:
Section 122 of the Indian Penal Code 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, shall be punished with imprisonment for life or imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine.
Ingredients of Section 122:
To invoke Section 122 of the Code following ingredient must be satisfied
- A person collects a men, arms or ammunition, or otherwise prepares to wage war; and
- He does so with the intention of either waging war against the Government of India or being prepared to wage war against Government of India.
The offence under Section 122 of The Indian Penal Code is Cognizable, non-compoundable, non-bailable and triable by Court of Session.
Section 123 IPC:
Concealing with intent to facilitate design to wage war:
Section 123 of the Code says 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, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Ingredients:
Essentials Ingredients of Section 123 of the Indian Penal Code are as follows:
- A person commits an act or illegal or mission;
- He thereby conceals the existence of a design to wage war against the Government of India.
- He intends by such concealment to facilitate the waging war or knows it to be likely that, such concealment will facilitate the waging of War.
The offence under section 123 is cognizable, non-bailable non-compoundable, and tribal by Court of Session.
In N.C.T. Delhi v. Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 case, the Court convicted Shaukat under Section 123 IPC and observed that by his illegal omission to apprise the police or Magistrate of the design of Afzal and other conspirators to attack the Parliament which is an act of waging war, the appellant Shaukat has made himself liable for punishment for the lesser offence under Section 123 IPC. If he had given the timely information, the entire conspiracy would have been nipped in the bud. ….. the face of the stand he had taken and his conduct even after the attack, he could not have pleaded reasonable excuse for not passing on the information.
Section 124 IPC:
Assaulting President, Governor, etc., with intent to compel or restrain the exercise of any lawful power:
According to Section 124 of the Code Whoever, with the intention of inducing or compelling the President of India, or Governor of any State, to exercise or refrain from exercising in any manner any of the lawful powers of such President or Governor, assaults 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.
This section is an extension of the second clause of Section 124A, of the Indian penal code, which makes conspiracy to overawe by means of criminal force or show of criminal force Government of India or any state Government punishable.
The offence under section 123 is cognizable, non-bailable non-compoundable, and tribal by Court of Session.
Conclusion:
The Indian Penal Code, 1860 deals with offences against the State under Chapter VI (Section 121 to Section 130). Sections 121, 121A, 122, and 123 deals with the offence of waging war against Government of India. These offences are detrimental to State security and it disturb tranquillity in the society and prejudicial to national integration.