Of Offences against the State
Section 121 IPC
Waging, or attempting to wage war, or abetting waging of war, against the government of India.
Prof. Shakeel Ahmad
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 53[Government of India]. A has committed the offence defined in this section.
COMMENT
This being a safeguards enacted by the State for their own preservation and protection.
• To constitute this offence no specific number of person is necessary.
• The manner in which the persons are assembled or armed is also not material to constitute this offence.
The true test is the purpose or intention with which the men have assembled. The object of the gathering must be to attain, by force and violence, an object of general public nature thereby striking directly against the Government’s authority. ( Maganlal AIR 1946 Nag. 126)
Ingredients
1) The accused waged or attempted to wage war or abetted the waging of war; and
2) That such war was against the Government of India.
Waging war.- Any person (citizens or foreigners) 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 waging war.
In Maganlal Radhakrishnan v Emparor AIR 1946 Nag. 126 the characteristic of this offence were pointed out:-
1) No specific number of persons is necessary to constitute this offence;
2) The number of persons concerned and the manner in which they are equipped is immaterial;
3) The true criterion is “Quo Animo”, did the gathering assembled?
4) The object of gathering must be to attain by force and violence an object of general public nature thereby striking directly against the Govt’s authority.
5) There is no distinction between principal and accessories and everyone who takes part in the unlawful act incurs the same guilt.
Abets the waging of war- Abetment of waging war is made a special offence. 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 such distinction and also no distinction between the principal and accessory as such and all those who take part in the unlawful act incur the same liability. (Magan Lal, A.I.R. 1946 Nag.126).
If a person so long tries to inflame feeling, to excite a state of mind, is not guilty of anything more than sedition. But, is guilty of instigating and thereby abetting the waging of war if he definitely and thereby clearly incites to action.
Ganesh D. Savarkar, (1909) 12 Bom. L.R. 105. In this case the accused published a book of poems wherein a sprit of blood- thirstiness and murderous eagerness directed against the Government and “white”
rules ran through the poems; the urgency of taking up the sward was conveyed in unambiguous language, and an appeal of blood –thirsty incitement was made to the people to take up the sward, form secret societies, and adopt guerrilla warfare for the purpose of rooting out the demon of foreign rule. It was held that the poem conveyed to the readers an instigation to wage war and the accused was guilty of abetting the waging o war.
In State (N.C.T.of Delhi) v. Navjot Sandhu 2005 Cri. L.J.3950 (S.C.) , 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 terrorist was to impinge on sovereign authority of nation and its Government. It amounts to waging war or attempting to wage war against the Government of India.
In the instant case the target chosen was Parliament- a symbol of sovereignty of the Indian Republic comprised 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 SC 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. Thus imposition of punishment of death sentence on accused who abetted waging of war, was held to be proper.
