Section 122 of Indian Penal Code, 1860 – Explained!

This section is one of the few sections in the Indian Penal Code in which preparation to commit an offence has been made punishable. It says that whenever men, arms or ammunition are collected by someone, or preparation is done by him to wage war with the intention of waging war or with the intention of being prepared to wage war against the Government of India, he shall be punished with imprisonment for life, or simple or rigorous imprisonment which may extend up to ten years, and shall also be liable to fine. The words ‘also be liable to fine’ were added by Act XVI of 1921. The offence under this section is cognizable, non-bailable and non-compoundable, and is triable by court of session.

In Javed v. State of Maharashtra the accused persons had collected in a room. The Bombay High Court held that mere publication of printed matter and arms and photographs of some important dignitaries of India or the Al-Qaeda leader Osama Bin Laden or President of the United States of America would not establish that the readers thereof were instigated to wage war against India.

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There was no evidence-that the persons arrested were part of a movement aiming attack on and violence against public or public property or arms collected by them were to destroy public property. Hence the charge under section 122 of the Code was not established and their conviction under the Arms Act was held to be proper.

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