Offences Against The State

Introduction

This Chapter comprises of thirteen sections. Section 121,121A & 122 deal with preparation, conspiracy & waging of war against the Government of Bangladesh. Section 123 deals with abetment by criminal concealment of arms with intent to facilitate design to wage war. Section 124 deals with assault on President, Government etc with intent to compel or restrain the exercise of any lawful power. Section 124A deals with Sedition. Section 125 to 127 refer to hostile acts against any Asiatic Power in alliance with the Government of Bangladesh. And section 128 to 130 deal with public servant aiding escape of, rescuing or harbouring prisoner.

Waging War:

The words “wages war” occurring in section 121 of the Penal Code & the words “waged war” occurring in sub-clause(III) of Clause(b) of Article2 of President Order No 8 of 1972 mean waging war in the manner usual in a war.

The waging of war is the attempt to accomplish by violence, any purpose of a public nature when multitude rises and assembles to attain, by force and violence, any object of a general public nature. It amounts to waging war against the state. It is not the murder or the force, but the purpose & intention that constitute the offence and distinguish it from riot.

Waging War Against State:

This section(121) embraces every description of war, whether by insurrection or invasion. It punishes equally the waging of war against the Government of Bangladesh, or attempting to wage such war, or abetting the waging of such war. The offence of engagement in a conspiracy to wage war & that of abetting the waging of war against the Government under this section are offences under penal code only. And are not treason or misprison of treason.

There  must be some evidence to show that the accused took some steps to restrain by force of arms the lawful Government from reigning according to law.

(Majibur Rahman Rahman vs State 1983)

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Abetting the Waging of War:

Such abetment is made a special offence. It is not essential that as a result of the abetment the war should infact be result of the abetment the war should infact be waged. The main purpose of the instigation should be “the waging of war”. It should not be merely a remote & incidental purpose but the thing principally aimed at by instigation. There must be active suggestion or stimulation to the use of violence.

Conspiracy of Waging War:

Ingredients: The ingredients of the offences under section 121A are:-

(i)     Conspiring within or without Bangladesh to commit any of the offences punishable by section 121, viz the waging of war against the government of Bangladesh or attempt to wage such war or abetting the waging of such war.

(ii)  Conspiring to overawe the government.

Intention of Waging War:

This section(122) is intended to put down with a heavy hand any preparation to wage war against the Government of Bangladesh. The act made punishable by this section cannot be considered attempt they are in truth preparation made for committing the offence of waging war.

The section 123 reinteracts the principal enunciated in section 118, the only difference being that the penalty under it is more severe.

The ingredients of this section(123) are:-

(i)     There must be a conspiracy of war against the state of Bangladesh.

(ii)  The accused must have knowledge about the conspiracy.

(iii)                        The accused concealed the existence of a design to wage war against Bangladesh.

(iv) The concealment will facilitate the wage of war.

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The ingredients of section 124 are:-

a)      The accused must have intention of inducing or compelling to exercise or refrain from exercising any lawful power of the president or the Government.

b)      The accused by means of criminal force or the show of criminal force –

(i)     Assault

(ii)  Or wrongfully restrains

(iii)            Or attempts

(iv) Or overawes

(v)   Or attempts to overawes the President.

Sedition:

Sedition is nothing but defamation of the established government. To prove sedition there may be following essential ingredients:-

a)      Bringing or attempting to bring into hatred or contempt exciting or attempting to excite disaffection towards the Government of Bangladesh &

b)      Such act or attempt may be done by –

(i)     Words, either spoken or written

(ii)  Or sign

(iii)            Or visible representation

Cases Relating to Sedition:

Mumbai Terror Attack Case 2008

Facts: 10 pakistani men associated with the terror group “Lashkar-E-Tayyiba” stormed building in Mumbai, killing 164 people, 9 of the gunmen were killed during the attacks. 1 survived named Md.Ajmal Kasab. The lone surviving gunman was executed in India in November 2012.

The location targeted were:-

(i)     Chhatrapati Shivaji Terminals Railway Station

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(ii)  Leopold café

(iii)                        Tajmohal Palace & Tower Hotel

(iv) Oberoi Trident Hotel

(v)   Metro Cinema

(vi) Cama & Albless Hospital and Nariman House

The government used automatic weapon & grenades in the attacks which took place on 26^th-29^th November 2008.

Finally the last surviving man Kasab was convicted of murder, conspiracy & waging of war against India. Kasab was sentenced to death by hanging & Kasab’s death sentence is upheld by Mumbai High Court.

On july 29^th 2011, Indian Supreme Court received an appeal challenging Md.Ajmal Kasab’s death sentence. But Indian Supreme Court upheld the death sentence. And finally Md.Ajmal Kasab the last surviving gunman was hanged at 7.30am in an Indian prison.

Red Fort Attack Case 2000

Three people including two Army personnel were killed in the December 22^nd 2000 Red Fort attack.

Indian Supreme Court granted death sentence to the terrorist Md.Arif who was directly connected with this attack.

On August 10^th 2001, the Supreme Court upheld Arif’s death sentence & dismissed his appeal challenging the capital punishment awarded to him by session court.

Waging War Against Asiatic Power:

Ingredients of the section 125 are:-

(i)     The accused who wages war against any government of Asiatic Power in alliance with Bangladesh.

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(ii)  The accused who wages war against any government of Asiatic Power at peace with Bangladesh.

(iii)                        Or attempt to wage such war

(iv) Or abets the waging of such war

Depredation:

Depredation is plunder and to be punishable under the section 126, it must be a raid by a band of men in a foreign territory for plunder. The object of the raid is not to wage war but only to plunder.

This section(126) deals with depredation on territories of power a peace with Government of Bangladesh. Offence under this section is not cognizable and not bailable.

The section 127 deals with receiving property taken by war or depredation depredation mentioned in section 125 & 126.

This section(127) applies to those persons who knowingly receive any property obtained by waging war with a power at peace with Government of Bangladesh or by committing depredation on its territories. The offence under this section is not cognizable and not bailable.

The section 128 & section 225A provide for the same kind of offence. In both sections the public servant who has the custody of the prisoner is punished if voluntarily allows such prisoner to escape. In this section the prisoner must be a state prisoner or a prisoner of war; under section 225A the prisoner may be an ordinary criminal. The offence under this section(128) is thus an aggravated one than from the offence under section 225A. The offence under this section is not cognizable and also not bailable.

State Prisoner: “State prisoner” is one whose confinement is necessary in order to preserve the security of Bangladesh from foreign hostility or from internal commotion and who has been confined by order of the Government of Bangladesh.

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The expression “State Prisoner” would seem to indicate a foreigner kept in confinement on political grounds or for political reasons and not in due course of law on conviction and sentence by a court of law for an offence against the law of the land.

(6 Beng. LR 456, 1870)

Prisoner of War: “Prisoner of war” is one who in war is taken in arms or who being in arms submit and surrender themselves are not to be slain but to be made prisoners. But it seems those only are prisoners of war who are taken in arms.

Aiding Escape of State Prisoner:

If any state prisoner or prisoner of war escapes from any place of confinement due to the negligence of a public servant in which case such prisoner is confined under the custody of that public servant, the public servant will be hled liable for such escape of the prisoner and will be punished under section 129.

A state prisoner or prisoner of war is said to escape from lawful custody if he goes beyond the limits within which he is allowed to be at large. Under section 130 a state prisoner or prisoner of war is permitted to be at large on his parole within certain limits in Bangladesh.

Moreover, the section lays down punishment for persons whoever knowingly aids or assists any state prisoner or prisoner of war in escaping from lawful custody or rescues or attempts to rescue any such prisoner or harbours or conceals any such prisoner who has escaped from lawful custody or offers or attempts to offer any resistance to the recapture of such prisoner.

Punishment for Waging War Against State:

Whoever wages war against Bangladesh 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.

 Book Reference

Ø  Ratan Lal & Dhiraj Lal

Ø  Johrul Haque

Ø  Dr. Jeaul Hasan

Ø  A.K.M Moniruzzaman

Submitted by:

§  Mahabul Islam - 13039086

§  Tania Sultana - 13219023

§  Laboni Dhar - 13219048

§  Sakib Hossain – 13059094

§  MD. Motiur Rahman - 13049038

§  Md. Habibullah Nixon- 13029012