Whoever, except as hereinafter excepted, knowing or having reason to believe that an officer, soldier, sailor or airman, in the Army, Navy or Air Force of the Government of India, has deserted, harbours such officer, soldier, sailor or airman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both.
Exception.—This provision does not extend to the case in which the harbour is given by the spouse of the deserter.
Simplified Explanation
Section 164 of the Bharatiya Nyaya Sanhita (BNS) 2023 deals with the offense of harbouring a deserter from the Army, Navy, or Air Force of the Government of India. Specifically, it criminalizes the act of knowingly or reasonably believing that someone has deserted the military and then providing them shelter or assistance to avoid capture.
Key Elements of Section 164
- Harbouring:
- Harbouring refers to the act of providing refuge, shelter, or protection to someone who has deserted the armed forces. This could involve hiding the deserter, giving them a place to stay, or preventing authorities from locating them.
- The section criminalizes such behavior when it involves military personnel who have deserted, knowing or having reason to believe they have done so.
- Who is Covered:
- This provision applies to officers, soldiers, sailors, or airmen who are part of the Army, Navy, or Air Force of the Government of India.
- It targets individuals who assist a deserter—someone who leaves the military service without permission, typically with the intent not to return.
- Knowledge or Reason to Believe:
- The section states that the person offering shelter or harbour to a deserter must know or have reason to believe that the person they are assisting has deserted their post.
- This standard ensures that a person cannot be guilty unless they are aware of the desertion or have reason to believe it based on circumstances.
Punishments Prescribed
- Imprisonment (Up to 2 Years):
- The person who harbours a deserter can be punished with imprisonment for a term which may extend to two years. The type of imprisonment could either be simple or rigorous, depending on the case.
- Fine:
- The person may also be liable to a fine, which may be imposed alongside or in place of imprisonment.
- Both Imprisonment and Fine:
- The court may decide to impose both imprisonment and fine, depending on the severity of the offense and the specific circumstances.
Exception
- Spouse Exception:
- The section provides an exception where the spouse of the deserter is not punishable for harbouring the deserter. This exception acknowledges the familial bond and the possibility that a spouse may harbor the deserter out of emotional attachment, rather than a criminal intent to assist in desertion.
- This means that a husband or wife of the military member who has deserted the armed forces will not be penalized under this section for providing shelter or refuge to their spouse.
Purpose and Rationale
- Preventing Concealment of Deserters:
- Harbouring deserters undermines the authority and discipline of the armed forces. Section 164 aims to deter individuals from concealing military deserters, which could impede the military’s ability to maintain order and ensure readiness.
- Maintaining Military Discipline:
- By penalizing harbouring deserters, this section reinforces the importance of accountability and discipline within the armed forces and ensures that deserters are brought back to face appropriate consequences.
- Securing National Interests:
- Desertion can weaken the military’s strength and disrupt its operations. Preventing individuals from aiding deserters is essential for safeguarding national security and the operational effectiveness of the armed forces.
Comparison with Indian Penal Code (IPC), 1860
- IPC and Harbouring: The Indian Penal Code (IPC) also addresses offenses related to harboring criminals, such as in Section 212 (Harbouring a criminal). However, Section 164 of the BNS specifically targets military deserters, reflecting the unique nature of discipline and security within the armed forces. The distinction lies in the context of military service and the impact of desertion on national defense.
- IPC Section 216: Under Section 216 of the IPC, harboring a person who has committed a crime is punishable. Section 164, however, is unique in its focus on military desertion and emphasizes the national security implications.
Illustrations
- Example 1:
- A soldier deserts his post and seeks refuge in a civilian’s house. The civilian knows that the person is a deserter and hides them to avoid detection. The civilian would be guilty of harbouring the deserter under Section 164 and could face imprisonment and/or a fine.
- Example 2:
- A sailor deserts the Navy and his spouse, knowing his desertion, provides him with shelter. As per the exception, the spouse would not be penalized under Section 164, even though they are harboring the deserter.
- Example 3:
- A civilian is approached by a former airman who has deserted. The civilian provides the airman with shelter for a few days, knowing he has deserted the service. The civilian is liable to punishment under Section 164 for harboring the deserter.
Defenses
- Lack of Knowledge:
- The accused may claim that they did not know or have reason to believe that the person they were harbouring had deserted the military.
- Innocent Intent:
- The accused may argue that they were merely offering help without any knowledge of the desertion, or that they did not intend to help the person evade capture.
- Coercion or Duress:
- If the accused was under threat or duress (e.g., forced to harbor the deserter), they could potentially argue this as a defense.
Impact on Military and Governance
- Strengthening Military Security: Section 164 contributes to maintaining the operational readiness of the armed forces by ensuring that deserters are not allowed to hide, thus preventing the weakening of the military.
- Discouraging Harboring of Deserters: By making harboring deserters a punishable offense, the law discourages individuals from assisting military personnel in avoiding the consequences of desertion.
- Promoting Accountability: The section promotes accountability among civilians and the general public in their role in supporting national defense efforts, making it clear that harboring deserters is a serious offense.
Conclusion
Section 164 of the Bharatiya Nyaya Sanhita (BNS) 2023 criminalizes the act of harbouring a military deserter with penalties of imprisonment (up to two years), fine, or both. This provision helps maintain military discipline, prevents the concealment of deserters, and ensures that the integrity of the armed forces is upheld. The section acknowledges the special circumstance of a spouse harboring a deserter, exempting them from punishment. This provision plays a critical role in protecting national security and the operational capacity of the military.
