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KembaraXtra - Bharatiya Nyaya Sanhita - Section 164 - Harbouring Deserter
Introduction
Section 164 of the Bharatiya Nyaya Sanhita, 2023, deals with the offence of harbouring a deserter from the Army, Navy or Air Force of the Government of India.
The provision applies where a person shelters or harbours an officer, soldier, sailor or airman while knowing, or having reason to believe, that the individual has deserted from the armed forces.
The section therefore addresses the harbouring of military personnel who have deserted their service, subject to the exception provided in the section.
Meaning of Section 164
Under Section 164, a person commits an offence if they harbour an officer, soldier, sailor or airman belonging to the Army, Navy or Air Force of the Government of India while knowing or having reason to believe that the person has deserted.
The provision does not require the person harbouring the deserter to possess definite or direct knowledge of the desertion in every case.
It is sufficient that the person either knows about the desertion or has reason to believe that the officer, soldier, sailor or airman has deserted.
However, the offence is subject to the statutory exception concerning the spouse of the deserter.
Essential Ingredients of Section 164
1. There Must Be an Officer, Soldier, Sailor or Airman
The person being harboured must be an officer, soldier, sailor or airman belonging to the Army, Navy or Air Force of the Government of India.
The provision specifically identifies these categories of armed forces personnel.
2. The Person Must Have Deserted
The officer, soldier, sailor or airman must have deserted from the relevant armed service.
The provision concerns harbouring a deserter rather than merely providing shelter to a person who belongs to the armed forces.
3. The Accused Must Harbour the Deserter
The accused must harbour the officer, soldier, sailor or airman who has deserted.
The prohibited conduct is the act of harbouring such a deserter in the circumstances described by the section.
4. Knowledge or Reason to Believe Is Required
The accused must know or have reason to believe that the person being harboured has deserted.
The provision therefore recognises two alternative states of awareness:
- Actual knowledge that the person has deserted.
- Reason to believe that the person has deserted.
The existence of either is sufficient to satisfy this requirement.
5. The Statutory Exception Must Not Apply
The offence is expressly subject to an exception.
Accordingly, the general prohibition on harbouring a deserter must be read together with the exception provided by the section.
Exception — Harbouring by the Spouse of the Deserter
Section 164 contains an exception relating to the spouse of the deserter.
The supplied statutory extract is incomplete at the point where the exception begins. However, the accompanying commentary expressly identifies the relevant wording as “the spouse of the deserter.”
The exception therefore excludes harbouring by the deserter’s spouse from the operation of this provision.
This exception recognises a distinction between harbouring by other persons and harbouring by the spouse of the deserter.
Punishment Under Section 164
A person who commits the offence under Section 164 may be punished with:
- Imprisonment of either description for a term extending up to two years; or
- Fine; or
- Both imprisonment and fine.
The provision permits imprisonment, fine or both.
The supplied statutory text does not specify a numerical maximum amount for the fine.
Classification of the Offence
According to the classification provided in the supplied text:
Nature of Offence: Cognizable.
Bail: Bailable.
Triable By: Any Magistrate.
Commentary
Section 164 of the Bharatiya Nyaya Sanhita, 2023, corresponds to Section 136 of the Indian Penal Code, 1860.
According to the supplied commentary, the language of the provision remains substantially unchanged, and the provision has been retained.
However, a modification has been made to the wording of the exception.
Under the earlier provision, the exception referred to “a wife to her husband.”
In Section 164 of the Bharatiya Nyaya Sanhita, 2023, this expression has been replaced with “the spouse of the deserter.”
The revised wording is gender-neutral and refers to the spouse of the deserter rather than restricting the exception to a wife harbouring her husband.
Key Takeaway
Section 164 makes it an offence to harbour an officer, soldier, sailor or airman who has deserted from the Army, Navy or Air Force of the Government of India, where the person harbouring the deserter knows or has reason to believe that desertion has occurred.
The offence requires harbouring, the desertion of the specified service personnel, and knowledge or reason to believe that the person has deserted.
The provision contains an exception for the spouse of the deserter.
The punishment may extend to two years’ imprisonment, or fine, or both.
The offence is cognizable, bailable and triable by any Magistrate.
IPC Equivalent: Section 136 IPC.
Legislative Position: The provision has been substantially retained, with the earlier expression “a wife to her husband” replaced by the gender-neutral expression “the spouse of the deserter.”
Final Memory Formula:
SECTION 164 = HARBOURING AN OFFICER, SOLDIER, SAILOR OR AIRMAN WHO HAS DESERTED + KNOWLEDGE OR REASON TO BELIEVE IN DESERTION − SPOUSAL EXCEPTION = UP TO TWO YEARS’ IMPRISONMENT OR FINE OR BOTH.
