Section 123 of Indian Penal Code, 1860 – Explained!

This section makes concealing with intent to facilitate design to wage war an offence. It says that whenever someone conceals the existence of a design to wage war against the Government of India by any act or illegal omission, with the intention by such concealment to facilitate the waging of such war, or with the knowledge that it is likely that such concealment is likely to facilitate waging of such war, he shall be punished with simple or rigorous imprisonment for a term extending up to ten years, and shall also be liable to fine.

The most important part of this provision is that a ‘mens rea‘ in the form of either intention to facilitate waging of war or knowledge that it is likely to facilitate waging of war, has been made an essential requirement of a conviction under this section. This section is similar in nature to section 118 of the Code but there are two differentiating aspects between the two.

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While this provision is with respect to waging war against the Government of India, section 118 is with respect to abetment of a crime, and under this provision the penalty provided is severer than under that section. Section 39, Code of Criminal Procedure, 1973 casts similar duties on the public to give information of certain offences. Clause (1) (i) of this section says that every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under sections 121 to 126, both inclusive, and section 130 shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest magistrate or police officer of such commission or intention. Clause (2) of this section states that for the purposes of this section, the term ‘offence’ includes any act committed at any place out of India which would constitute an offence if committed in India.

The offence under this section is cognizable, non-bailable and non-compoundable, and is triable by court of session.

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