IPC Section 135 and BNS Section 163: Abetment of Desertion by Soldier, Sailor or Airman
Section 135 of the Indian Penal Code, 1860 dealt with abetting desertion from India's Army, Navy or Air Force. The corresponding provision under the Bharatiya Nyaya Sanhita, 2023 is Section 163, in force from 1 July 2024.
What does BNS Section 163 provide?
Section 163, titled Abetment of desertion of soldier, sailor or airman, punishes a person who abets the desertion of any officer, soldier, sailor or airman serving in the Army, Navy or Air Force of the Government of India. The statutory punishment is imprisonment of either description for a term extending to two years, or a fine, or both.
The phrase imprisonment of either description means that the court may impose simple or rigorous imprisonment, subject to the law and facts of the case. The section does not prescribe a fixed minimum term or a fixed amount of fine.
Earlier law: IPC Section 135
The original IPC Section 135 also punished a person who abetted the desertion of an officer, soldier, sailor or airman from the Indian Army, Navy or Air Force. Its maximum punishment was imprisonment of either description for two years, or a fine, or both. The substantive rule has been carried forward into BNS Section 163.
For offences occurring before 1 July 2024, the applicable law and proceedings require attention to the repeal-and-savings provisions, including BNS Section 358, and the general law on saving prior liabilities. The commencement date alone should not be used to assume that all pending IPC matters have ceased.
Meaning of desertion and abetment
Desertion
Desertion is a service-law concept involving unauthorised abandonment of military, naval or air-force service with the legally required intent. It is distinct from every instance of absence without leave. Whether a service member has deserted depends on the relevant service statute, circumstances and evidence.
Abetment
Under the general principles of abetment in BNS Section 45, a person may abet an act through instigation, conspiracy involving an act or illegal omission, or intentional aid. For Section 163, the prosecution must establish conduct amounting to abetment of the relevant desertion; mere acquaintance or innocent contact is not enough.
Officer, soldier, sailor or airman
These words refer to the relevant members of the Indian armed services. The applicable service laws include the Army Act, 1950, Navy Act, 1957 and Air Force Act, 1950. The precise service status and nature of the alleged desertion must be established in the case.
Essential ingredients of the offence
- The person allegedly encouraged or assisted was an officer, soldier, sailor or airman in the Army, Navy or Air Force of the Government of India.
- The alleged conduct related to desertion, as distinguished from a lawful release or ordinary authorised absence.
- The accused engaged in legally recognisable abetment, such as intentional instigation or aid, established through evidence.
- The required mental element and the relevant connection to the desertion are proved beyond reasonable doubt in a criminal trial.
Section 163 is worded as an offence of abetment; it does not expressly require that desertion must ultimately be completed. This differs from provisions that specifically require the abetted offence to occur. Application in a particular case depends on the statutory rules of abetment and the evidence.
Punishment, arrest, bail and trial
Under BNS Section 163, the maximum sentence is imprisonment of either description for two years, or a fine, or both. The First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) classifies the offence as follows:
| Legal issue | Position under BNS / BNSS |
|---|---|
| Punishment | Up to 2 years' imprisonment, or fine, or both |
| Cognizable? | Yes; subject to applicable arrest safeguards |
| Bailable? | Yes |
| Court competent to try | Any Judicial Magistrate |
| Compounding | Not listed as a compoundable offence under BNSS Section 359 |
Cognizable means the police may investigate a cognizable offence under the applicable BNSS provisions and have statutory powers of arrest, subject to legal safeguards. Bailable means bail is available as of right upon compliance with the relevant conditions. Any Magistrate in the First Schedule refers to a Judicial Magistrate, not an Executive Magistrate.
IPC Section 135 vs BNS Section 163
| Feature | IPC Section 135 | BNS Section 163 |
|---|---|---|
| Legislation | Indian Penal Code, 1860 | Bharatiya Nyaya Sanhita, 2023 |
| Subject | Abetment of desertion from Indian armed forces | Abetment of desertion from Indian armed forces |
| Maximum penalty | 2 years, or fine, or both | 2 years, or fine, or both |
| Application | Earlier offences, subject to savings | New law from 1 July 2024 |
Illustrative situations
Example 1: A person knowingly arranges false travel documents and transport to help a service member abandon service with the requisite intent. Depending on the evidence, this may amount to intentional aid in desertion.
Example 2: A relative provides ordinary accommodation without knowing of any plan to desert. That fact alone does not establish the necessary abetment.
Example 3: A person shelters a service member after learning that the member has already deserted. This may raise a separate question under BNS Section 164 (harbouring deserter), rather than automatically establishing Section 163.
Related provisions
- BNS Section 45: Abetment of a thing - general forms of abetment.
- BNS Section 159: Abetting mutiny or attempting to seduce a service member from duty.
- BNS Section 161: Abetment of assault on a superior officer in execution of duty.
- BNS Section 162: Abetment of such assault where the assault is committed.
- BNS Section 164: Harbouring a deserter, with a statutory exception for a spouse.
- BNS Section 167: Provision concerning persons subject to specified service Acts.
- BNSS First Schedule: Classification of offences, including Section 163.
Frequently asked questions
What is IPC Section 135?
IPC Section 135 punished abetment of desertion by an officer, soldier, sailor or airman in the Indian armed forces. For conduct governed by the law from 1 July 2024, the corresponding provision is BNS Section 163.
What is the punishment under BNS Section 163?
Imprisonment of either description for up to two years, or a fine, or both.
Is the offence cognizable and bailable?
Yes. The First Schedule to the BNSS classifies BNS Section 163 as cognizable and bailable, triable by any Judicial Magistrate.
Must desertion actually occur for Section 163 to apply?
The section penalises abetment of desertion; its wording does not expressly make completed desertion a condition. Whether the conduct amounts to abetment depends on the evidence and the applicable general rules of abetment.
How is abetment of desertion different from harbouring a deserter?
BNS Section 163 addresses encouraging or assisting desertion. BNS Section 164 addresses knowingly harbouring a person who has deserted, subject to the statutory spouse exception.
Official legal sources
- Bharatiya Nyaya Sanhita, 2023 - official India Code Act PDF (see Sections 45, 163, 164, 167 and 358).
- Bharatiya Nagarik Suraksha Sanhita, 2023 - India Code PDF (see First Schedule and Section 359).
- National Crime Records Bureau - BNS chapter-wise text.
- National Crime Records Bureau - BNSS First Schedule.
Legal information only: This page explains the general statutory position and does not replace advice based on the facts of an individual case. Check the current legislation, amendments and binding court decisions before relying on any provision.