IPC Section 136 and BNS Section 164: Harbouring a Deserter

Harbouring a deserter from India's Army, Navy or Air Force is addressed by Section 164 of the Bharatiya Nyaya Sanhita, 2023 (BNS). The earlier provision was Section 136 of the Indian Penal Code, 1860 (IPC). This guide explains the offence, punishment, spouse exception, and procedural classification.

BNS Section 164: Current legal provision

Section 164, in Chapter VIII of the BNS (offences relating to the Army, Navy and Air Force), provides that a person who, knowing or having reason to believe that an officer, soldier, sailor or airman of the Government of India's armed forces has deserted, harbours that person, is liable to imprisonment of either description for up to two years, or a fine, or both.

Statutory exception: The section does not apply when harbour is given by the spouse of the deserter. This exception is expressly included in the current law.

Read the official Bharatiya Nyaya Sanhita, 2023 (India Code PDF) and the NCRB text of the BNS provisions.

Meaning and essential ingredients of harbouring a deserter

For Section 164 to apply, the prosecution must establish the facts required by the provision:

1. Desertion: The person sheltered is an officer, soldier, sailor or airman who has deserted the Army, Navy or Air Force of the Government of India.
2. Knowledge or reason to believe: The accused knew, or had reason to believe, that the service member had deserted.
3. Harbouring: The accused harboured the deserter. Whether particular conduct amounts to harbouring depends on the statutory meaning and evidence.
4. Exception: The provision does not extend to harbour given by the deserter's spouse.

The law does not make every ordinary interaction with an absent service member a criminal offence. Proof of the statutory ingredients is necessary.

Punishment under BNS Section 164

The court may impose imprisonment of either description for a term up to two years, or a fine, or both. The section does not specify a fixed fine amount. Sentencing depends on the law and circumstances of the case.

Is BNS Section 164 cognizable and bailable?

According to the First Schedule of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the offence is:

• Cognizable: Police may arrest without a warrant subject to applicable legal safeguards.
• Bailable: The statutory right to bail applies in accordance with procedural law.
• Triable by any Magistrate: The First Schedule assigns the offence to any Magistrate (a Judicial Magistrate, not an Executive Magistrate).

See the official BNSS, 2023, First Schedule (India Code PDF) or the NCRB First Schedule reference.

IPC Section 136: Earlier law and spouse exception

IPC Section 136 made it an offence to harbour an officer, soldier, sailor or airman who had deserted, where the person giving shelter knew or had reason to believe that desertion had occurred. The maximum punishment was two years' imprisonment, a fine, or both.

Its exception stated that the provision did not extend to harbour given by a wife to her husband. BNS Section 164 retains the offence and punishment but changes the exception to the spouse of the deserter.

The BNS generally took effect on 1 July 2024. For alleged acts before that date, the applicable law and savings provisions require examination; the repeal of the IPC does not automatically eliminate liability for earlier conduct.

IPC 136 and BNS 164: Legal comparison

Illustrative situations

Example 1: A civilian is told that an Army officer has deserted and deliberately conceals the officer to keep the officer from being found. Depending on proof of desertion, knowledge and harbouring, Section 164 may be relevant.

Example 2: A service member's spouse provides shelter after the service member deserts. The express spouse exception in Section 164 is relevant to that conduct.

Example 3: A person offers routine assistance without knowing or having reason to believe that the recipient has deserted. The statutory mental element would require careful consideration before any liability could be established.

Related offences involving the armed forces

Harbouring a deserter is distinct from abetment of desertion (IPC Section 135; BNS Section 163). Other related provisions include a deserter concealed aboard a merchant vessel (IPC Section 137; BNS Section 165) and abetment of insubordination (IPC Section 138; BNS Section 166).

Frequently asked questions

Official legal sources

• India Code: Bharatiya Nyaya Sanhita, 2023, Section 164
• India Code: Bharatiya Nagarik Suraksha Sanhita, 2023, First Schedule
• NCRB: BNS chapter reference

Legal information for general reference, not a substitute for professional advice. Verify statutory amendments, commencement provisions, judicial interpretation and local procedural rules for a particular case.