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KembaraXtra - Bharatiya Nyaya Sanhita - Section 264: Omission to Apprehend, or Sufferance of Escape, on Part of Public Servant, in Cases Not Otherwise Provided For
Introduction
Section 264 of the Bharatiya Nyaya Sanhita, 2023 (BNS) deals with failure by a public servant who is legally bound to apprehend a person or keep that person in confinement.
The offence arises where such public servant, in a case not otherwise covered by Sections 259, 260 or 261 BNS, or by any other law for the time being in force:
- Omits to apprehend the person; or
- Suffers the person to escape from confinement.
The section creates two levels of liability depending on whether the public servant acted:
- Intentionally; or
- Negligently.
The intentional form is treated more seriously than the negligent form.
Basic Formula
Public servant + legal duty to apprehend/confine + case not otherwise covered + omission to apprehend or sufferance of escape + intention/negligence = Section 264
Q1. What does Section 264 provide?
Answer:
Section 264 applies where a public servant is legally bound:
- To apprehend a person; or
- To keep a person in confinement,
but either:
- Omits to apprehend that person; or
- Suffers that person to escape from confinement.
The punishment depends on whether the public servant acted:
Intentionally
Imprisonment of either description up to three years, or fine, or both.
Negligently
Simple imprisonment up to two years, or fine, or both.
Q2. What is the object of Section 264?
Answer:
The object is to ensure that public servants entrusted with duties relating to apprehension and custody perform those duties properly.
It protects:
- Lawful arrest;
- Lawful detention;
- Security of custody;
- Administration of justice;
- Accountability of public servants.
Core Principle
A public servant legally responsible for apprehension or custody must not intentionally or negligently fail in that duty.
Q3. Which IPC provision corresponds to Section 264 BNS?
Answer:
According to the supplied comments:
Section 264 BNS = Section 225A IPC
The substantive provision remains unchanged, apart from substitution of the corresponding BNS cross-references.
Q4. Is Section 264 a residual provision?
Answer:
Yes.
It applies only to cases:
“not provided for in section 259, section 260 or section 261, or in any other law for the time being in force”
Therefore, the more specific provisions must be considered first.
Memory
259 → 260 → 261 → other law → 264
Q5. Why is the residual nature of Section 264 important?
Answer:
Because Section 264 is not meant to replace a more specific offence.
It functions as a gap-filling provision.
If the public servant's conduct is already specifically punishable under another applicable provision, that specific provision should ordinarily be examined before Section 264.
Q6. Who can commit an offence under Section 264?
Answer:
The accused must be:
A public servant
This is a special-status offence.
A person who is not a public servant does not satisfy this essential ingredient.
Q7. Is being a public servant alone sufficient?
Answer:
No.
The public servant must also be legally bound, in that capacity:
- To apprehend the person; or
- To keep the person in confinement.
Formula
PUBLIC SERVANT + LEGAL DUTY
Both are necessary.
Q8. What does “legally bound as such public servant” mean?
Answer:
It means the duty must arise because of the person's legal responsibilities as a public servant.
It is not enough that the public servant could have helped or was merely present.
There must be an actual legal obligation.
Q9. What are the essential ingredients of Section 264?
Answer:
The essential ingredients are:
1. The accused must be a public servant;
2. He must be legally bound as such public servant:
o To apprehend a person; or
o To keep that person in confinement;
3. The case must not be otherwise covered by:
o Section 259;
o Section 260;
o Section 261;
o Any other law for the time being in force;
4. The public servant must:
o Omit to apprehend that person; or
o Suffer that person to escape from confinement;
5. The conduct must be either:
o Intentional; or
o Negligent.
Q10. What are the two principal acts punished?
Answer:
Section 264 punishes:
First
Omission to apprehend.
Second
Sufferance of escape from confinement.
Memory
FAIL TO CATCH
or
FAIL TO KEEP
Q11. What does “omit to apprehend” mean?
Answer:
It means failing to take a person into custody despite being legally bound to do so.
The offence may therefore arise through an omission rather than a positive act.
Q12. What does “suffers him to escape from confinement” mean?
Answer:
It means allowing a person who is in confinement to escape where the public servant is legally responsible for keeping that person confined.
The escape may result from:
- Deliberate conduct; or
- Negligent failure.
Q13. Must the public servant actively help the person escape?
Answer:
No.
Direct physical assistance is not essential.
The public servant may be liable by suffering the escape, including through deliberate or negligent failure to perform the custodial duty.
Q14. What is the difference between omission to apprehend and sufferance of escape?
Answer:
Omission to apprehend
The person has not yet been taken into custody.
Sufferance of escape
The person is already in confinement but is allowed to get away.
Memory
Before custody = omit apprehension
After custody = suffer escape
Q15. What are the two mental states recognised by Section 264?
Answer:
The section distinguishes between:
Intentional conduct
and
Negligent conduct
This distinction directly affects punishment.
Q16. What happens if the public servant acts intentionally?
Answer:
Under Section 264(a), if the public servant intentionally omits to apprehend or intentionally suffers the person to escape, he may be punished with:
- Imprisonment of either description up to three years; or
- Fine; or
- Both.
Q17. What happens if the public servant acts negligently?
Answer:
Under Section 264(b), if the failure is negligent, the punishment is:
- Simple imprisonment up to two years; or
- Fine; or
- Both.
Q18. Why is intentional conduct punished more severely?
Answer:
Because deliberate failure to perform a custodial duty represents a more serious breach of public responsibility than mere negligence.
Memory
Intentional = 3 years
Negligent = 2 years
Q19. What does “intentionally” mean in Section 264(a)?
Answer:
It means the public servant deliberately fails to apprehend the person or deliberately allows the escape.
The omission or sufferance is conscious rather than accidental.
Q20. What does “negligently” mean in Section 264(b)?
Answer:
It refers to a failure to exercise the care required in carrying out the legal duty to apprehend or keep the person confined.
The breach arises from lack of proper care rather than deliberate intention.
Q21. Is mere accident enough under Section 264(b)?
Answer:
No.
A mere unavoidable accident is not the same as negligence.
There must be negligent failure in carrying out the legal duty.
Q22. Must dishonest intention be proved?
Answer:
No.
Dishonesty is not an express ingredient.
The relevant distinction is between:
- Intentional omission or sufferance; and
- Negligent omission or sufferance.
Q23. Must corrupt motive be proved?
Answer:
No.
The section does not require proof of:
- Bribery;
- Corruption;
- Financial gain;
- Personal benefit.
Intentional or negligent breach of the legal duty is enough if the remaining ingredients are satisfied.
Q24. Must actual injury occur?
Answer:
No.
The offence focuses on failure to apprehend or failure to maintain confinement.
No bodily injury or property damage is required.
Q25. Must the person actually escape in every case?
Answer:
No.
The first branch punishes omission to apprehend, so actual escape from existing custody is unnecessary in that branch.
Q26. Must there be an actual escape under the second branch?
Answer:
Yes.
The second branch specifically concerns a person being allowed to escape from confinement.
Q27. What if the public servant has no legal duty to apprehend the person?
Answer:
Section 264 would not apply because a central element is missing.
The public servant must be:
Legally bound
to apprehend or keep the person confined.
Q28. Can a private person commit Section 264?
Answer:
No, not under the wording supplied.
The offender must be a:
Public servant
Q29. Give an example of intentional omission to apprehend.
Answer:
Suppose a public servant is legally required to apprehend A.
He deliberately decides not to do so and allows A to leave.
If the matter is not otherwise covered by Sections 259–261 or another law, Section 264(a) may apply.
Q30. Give an example of negligent omission to apprehend.
Answer:
Suppose a public servant has a clear legal duty to apprehend A but, through serious carelessness, fails to take the necessary steps.
If the failure amounts to negligence and the case is not otherwise specifically covered, Section 264(b) may apply.
Q31. Give an example of intentionally suffering escape.
Answer:
Suppose B is confined under the responsibility of a public servant.
The public servant deliberately leaves the confinement unsecured so that B can escape.
This may fall under Section 264(a).
Q32. Give an example of negligently suffering escape.
Answer:
Suppose a public servant negligently leaves a required security measure unattended, and a lawfully confined person escapes as a result.
This may fall under Section 264(b).
Q33. What is the punishment under Section 264(a)?
Answer:
For intentional conduct:
- Imprisonment of either description up to three years; or
- Fine; or
- Both.
Memory
264(a) = INTENTIONAL = 3 YEARS
Q34. What does “imprisonment of either description” mean under Section 264(a)?
Answer:
It means the Court may impose:
- Simple imprisonment; or
- Rigorous imprisonment.
The maximum term is three years.
Q35. What is the punishment under Section 264(b)?
Answer:
For negligent conduct:
- Simple imprisonment up to two years; or
- Fine; or
- Both.
Memory
264(b) = NEGLIGENT = 2 YEARS SIMPLE
Q36. Can rigorous imprisonment be imposed under Section 264(b)?
Answer:
No.
The supplied text expressly states:
Simple imprisonment
This is an important distinction from Section 264(a).
Q37. Is there a specific maximum fine stated?
Answer:
No.
Both clauses provide for:
Fine
but no specific monetary ceiling is stated in the supplied text.
Q38. What is the classification of Section 264(a)?
Answer:
According to the supplied classification, Section 264(a) is:
- Non-cognizable
- Bailable
- Triable by Magistrate of the First Class
Memory
264(a) = NC + B + MFC
Q39. What is the classification of Section 264(b)?
Answer:
According to the supplied classification, Section 264(b) is:
- Non-cognizable
- Bailable
- Triable by Any Magistrate
Memory
264(b) = NC + B + Any Magistrate
Q40. Are both forms of Section 264 non-cognizable?
Answer:
Yes.
Both Section 264(a) and Section 264(b) are:
Non-cognizable
Q41. Are both forms bailable?
Answer:
Yes.
Both are:
Bailable
Q42. What is the difference in trial courts?
Answer:
Section 264(a)
Triable by Magistrate of the First Class.
Section 264(b)
Triable by Any Magistrate.
Q43. Why should Sections 259, 260 and 261 be checked first?
Answer:
Because Section 264 only operates where the matter is not otherwise provided for.
Exam Sequence
Check 259 → 260 → 261 → other law → then 264
Q44. Can Section 264 override another specific law?
Answer:
No.
Its opening words make clear that it is intended only for residual cases.
The specific provision should be considered first.
Q45. How does Section 264 differ from Section 265?
Answer:
The key difference concerns who commits the wrongful act.
Section 264
The wrongdoer is the public servant who fails in his legal duty to apprehend or keep a person confined.
Section 265
The wrongful conduct consists of:
- Resistance or obstruction to apprehension;
- Escape or attempted escape;
- Rescue or attempted rescue.
Memory
264 = CUSTODIAN FAILS
265 = PERSON RESISTS / ESCAPES / RESCUES
Q46. What is the most important distinction inside Section 264 itself?
Answer:
The distinction is between:
INTENTION
and
NEGLIGENCE
This determines both punishment and trial classification.
Q47. How does punishment differ between intention and negligence?
Answer:
Intentional
Up to 3 years, imprisonment of either description.
Negligent
Up to 2 years, simple imprisonment only.
Memory
Intent = 3
Negligence = 2
Q48. How does the trial court differ?
Answer:
Intentional offence — Section 264(a)
Magistrate of the First Class.
Negligent offence — Section 264(b)
Any Magistrate.
Q49. What is the easiest examination test for Section 264?
Answer:
Ask:
1. Is the accused a public servant?
2. Was he legally bound to apprehend or confine?
3. Is the case outside Sections 259–261 and other specific law?
4. Did he omit to apprehend or allow escape?
5. Was it intentional or negligent?
If yes, Section 264 may apply.
Q50. What is the shortest way to remember Section 264?
Answer:
“PUBLIC SERVANT FAILS TO CATCH OR KEEP.”
Then remember:
Intentional = 3 years
Negligent = 2 years
Key Provisions (Study Notes)
1. Special Offender
The offender must be:
A PUBLIC SERVANT
2. Legal Duty
He must be legally bound:
- To apprehend; or
- To keep in confinement.
3. Residuary Character
The case must not be covered by:
- Section 259;
- Section 260;
- Section 261;
- Any other law for the time being in force.
4. Two Prohibited Failures
Failure One
Omission to apprehend.
Failure Two
Sufferance of escape.
5. Two Levels of Fault
Intentional
More serious.
Negligent
Less serious.
Punishment Notes
Section 264(a) — Intentional
Punishment:
- Imprisonment of either description up to 3 years; or
- Fine; or
- Both.
Classification:
- Non-cognizable;
- Bailable;
- Magistrate of the First Class.
Memory
INTENT = 3 YEARS + MFC
Section 264(b) — Negligent
Punishment:
- Simple imprisonment up to 2 years; or
- Fine; or
- Both.
Classification:
- Non-cognizable;
- Bailable;
- Any Magistrate.
Memory
NEGLIGENCE = 2 YEARS SIMPLE + ANY MAGISTRATE
Difference Between Section 264(a) and Section 264(b)
Section 264(a)
The public servant acts:
Intentionally
The maximum imprisonment is:
3 years
The imprisonment may be:
- Simple; or
- Rigorous.
The case is triable by:
Magistrate of the First Class
Section 264(b)
The public servant acts:
Negligently
The maximum imprisonment is:
2 years
The imprisonment must be:
Simple
The case is triable by:
Any Magistrate
IPC Equivalent and BNS Change
IPC Equivalent
Section 264 BNS = Section 225A IPC
According to the supplied comments:
- The substantive language remains unchanged;
- References to IPC provisions have been replaced with corresponding BNS sections.
Quick Revision Notes
Section
264 BNS
Title
Omission to apprehend, or sufferance of escape, on part of public servant, in cases not otherwise provided for
IPC Equivalent
225A IPC
Offender
Public servant.
Legal Duty
To apprehend or keep a person in confinement.
Acts
- Omits to apprehend;
- Suffers escape.
Nature
Residual provision.
Check First
259, 260, 261 and other applicable law.
264(a)
Intentional.
Punishment
Up to 3 years / fine / both.
Classification
Non-cognizable + Bailable + Magistrate First Class
264(b)
Negligent.
Punishment
Simple imprisonment up to 2 years / fine / both.
Classification
Non-cognizable + Bailable + Any Magistrate
Exam Traps
Trap 1 — Forgetting that the accused must be a public servant
Section 264 is not a general escape offence.
Trap 2 — Forgetting the legal duty
The public servant must be legally bound to apprehend or keep the person confined.
Trap 3 — Ignoring the residual clause
Always check Sections 259, 260 and 261 first.
Trap 4 — Thinking only intentional failure is punishable
Incorrect.
Negligent failure is separately punishable under Section 264(b).
Trap 5 — Giving the same punishment for both clauses
Incorrect.
Intentional = up to 3 years
Negligent = up to 2 years
Trap 6 — Giving rigorous imprisonment under Section 264(b)
Incorrect.
Clause (b) expressly provides:
Simple imprisonment
Trap 7 — Giving the same trial Court for both clauses
Incorrect.
264(a) = Magistrate First Class
264(b) = Any Magistrate
Trap 8 — Confusing Section 264 with Section 265
Remember:
264 = public servant's failure
265 = resistance / escape / rescue
Ultimate Memory Formula
SECTION 264
PUBLIC SERVANT
+
LEGAL DUTY TO APPREHEND / KEEP IN CONFINEMENT
+
CASE NOT OTHERWISE PROVIDED FOR
+
OMITS TO APPREHEND
OR
SUFFERS ESCAPE
+
INTENTION OR NEGLIGENCE
= SECTION 264
Punishment Memory
264(a) — INTENTIONAL = 3 YEARS
264(b) — NEGLIGENT = 2 YEARS SIMPLE
Rapid Comparison with Section 265
264
Public servant fails to apprehend or keep.
265
Person resists apprehension, escapes, or rescues another.
Memory
264 = CUSTODIAN'S FAILURE
265 = CUSTODY RESISTANCE / ESCAPE / RESCUE
Key Takeaway
Section 264 BNS punishes a public servant who is legally bound to apprehend a person or keep that person in confinement but, in a case not otherwise covered by Sections 259, 260, 261 or another applicable law, fails to perform that duty.
The section creates two levels of liability:
INTENTIONAL FAILURE — SECTION 264(a)
Up to 3 years / fine / both
and
NEGLIGENT FAILURE — SECTION 264(b)
Simple imprisonment up to 2 years / fine / both
According to the supplied comments:
Section 264 BNS = Section 225A IPC
and the substantive provision remains unchanged apart from updated BNS cross-references.
Final Memory Line
“PUBLIC SERVANT + DUTY TO CATCH OR KEEP + INTENTIONAL/NEGLIGENT FAILURE = 264”
