IPC Section 138 and BNS Section 166: Abetment of Insubordination by Soldier, Sailor or Airman
Section 138 of the Indian Penal Code, 1860 dealt with abetment of an act of insubordination by a member of the armed forces when that act was committed as a consequence. The corresponding provision under the Bharatiya Nyaya Sanhita, 2023 is Section 166, which applies under the new criminal law framework from 1 July 2024.
BNS Section 166: Current legal provision
Section 166 of the Bharatiya Nyaya Sanhita, 2023 addresses abetment of an act of insubordination by an officer, soldier, sailor or airman in the Army, Navy or Air Force of the Government of India, where the abettor knows the act to be insubordination and the act is committed as a consequence of that abetment.
The prescribed punishment is imprisonment of either description for a term extending to six months, or a fine, or both.
For the exact enacted language, consult the official Bharatiya Nyaya Sanhita, 2023 (India Code PDF), Chapter VII, Section 166.
IPC Section 138: Earlier provision
Under Section 138 of the Indian Penal Code, 1860, a person who abetted what the person knew to be an act of insubordination by an officer, soldier, sailor or airman in the Indian Army, Navy or Air Force was punishable if that act of insubordination was committed in consequence of the abetment.
The punishment under the IPC was also imprisonment of either description for up to six months, or a fine, or both. The earlier section remains relevant to conduct occurring before the new criminal laws commenced, subject to applicable repeal and savings rules.
Meaning of important legal terms
Abetment
Abetment generally involves instigating another person to do an act, engaging in a conspiracy for doing it accompanied by an act or illegal omission in pursuance of that conspiracy, or intentionally aiding its commission. The applicable statutory definition and facts determine whether a particular form of assistance amounts to abetment.
Insubordination
In the armed forces context, insubordination generally refers to conduct defying or disobeying lawful military authority or discipline. Whether particular conduct constitutes insubordination depends on the governing service law, applicable orders and circumstances.
Officer, soldier, sailor or airman
These expressions refer to personnel covered by the relevant statutory provisions and service laws. The Army Act, 1950, Navy Act, 1957 and Air Force Act, 1950 may be relevant when determining service status and disciplinary duties.
Essential ingredients of the offence
- Relevant service personnel: The underlying conduct involves an officer, soldier, sailor or airman of the Indian armed forces.
- Act of insubordination: The conduct qualifies as insubordination under the applicable legal and service context.
- Knowledge: The accused knew that the conduct being encouraged or assisted was an act of insubordination.
- Abetment: The accused instigated, intentionally aided or otherwise abetted the act within the statutory meaning.
- Resulting act and connection: The act of insubordination was committed in consequence of the abetment.
Punishment and legal consequences
| Issue | Legal position |
|---|---|
| Offence | Abetment of an act of insubordination by specified armed forces personnel, followed by the act in consequence |
| Earlier law | IPC Section 138 |
| Current corresponding law | BNS Section 166 |
| Imprisonment | Either description, up to six months |
| Fine | Fine may be imposed instead of, or along with, imprisonment |
| Procedure | Consult the BNSS First Schedule and any applicable special service-law provisions for classification and forum |
Whether a particular case is cognizable or bailable and the competent forum must be determined by the relevant entry in the official Bharatiya Nagarik Suraksha Sanhita, 2023 and any applicable special legislation. This page does not substitute for checking the current statutory schedule.
Distinction from related armed forces offences
Abetment of desertion (IPC Section 135 / BNS Section 163) concerns assistance or encouragement to desert service. Harbouring a deserter (IPC Section 136 / BNS Section 164) concerns sheltering a person known or believed to have deserted. Section 166 instead focuses on an act of insubordination that is actually committed following abetment.
Other nearby provisions concern abetment of mutiny or assault on a superior officer. The precise nature of the underlying act matters when identifying the applicable offence.
Illustrative example
Suppose a person knowingly urges an armed forces member to defy a lawful order and that member subsequently commits an act legally amounting to insubordination because of that encouragement. Subject to proof of all statutory elements, the conduct may attract BNS Section 166. By contrast, mere criticism of an order without the required abetment and resulting act does not automatically satisfy this section.
Frequently asked questions
What is the corresponding BNS provision for IPC Section 138?
Section 166 of the Bharatiya Nyaya Sanhita, 2023 covers abetment of an act of insubordination by an officer, soldier, sailor or airman, where that act occurs as a consequence of the abetment.
What is the punishment under BNS Section 166?
Imprisonment of either description for up to six months, or a fine, or both.
Is actual insubordination required?
Yes. The provision expressly requires that the act of insubordination be committed in consequence of the abetment.
Is mere disagreement with a superior officer sufficient?
Not necessarily. The prosecution must establish an act of insubordination, the accused's knowledge and abetment, and the statutory causal connection.
Does IPC Section 138 still apply?
The BNS took effect on 1 July 2024. The applicable law for earlier conduct depends on the commencement, repeal and savings provisions and the facts of the case.
Official legal sources and further reading
- Bharatiya Nyaya Sanhita, 2023 - official text (India Code)
- India Code - central legislation, including the IPC and BNSS
- Legislative Department, Ministry of Law and Justice
- Ministry of Home Affairs - criminal law notifications and resources
Legal information notice: This article provides general information, not legal advice. For proceedings, confirm the official current text, commencement and savings provisions, relevant service law and any subsequent amendments or binding judgments.