Ingredients of Waging War against the Government of India

Section 121 provides 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.

Ingredients of the section:

According to the section following ingredients are necessary: —

(1) The person must have (a) waged war, or (b) attempted, or (c) abetted the waging of war; and

(2) Such war must be against the Government of India.

For example, A joins an insurrection against the Government of India; A has committed the offence defined in the section. The section embraces every description of war, whether it be by the insurrection or invasion.

A compulsion is not a defence to a charge under Section 121. Neither the number of persons nor the manner in which they are assembled or armed is material to constitute an offence under this section.

The prime criterion is the purpose or intention with which the gathering assembled. 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 Government’s authority.

In the case of State v. Mohd. Afjal and others, known as “Attack on Parliament case” it was held that a full blood attack on the Parliament comes when it is in session, would indeed be an act of war against the Government of India when the President of India is to address it and the entire executive and the legislature is present. This solitary act by one man would be more devastating than a 1000 armed men attacking the Parliament and thus indeed, it would be an act of war.

The expression ‘waging war’ means ‘waging war in the manner usual in war’. In other words, in order to support a conviction on such a charge it is not sufficient to show that the persons charged have contrived to possession of an armoury and have, when called upon to surrender it, used the rifles against the servants of the Government.

It must also be shown that the seizure of the armoury was part and parcel of a planned operation and their intention in resisting the troops of the State was to overwhelm and defeat these troops and then to go and crush any opposition with which they might meet until the leaders of the movement succeeded in obtaining possession of the machinery of Government or until those in possession of it yielded to the demands of their leaders.

As regards the abetment of waging the war, it is not necessary that as a result of the abetment the war should be waged, in fact. The purpose of the instigation should be the waging of war. It may be noted that while under the general law as to abetment a distinction is made for the purpose of punishment between the abetment which has succeeded and abetment which has failed.

Section 121 does away with that distinction so far as the offence of waging war is concerned and deals equally with an abettor whose instigation has led to a war and one whose instigation has taken no effect whatever.

Regarding abetment of the waging of war, the authors of the Code say,

‘We have…… made the abetting of hostilities against the Government. In certain cases, a separate offence instead of leaving it to operation of the general law laid down in the chapter on abetment……

As the Penal Law is impotent against a successful rebel, it is consequently necessary that it should be made strong and sharp against the first beginning of rebellion, against treasonable designs which have been carried no further than plots and preparations to the ordinary law of abetment…….. under that general law, a conspiracy for the suppression of the Government would not be punished at all if the conspirators were detected before they had done more than discussed plans and ammunitions so obtained against the Government’s troops. It must also be shown that the seizure of the armoury was part and parcel of a planned operation and that their intention in resisting the troops of the Government was to overwhelm and defeat these troops and then to go on and crush any further opposition with which they might meet until either the leaders of the movement succeeded in obtaining possession of the machinery of Government or until those in possession of it yielded to the demand of their leaders.

When a multitude rises and assembles to attain by force and violence, any object of a general public nature, it amounts to levying war against the State. It is not the number of the force, but the purpose and intention that constitute the offence and distinguish it from riot or any other rising for a private purpose.

The law knows no distinction between principal and accessory, and all who take part in the reasonable act incur the same guilt. In rebellion cases it frequently happens that few are let into the real design, but yet all who join in it are guilty of the rebellion.

A deliberate and organised attack upon the Government’s forces would amount to a waging of war if the object of the insurgents was by armed force and violence to overcome resolutions and interchange promises of fidelity.

A conspiracy for the subversion of the Government, which should be carried as far as the gunpowder, treason or the assassination plot against William the Third, would be punished very much less severely, than the counterfeiting of a rupee, or the presenting of a forged cheque.

We have, therefore, thought it absolutely necessary to make separate provision for the persons abetting of great State offences. The subsequent abetting of such offences may, we think without inconvenience, be left to be dealt with according to the general law.

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