Assignment on
Offence against the State: Section 121-130
Submitted by:
Tasmia
Tagabun Roll:
1812116111
Shamsunnaher
Sumi Roll: 1812016206
Adity
Anindita Roll:
1812016194
Mst.
Naznin Sultana Anni Roll: 1812016180
Mst.
Sanjida Akter Suma Roll: 1812216126
Noorani
Rahman Roll:
1812016161
4th
year, Department of Law, University of Rajshahi
Date of Submission: 05-11-2022
CHAPTER VI
OF OFFENCES AGAINST THE STATE
Introduction
All crimes are
considered an offense against the state since they entail some conduct that
disrupts public peace and tranquility. However, in addition to general
offenses, there are some specific offenses that involve direct action against
the state, government, or are related to threatening national security by waging
wars, issuing statements detrimental to national unity, or acts prejudicial to
relations with foreign states, and so on. All of these offenses are referred to
as "Offenses against the State."
Although many
statutes and acts define distinct types of offenses against the state, all of
these offenses fall under Part VI and various other sections of the PC. It's
crucial to keep in mind that these offenses, as opposed to other offenses,
carry harsher and more severe penalties. Additionally, this seems acceptable
given that every nation has a stake in maintaining its honor and integrity.
Therefore, any of these offenses that are committed against the state, the
government, the population, or that are notably harmful to the maintenance of
national unity, integrity, and security are included in this category.
The present chapter
is therefore directed to the securing of external and internal peace. This
chapter comprises thirteen sections. Sections 121, 121(A) and 122 deal with
preparation, conspiracy and the actual waging of war against the Government of
Bangladesh. Section 123 deals with abetment by criminal concealment of arms
which facilitate design to wage war and, in this respect, it is an aggravated
form of the offence punishable under Section 118 and 120. Section 124 deals
with assault on the President, Governor, etc. with intent to compel or restrain
the exercise of any lawful power. Sec-124-A deals with sedition which may be
regarded as a precautionary section intended to avert internal commotion and civil
war. Sections like 121, 123 and 124A are thus directed to the preservation of
the remaining sections that have the same object in view, though they are not
directly conductive to its preservation. Sections 125 to 127 refer to hostile
acts against any Asiatic Power in alliance with the Government of Bangladesh.
Additionally, Sections 128 to 130 detail offenses involving the custody of
prisoners of war.
Offences
against the state (Section 121-130)
Law is the will of
the state, the first concern of the state is to protect itself from disruption
to provide for its own integrity. It views with grave concern acts designed to
undermine its authority.
The Offences against the state are defined under Chapter VI of The
Penal Code covering Section 121 to 130 which all will be briefly discussed
here.
There are thus four principal offences dealt with in this Chapter:
i.
Waging
war against the Government (Sections- 121, 121A, 122 & 123);
ii.
Waging
war against an Asiatic ally (Sections- 125, 126 & 127);
iii.
Overawing
the Government (Sections- 124 & 124A) and,
iv.
Permitting
or aiding the escape of a state prisoner or a prisoner of war (Sections 128,
129 & 130).
Offences
related to waging of war (Section 121-123)
First, we will
discuss Section 121-123 of PC. All these sections deal with the various
offences related to waging of war under PC.
Section
121
Waging or
attempting to wage war, or abetting waging of war, against Bangladesh
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.
Explanation
“A”
joins an insurrection against Bangladesh. A has committed the offence defined
in this section.
Scope
of the section
·
Section
121 of the Penal Code 1860, deals with offences relating waging, or attempting
to wage war, or abetting waging of war, against Bangladesh.
·
This
section provides that 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. Thus, A joins an
insurrection against such war, shall be punished with death, or Bangladesh. A
has committed the offence defined in this section.
·
The
expression “waging war” must be constructed in its ordinary sense. An act would
fall under this section if it comes to waging war in the manner usual in war.
·
No
specific number of persons is necessary to constitute an offence under the
section. The number concerned or the manner in which they are equipped or armed
is not material. The criterion is quo animo (meaning “with what mind”)
did the gathering assemble? The object of the gathering must be to attain by
force or violence an object of a general public nature, thereby striking
directly against the Government authority.
§
AIR
1931 Rang 235
·
The
expression “waging war” has neither been defined in the Code nor in the General
Clauses Act, 1897. It must be therefore understood in its ordinary dictionary
meaning of “carrying on war”.
§
(1910)
11 CriLJ 453 (458) (DB) (Cal)
·
The
words “waging war” occurring in Section 121 of the Penal Code and the words
“waged war” occurring in sub-clause (III) of clause (b) of Article 2 of
President’s Order No. 8 of 1972 mean waging war in the manner usual in a war-
In order to support a conviction on a charge under Section 121 of the Penal
Code it is not enough to show that the accused used highly emotional and
opinionated language against the Government in public speeches- 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 Vs. The State 3 PLD (HCD) 158
Distinction
between Waging War and Riot:
· Although the offence of waging war
against the Government and the offence of riot may often very nearly run into
each other the distinction between them is clear. Where the rising or tumult
(the act of making a noisy disturbance) is merely for the purpose of
accomplishing some private purpose interesting only to those engaged in it and
not for the purpose of resisting or calling in question the authority of the
Government or its prerogative then the tumult, however numerous or outrageous
the mob may be, is only a riot. But wherever the rising or insurrection has for
its object a general purpose not confined to the peculiar interests of the
persons concerned in it, but common to the whole community and striking
directly against the authority of the Government then it assumes the character
of treason, i.e., waging war.
§ AIR 1955 Trav-Co 33.
Section
121A
Conspiracy to commit offences
punishable by section 121
Whoever within or
without Bangladesh conspires to commit any of the offences punishable by
section 121, or to deprive Bangladesh of the sovereignty of her territories or
of any part thereof, or conspires to overawe, by means of criminal force or the
show of criminal force, the Government, shall be punished with imprisonment for
life or with imprisonment of either description which may extend to ten years,
and shall also be liable to fine.
Explanation
To constitute a conspiracy under this section, it is
not necessary that any act or illegal omission shall take place in pursuance.
Scope
of the section
·
Section
121 embraces not merely a conspiracy to raise a general insurrection but also a
conspiracy to overawe the Government by the organization of a serious riot or a
large and tumultuous unlawful assembly. The word “overawe” imports more
than the creation of an apprehension or alarm or even fear, it connotes the
creation of a situation in which the Government feel themselves compelled to
choose between yielding to force or expose themselves and the members of the
public to a very serious danger; may be to the public property.
Ingredients
·
The
section deals with two kinds of conspiracies:
o (i) conspiring within or without Bangladesh
§ (a) to commit any of the offences punishable
by section 121 or
§ (b) to deprive Bangladesh of the sovereignty
of her territories or any part thereof.
o (ii) Conspiring to overawe by means of
criminal force, or the show of criminal force, the Government.
·
The
essence of the crime of sedition consists in the intention with which the
language is used and such intention has to be judged primarily by the language
used.
§ PLD 1954 (Sind) 80
Conspiracy
to commit offences under section 121
·
The gist
of a conspiracy lies in the agreement of two or more to do an unlawful act or
to do a lawful act by unlawful means. So long as such a design rests in
intention only, it is not indictable, but when two or more persons agree to
carry it into effect, the very plot is an act in itself and the act of each of
the parties, promise against promise, actus contra actum (A contract is
an act as it were against an act) capable of being enforced if lawful,
punishable, if for a criminal object or for the use of criminal means.
§ (1910) 11 CriLJ 453 (Cal)
·
“Conspire”
is nothing, agreement is the thing.
§ (1911) 12 CriLJ 286
Proof
of conspiracy
·
Conspiracy
is generally hatched in secrecy. It must, therefore, be remembered that direct
proof can scarcely be afforded of a conspiracy. In such a situation the
prosecution is not obliged to prove that the persons accused actually met and
put their heads together and after a formal consultation came to an express
agreement to do evil. On the contrary, if the facts as proved are such that the
jury “as reasonable men can say there was a common design and the prisoners
were acting in concert to do what is wrong, that is evidence from which jury
may suppose that a conspiracy was actually formed”.
§ AIR 1929 Pat 145
·
Where
several persons are charged with the same conspiracy, it is a legal
impossibility to find some guilty of one conspiracy and some of another. Any
member who is not guilty of the particular conspiracy is entitled to be
acquitted.
§ (1911) 12 CriLJ 286
Conspiracy
to overawe the Government-
·
The word
“overawe” clearly imports more than the creation of apprehension or
alarm or even perhaps fear. It connotes the creation of a situation in which
the members of the Government feel themselves compelled to choose between
yielding to force or expose themselves and the members of the public to a very
serious danger. It is not necessary that the danger should be a danger of
assassination or of bodily injury to themselves. The danger might well be a
danger to public property or to the safety of the members of the general
public.
§ AIR 1951 Pat 60.
Section
122
Collecting
arms, etc. with intention of waging war against Bangladesh
Whoever collects men, arms or ammunition or otherwise
prepares to wage war against Bangladesh is an offence & whoever commits
this offence shall be punished with imprisonment for life or imprisonment of
either description for a term not exceeding ten years, & with fine also.
Scope of the section:
The act made punishable by this section cannot be
considered attempts, they are in truth preparations made for committing the
offence of waging war. Preparation to commit an offence is punishable only when
the preparation is to commit an offence under section 122.[Kappula Venket Rao
Vs.State of AP,AIR 2004 SC 1874.]
Section 123
Concealing with
intent to facilitate design to wage war
Whoever by any act or any illegal omission conceals
the existence of a design to wage war against Bangladesh, intending by such
concealment to facilitate, or knowing it to be likely that such concealment
will facilitate the waging of such war, shall be punished with imprisonment of
either description for a term which may extend to ten years, & with fine
also.
Scope
of the section
This section reiterates the principle enumerated in
section 118, the only difference being that the punishment under it is more
severe. A conspiracy to wage war (S. 121A) will necessarily amount to design to
wage war & the concealment of such conspiracy will fall under this section.
[(1912) 13 CrLJ 609]
A charge under this section can be joined with a
charge under S.121A.The charge under S. 121 (A) is that of conspiracy to wage
war or to overawe the Government. In furtherance of that conspiracy the
conspirators may collect arms or they may conceal the existence of their
conspiracy from the authorities. All these acts if done will be part of one
transaction & therefore may charge jointly under s.235 of Criminal P.C.
[(1912) 13 CrlJ 608]
Section 123A
Condemnation of
the creation of the State, & advocacy of abolition of its sovereignty
1)
whoever with or
without Bangladesh, with intent to influence, or knowing it to be likely that
he will influence, any person or the whole or any section of the public, in a
manner likely to be prejudicial to the safety of Bangladesh, or to endanger the
sovereignty of Bangladesh in respect of all or any of the territories lying
within its borders, shall by words, spoken or written, or by signs or visible
representation condemn the creation of Bangladesh in pursuance of the
Proclamation of Independence on the twenty sixth day of March, 1971,or advocate
the curtailment or abolition of the sovereignty of Bangladesh in respect of all
or any of the territories lying within its borders, whether any amalgamation
with the neighboring States or otherwise, shall be punished with rigorous
imprisonment which may extend to ten years and shall also be liable to fine.
2)
Notwithstanding
anything contained in any other law for the time being in force, when any
person is proceeded against under this section it shall be lawful for any Court
before which he may be produced in the course of the investigation or trial, to
make such orders as it think fit in respect of his movements, of his association
or communication with other persons, & of his activities in regard to
dissemination of news, propagation of opinions, until such time as the case is
finally decided.
3)
Any Court which is
a Court of appeal or revision in relation to the Court mentioned in sub-section
(2) may also make an order under that sub-section.
Section 124
Assaulting President, The Government, etc., with intent to
compel or restrain the exercise of any lawful power:
Whoever,
with the intention of inducing or compelling the President of Bangladesh, or
[the Government], to exercise or refrain from exercising in any manner any of
the lawful powers of the President, or [the Government], assaults, or
wrongfully restrains, or attempts wrongfully to restrain, or overawes, by means
of criminal force or the show of criminal force, or attempts so to overawe, the
President, shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.
Scope of the section:
The section
deals with assault on president and Governor with intent to compel or estrain
the exercise of any lawful power, conditions of the section is:
i.
The person assaulted is the president of Bangladesh or the
Government.
ii.
The accused assaulted or attempted to assault such person or
wrongfully restrained or attempted to restrain such person or that the accused
used a criminal force or show of criminal force.
iii.
The accused did so with the intention of inducing or
compelling such person to exercise or refrain from exercising any of his lawful
powers.
Classification u/schedule 1 CrPC:
|
Offence |
Punishment |
|
Assaulting
President, Governor, etc. with intent to compel or restrain the exercise of
any lawful power |
7 Years + Fine |
|
Cognizance |
Bail |
Triable By |
|
Cognizable |
Non-Bailable |
Court
of Session |
Composition u/s 320 CrPC:
|
Offence is NOT listed under Compoundable
Offences |
Section
124(A)
Sedition
Whoever by words, either spoken or
written, or by signs, or by visible representation, or otherwise, brings or
attempts to bring into hatred or contempt, or excites or attempts to excite
disaffection towards, the Government established by law shall be punished
with 3 [imprisonment for life] or any shorter term, to which fine
may be added, or with imprisonment which may extend to three years, to which fine
may be added, or with fine.
Explanation 1
The expression "disaffection" includes disloyalty and
all feelings of enmity.
Explanation 2
Comments expressing
disapprobation of the measures of the Government with a view to obtain their
alteration by lawful means, without exciting or attempting to excite hatred,
contempt or disaffection, do not constitute an offence under this section.
Explanation 3
Comments expressing disapprobation of the
administrative or other action of the Government without exciting or attempting
to excite hatred, contempt or disaffection, do not constitute an offence under
this section.
Ingredients
This
section requires two essentials: -
1. Bringing
or attempting to bring into hatred or contempt, or exciting or at-tempting to
excite disaffection towards, the Government of Bangladesh.
2. Such
act or attempt may be done
i.
By words, either spoken or written or
ii.
By signs or
iii.
By visible representation.
COMMENT
The
provisions of this section are not unconstitutional as being violated of the
fundamental right of freedom of speech and expression under Art. 39 of the
Constitution. The Explanations to the section make it clear that criticism of
public measures or comment on Governmental action, however strongly worded,
within reasonable limits and consistent with the fundamental right of freedom
of speech and expression is not affected. It is only when the words have the
pernicious tendency or intention, of creating public dis-order or disturbance
of law and order that the law steps in.[1]
If
the accused intended by the articles to excite rebellion or disturbance, his
act would doubtless fall within this section, and would probably fall within
other sections of the Penal Code. If he tried to excite feelings of hatred or
contempt towards the Government, which is sufficient to make him guilty under
this section.[2]
In
order to decide whether or not speech constitutes an attempt to excite hatred,
contempt or disaffection, it should be viewed from the standpoint of the types
of persons to whom it was primarily addressed. On the one hand, their
limitations, if any, have to be taken into account; on the other, the fact that
the words may convey to them a literal meaning must not be lost sight of. The
time and the place are also factors which should be considered.[3]
The
section places absolutely on the same footing the successful exciting o feelings
of disaffection and the unsuccessful attempt to excite them.
Explanations
2 and 3 - Both these Explanations have a strictly defined and limited scope.
They have no-application unless the article in question criticizes "the
measures of Government” or “administrative or other action of the
Government" without exciting or attempting to excite hatred, contempt or
disaffection. The object of the Explanations is to protect bona fide criticism of public measures and institutions with a view
to their improvement, and to the remedying of grievances and abuses. A
journalist may canvass and censure the acts of Government and their policy and
indeed it is his duty.[4] But a publicist, a
journalist, or a speaker, has no right to attribute dishonest or immoral
motives to Government.[5]
Where
disapprobation of measures of Government or of administrative or other actions
of Government is motivated throughout by a desire to excite hatred, contempt
and disaffection towards it, it is immaterial to consider whether absolute independence
is advised or any reform of constitution advocated.
Where
an article in a newspaper read as a whole amounted in a sense to nothing more
than a censure expressed in exaggerated, inflated and intemperate language, on
a stillborn bill, it was held that it did not come within this section.
It
is not sedition merely to criticize Government however bitterly or forcibly
that may be done, or to seek its overthrow by constitutional means in order
that another Government, equally constitutional, may be substituted in its
place in a constitutional way. It becomes sedition only when the intention or
the attempt is to induce people to cease to obey the law and to cease to uphold
lawful authority.
Constitutional
Validity of the section:
·
AIR
1962 SC 955
This
section will come into operation only in cases where the speech, writing or
other activity of the accused which is subject-matter of the charge under this
section was intended or has a tendency to prejudicially affect the security of
the state, public order and the like and hence, the section clearly came within
the saving clause in article 39(2) of the constitution and hence the validity of
the section was not open to question under the Constitution.
Distinction
between sedition and abetment of waging war:
· AIR 1922 Bom 284
So long as a man only tries to inflame feelings
or to excite a state of mind he is not guilty of anything more than sedition.
It is only when he definitely and clearly incites to action that he is guilty
of instigation and therefore abetting the waging of war.
Section-125
Whoever wages war against the
Government of any Asiatic power in alliance or at peace with Bangladesh or
attempts to wage such war, or abets the waging of such war, shall be punished
with [imprisonment] for life, to which fine may be added, or with imprisonment
of either description for a term which may extend to seven years, to which fine
may be added, or with fine.
COMMENT:
This section restrains a person from
making Bangladesh the base of intrigues
and enterprise for the restoration of deposed rulers or other like purposes.
"One Sovereign power is bound to respect the subjects
and the rights of all other sovereign powers outside its own territory".
This section, however, does not
affect Bangladesh's right as sovereign nation to offer political asylum to a
deposed ruler.
Scope of the Section:
This section is a reiteration of
the age-old principle of peaceful
coexistence of different countries of the world, especially neighboring
countries.
This section says that
waging war or attempting to wage war against the government of any Asiatic
Power, which is in alliance with or which is at peace with, Government of
Bangladesh is punishable with imprisonment for life to which fine maybe added,
or with simple or rigorous imprisonment extending up to seven years' to which
fine maybe added, or with fine.
Anup Chetia and his companions were
arrested from a house in Dhaka's Mohammadpur area on December 21, 1997. They
were charged with illegal stay in Bangladesh and holding unauthorized foreign
currency and a satellite phone.
The Court observed that the purpose
of extradition of Mr. Chetia to Indian Authority is to base its international
relations by maintaining the principle of respect for national sovereignty,
equality and non-interference of international affairs of other countries under
Article 25(1) of the Constitution of
People’s Republic of Bangladesh. [Saiful Islam Dilder Vs. Bangladesh & Others]
Offence: Waging war against
any Asiatic power in alliance or at peace with the govt. of Bangladesh or
abetting the waging of such war.
Punishment: Imprisonment for
life + Fine or 7 Years + Fine or Fine
Cognizance: Cognizable
Bail: Non-Bailable
Triable: Court of
Session
Section-126
Whoever commits depredation, or
makes preparations to commit depredation, on the territories of any Power in
alliance or at peace with Bangladesh, shall be punished with imprisonment of
either description for a term which may extend to seven years, and shall also
be liable to fine and to forfeiture of any property used or intended to be used
in committing such depredation, or acquired by such depredation.
COMMENT
Depredation
The preceding section provides for
waging war against any Asiatic Power in alliance with the Government of Bangladesh,
this section prevents the commission of depredation or plunder on territories
of States at peace with the Government of Bangladesh.
The scope of this section is much
wider than the preceding section, for it applies to a Power which may or may
not be Asiatic.
Scope of the Section:
The section makes committing
depredation, or making preparations to commit depredation, on the territories
of any Power in alliance or at peace with the Government of Bangladesh, a
punishable offence.
The offender shall be punished with
simple or rigorous imprisonment for a term extending up to seven years, and
shall also be liable to fine and to forfeiture of any property used or intended
to be used in committing such depredation, or acquired by such depredation.
It
is interesting to note that such property can be forfeited by law.
The section punishes both the act and its preparation with the
same punishment at the same very place.
The word 'depredation' means act of
plundering or preying upon. While section 125 is limited to waging, or
attempting or abetting to wage war only against any Asiatic Power, this section
is not limited to committing, or making preparations for committing,
depredation only on the territory of an Asiatic Power but extends to such an
act on the territories of any Power that is in alliance or at peace with the
Government of India.
Offence: Committing
depredation on the territories of any power in alliance or at peace with the
Government of India
Punishment: 7
Years + Fine + forfeiture of property
Cognizance: Cognizable
Bail: Non-Bailable
Triable: Court
of Session
Section-127
Whoever receives any property
knowing the offences mentioned in sections 125 and 126, shall be punished with
imprisonment of either description for a term which may extend to seven years,
and shall also be liable to fine and to forfeiture of the property so received.
COMMENT:
This section applies to those
persons who knowingly receive any property obtained by waging war with a Power
at peace with the Government of Bangladesh or by committing depredation on its
territories.
Scope of the Section:
This section partly takes care of a
circumstance which may result out of an offence committed under either of
section 125 or 126 of the Code.
It says that whoever receives any
property with the knowledge that the same has been taken by committing either
an offence under section 125 or 126 of the Code, shall be punished with simple
or rigorous imprisonment for a term extending up to seven years, and shall also
be liable to fine and forfeiture of the property so received.
Here again the law provides that the
property so received can be forfeited.
In other words, property received by
waging war against an Asiatic Power, or committing depredation on the territory
of any Power in alliance or at peace with the Government of Bangladesh, has
been made punishable under this section.
One of the objects of this provision
is not to allow Bangladeshi territory to be used as a haven by persons
knowingly receiving property which has come by committing an offence under section
125 or 126 of the Code.
For a conviction under this section,
it is not necessary that the principal offender must be prosecuted or convicted
under section 125 or 126 of the Code. Had this provision not been in the Code,
Bangladesh could be a market for the receipt of such property.
Offence: Receiving
property taken by war or depredation mentioned in sections 125 & 126
Punishment: 7 years + Fine + Forfeiture
of property
Bail:
Non-Bailable
Triable: Court of Session
Section 128
(Public servant
voluntarily allowing prisoner of State or war to escape)
According to this section-
Whoever, being a public servant and having
the custody of any State prisoner and prisoner of war, voluntarily allows such
prisoner to escape from any place in which such prisoner is confined, shall be
punished with imprisonment for life or imprisonment of either description for a
term which may extend to ten years and shall also be liable to fine.
Scope of this section
A state prisoner is a prisoner arrested and confined
for reasons of state.
And according to Geneva Convention (III)
on Prisoners of War, 1949, Article 4-
Prisoners of war are persons falling under
one of the following categories, who have fallen into the power of the enemy:
1.
Members
of the armed force of a party to the conflict including militias or volunteer
corps forming such armed force.
2.
Members
of other militias and members of other volunteer corps, including those of
organized resistant movements, belonging to a Party to the conflict and operating
in or outside their own territory, even if the territory is occupied, provided
that such militia and volunteer corps fulfil the following conditions:
a.
That of
being commanded by a person responsible for his subordinates;
b.
That of
having a fixed distinctive sign recognizable at a distance;
c.
That of
carrying arms openly;
d.
That of
conducting their operations in accordance with the laws and customs of war.
3.
Members
of regular armed force who profess allegiance to a government or authority not
recognized by the Detaining power.
4.
Persons
who accompany the armed forces without actually being members thereof, such as
civilian members of military aircraft crews, war correspondents, supply
contractors etc. Provided that they have received authorization from the armed force
which they accompany.
5.
Member of
crews, including masters, pilots and apprentices, of the merchant marine and
the crews of civil aircraft of the Parties to the conflict, who do not benefit
by more favorable treatment under any other provisions of international law.
6.
Inhabitants
of a non-occupied territory, who on the approach of the enemy takes up arms to
resist the invading forces, provided that they carry arms openly and respect
the laws and customs of war.
Thus, civilians specially mentioned women and
child who do not attend any hostilities, will not fall under the category of
prisoners of war.
Offence that falls under section 128,
must prove that-
1.
The
accused was a public servant.
2.
That he
had the person in question in his custody.
3.
That such
person was state prisoner or prisoner of war.
4.
That the
person escaped.
5.
That the
accused allowed the prisoner to escape from the place where he was confined.
6.
That the
accused did so voluntarily.
Section 129
(Public servant
negligently suffering such prisoner to escape)
According to this section, whoever, being a
public servant and having the custody of any state prisoner or prisoner of war,
negligently suffers such prisoner to escape from any place of confinement in
which such prisoner is confined, shall be punished with simple imprisonment for
a term which may extend to three years, and shall also be liable to fine.
Scope of this section
This section deals with the Government
servant who has the custody of the prisoner acting negligently in allowing the prisoner
to escape.
Offence to be fallen under this section, has
to prove that-
1.
The
accused was a public servant.
2.
That such
person was Sate prisoner or prisoner of war.
3.
That the
accused suffered such prisoner to escape from the place of confinement.
4.
That the
accused did so negligently.
Section 130:
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 harbors 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, shall be punished with
imprisonment for life, or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.
Explanation: —
A State prisoner or prisoner of war,
who is permitted to be at large on his parole within certain limits in, is
said to escape from lawful custody if he goes beyond the limits within which he
is allowed to be at large.
Scope of the section:
This section is a general provision
applicable to all and is not limited to liability of public servants only as is
the case with sections 128 and 129 of the Code. The use of the word ‘knowingly’
shows that the ‘mens rea’ for the offence under this section is the knowledge
on the part of the accused that the person for whose interest or benefit he is
acting is a state prisoner or prisoner of war. If the prosecution fails to
prove such knowledge on the part of the accused, his conviction cannot be
maintained.
The section says that whoever aids or assists any state
prisoner or prisoner of war in escaping from lawful custody with the knowledge
that the person he is helping is a state prisoner or prisoner of war, or
rescues or attempts to rescue any such prisoner with such knowledge, or harbors
or conceals any such prisoner who has escaped from lawful custody with such
knowledge, or offers or attempts to offer any resistance to the recapture of
such prisoner with such knowledge, shall be punished with imprisonment for
life, or with simple or rigorous imprisonment extending up to ten years, and
shall also be liable to fine.
According to the explanation
attached to the section a state prisoner or prisoner of war who has been
released on parole with the condition that he will have free movement within
specified limits in Bangladesh will be presumed to have escaped from lawful
custody if he goes beyond the limits within which he has been allowed movement.
The conditions of these Sections:
i.
The
person in question was a prisoner of state or of war.
ii.
That
such prisoner was at the time in lawful custody or that such prisoner had
escaped from lawful custody.
iii.
that
the accused knew that such person was in lawful custody as a prisoner of state
or of war
or, that he
knew that such prisoner had escaped therefrom.
iv.
that
he aided or assisted such prisoner in escaping; or that he rescued such
prisoner or attempted to do so; or that he harbored or concealed such prisoner;
or, that
such prisoner was about to recaptured but the accused offered or attempted to
offer resistance to such recapture.
Classification u/s 320 CrPC:
|
Offence |
Punishment |
|
Aiding
escape of, recuing or harboring such prisoner or offering any resistance to
the recapture of such prisoner |
Imprisonment
for Life or 10 Years + Fine |
|
Cognizance |
Bail |
Triable By |
|
Cognizable |
Non-Bailable |
Court
of Session |
