The authors of the Code have deliberately used the expression ‘wages war’. The words seem naturally to import a levying of war by one who throwing off the duty of allegiance arrays himself in open defiance of his sovereign in like manner and by the like means as a foreign enemy would do, having gained footing within the realm. The words mean waging war in the manner usual in war. The expression ‘waging war’ is similar to the English law expression ‘levying war’. The famous words of Chief Justice Lord Mansfield in R. v. Gordon explain the concept thus:
‘There are two kinds of levying war : one against the person of the king, to imprison, to dethrone, or to kill him, or to make him change measures, or remove councillors; the other, which is said to be levied against the majesty of the king, or in other words, against him in his regal capacity, as when a multitude rise and assemble to attain by force and violence any object of a general public nature, that is levying war against the majesty of the king, and most reasonably so held, because it ends to dissolve all the bonds of society, to destroy property, and to overturn government, and by force of arms, to restrain the king from reigning according to law”.
There are two essential features to be noted with respect to waging war—the object to be accomplished must be of a public nature, and there must be a direct strike against the government’s authority. The number of persons participating and how are they equipped or armed are of no consequence. The important thing is with what mind or object did they assemble. There is no difference between a principal and an accessory in this offence.
Waging war and rioting
The offence of waging war is sometimes confused with rioting. In waging war the object is to challenge the authority of the government; there has to be an uprising or insurrection for some general purpose against the established authority of the government. In rioting, on the other hand, force or violence must be used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly. An unlawful assembly has a minimum of five members and their common object must fall under any of the five clauses of section 141 of the Code. There is no such requirement under section 121 of the Code.
As seen above, in addition to the waging war, attempt and abetment of waging war are also punishable within this section. Attempt to wage war is the stage when the person attempting has done all that he could do, or at least has taken all the more important steps that he could take towards waging war, but the main crime of waging war does not result. Abetment of waging war can be done by any of the three ways given under section 107 of the Code, that is to say, by instigation, by conspiracy, or by intentional aiding.
The Madras High Court has held that since the waging war is a continuous offence under section 121 of the Code, a charge that the accused had waged war more than three times during the course of a year is not violative of section 234 of the Code of Criminal Procedure, 1898 (corresponding to section 219, Code of Criminal Procedure, 1973) and is, therefore, legal.
Where the accused published a book of poems wherein the government and the white rulers were shown to be blood-thirsty and eager to commit murder, and in which suggestions were given to take up arms, form secret societies and adopt gorilla warfare against them, it was held that the book abetted waging war against the government and the accused was, therefore, punishable under this section.
Where the object of a mob was not mere resistance against a district magistrate, or to any isolated action, or a particular purpose, but subversion of the whole British government and establishment of a khilafat movement, all those who had taken part in it were held guilty under this section.
On the other hand, where there was only a pledge of a society undertaking to propagate the political faith that capitalism and private ownership was bad and, therefore, community’s interest in the form of socialism should be protected wherein the will of the working class would prevail, it was held that propounders of this belief could not be held to have committed an offence under this section even though they desired genuinely a change in the system of governance itself and had used expression like ‘fight’ and ‘war’ in their pledge.
A deliberate and organised attack on government forces by armed persons with a view to prevent the government from collecting capitation tax would make the attackers guilty under this section.
The accused, ever since his release from prison, had planned and plotted against the government, and had been executing his plans precisely and ruthlessly even at the cost of human life. The Calcutta High Court held him guilty under this section.
The Calcutta High Court has also held that the expression ‘wages war’ in section 121 must be interpreted in its ordinary sense, and so interpreted it does not include conspiracy to wage war, or the collection of people, arms and ammunition with the object of waging war. Conspiracy to wage war was subsequently made an offence under section 121-A of the Code.
Since it is explicitly mentioned in section 94 of the Code that the defence of compulsion has excepted murder and offences against the state punishable with death from its purview, it is clear that this defence is not available with respect to an offence under section 121 of the Code. However, courts are free to mitigate the punishment once it is proved that the accused had been compelled to commit this offence.
In State of Gujarat v. Jaman Haji Mamad Jat, some Pakistani nationals who allegedly intruded thirty kilometres into Indian territory were arrested by the Border Security Force. Explosives were recovered from them. Charged under sections 121, 122 and 123 of the Code. It was held by the Gujarat High Court that the case was not of rarest of rare category and so death sentence against them was converted into imprisonment for life.
The offence under this section is cognizable, non-bailable and non-compoundable, and is triable by court of session.