This section does not distinguish between conspiracy within India and without, and punishment prescribed is same in both cases. The second part of the section says that whoever within or without India conspires to overawe, by means of criminal force or show of criminal force, the Central Government or any State Government, shall be punished with the prescribed punishment.
Under this part the conspiracy within or without India must be to overawe the central or any state government either by means of criminal force or by show of it. The Patna High Court has held that the word ‘overawe’ means much more than creation of apprehension or alarm or even perhaps fear; it seems to imply the creation of such a difficult situation for the members of the central or state government as would expose them to very serious danger not necessarily of bodily injury only but of public property and safety of members of the general public as well.
In case of overawing without the means of criminal force of show of criminal force, this section is not attracted. The expression ‘criminal force’ has the same meaning as given by section 350 of the Code. A single punishment provision applies for both kinds of conspiracy and it is imprisonment for life, or simple or rigorous imprisonment extending up to ten years, and fine also.
The explanation given with this provision explains that to constitute a conspiracy under this section there is no need of an act or illegal omission to take place in pursuance of the conspiracy. In other words, liability under this provision exists irrespective of the fact whether an act or illegal omission takes place in pursuance of the conspiracy or not.
According to section 13 of the Act XXVII of 1870, chapters IV, V and XXIII of the Indian Penal Code relating to general exceptions, abetment and attempts to commit offences respectively are applicable to section 121-A of the Code.
In the famous Meerut Conspiracy case unions were formed by the accused persons along the lines of Soviet Russia and these unions owed allegiance to Soviet Russia. The Sessions Court convicted them under section 121-A. Allowing their appeal the Allahabad High Court held that mere formation of unions along the lines of another country does not fulfil the requirements of this section.
Conspiracy to change the form of the central or state government may be an offence under any other section of the Code, but for conviction under this section the prosecution must prove that there was conspiracy to overawe such government by means of criminal force or show of criminal force.
Where an association was formed amongst young men for music lessons, gymnastic exercises and fencing by sticks for the students of the same school living in the same village, it was an ordinary school activity and not a conspiracy to wage war against the king, all the more so because there was complete absence of secrecy to such activities and even publicity was being given to it. It was further held that where several persons were charged with the same conspiracy, some of them could not be held liable for one kind of conspiracy and the others for another.
Where the accused persons were members of a secret society having headquarters at Calcutta and holding meetings at different places, and they had joined known and unknown persons, had conspired to wage war, collected arms and ammunition and had actually waged war, they could all be jointly tried for offences under sections 121, 121-A, 122 and 123 of the Code.
Where a slogan was given by the accused that government could be changed only by an armed revolution, the Kerala High Court held that he could not be held guilty under this section for conspiracy to commit offences punishable by section 121, as this could not be said to be a conspiracy to overawe the central or state government by means of criminal force or show of it, and the slogan at best could mean that the propagator wished to educate others with his way of thinking.
The offence under this section is cognizable, non-bailable and non-compoundable, and is triable by court of session.