IPC – OFFENCES AGAINST ARMY, NAVY, AND AIR FORCE – Part – 12
In this session we are going to discuss two chapters of IPC, Chapter VII- offence against army, Navy and Air force (Sections 131-140); and Chapter IX offences by or relating to public servants (Sections 161 to 171).
(1) OFFENCES AGAINST ARMY, NAVY, AND AIR FORCE
In fact, all personal of army are governed by the Army Act, 1950, all personal of air force are governed by the Air Force Act, 1950 and all personal of navy are governed by the Navy Act, 1957. Section 139 of IPC made it clear that no person subject to the Army Act, 1950, the Air Force Act, 1950 and the Navy Act, 1957, is subject to punishment under IPC for any of the offences defined in this Chapter (VII).
Therefore, it is clear that Chapter is applicable to a person who is not subject to the Army Act, 1950, the Air Force Act, 1950 and the Navy Act, 1957. There are some persons, who are in some kinds of service attached to army, navy and air force. This chapter is applicable to them or any of the persons who is not subject to the Army Act, 1950, the Air Force Act, 1950 and the Navy Act, 1957.
(1.1) ABETTING MUTINY OR ATTEMPTING TO SEDUCE
Sections 131 and 132 of IPC deals with this offence and made it offensive, if any person has abated mutiny or seduce a soldier, sailor or airman from his duty. On the other hand, section 37 of the Army Act, 1950, the Air Force Act, 1950 and the Navy Act, 1957 defines mutiny and made the person subject to that Act liable for the offence and jurisdiction is given to the Court Marshal to try such offence against a person subject to that Act.
According to section 37, any person subject to this Act who commits any of the following offences, that is to say, –
(a) Begins, incites, causes, or conspires with any other persons to cause, any mutiny in the military, naval or air forces of India or any forces co-operating therewith; or
(b) Joins in any such mutiny; or
(c) Being present at any such mutiny, does not use his utmost endeavours to suppress the same; or
(d) Knowing or having reason to believe in the existence of any such mutiny, or of any intention to commit such mutiny or any such conspiracy, does not, without delay, give information thereof to his commanding or other superior officer; or
(e) Endeavours to seduce any person in the military, naval or air forces of India from his duty or allegiance to the Union shall, on conviction by court-martial, be liable to suffer death or such less punishment as is in this Act mentioned.
Section 131 says that whoever abets the committing of mutiny by an officer, soldier, sailor or airman, in the Army, navy or Air Force of the Government of India or attempts to seduce any such officer, soldier, sailor or airman from his allegiance or his duty, shall be punished with imprisonment for life, or with imprisonment up to ten years, and fine.
Section 132 says that if mutiny is committed in consequence of abetment it shall be punished with death or with imprisonment for life, or imprisonment up to ten years, and fine.
An act may amount to an attempt to seduce when ‘A’, a publisher, published an article in his magazine purporting to be a letter from a sympathiser in Punjab calculated to seduce Sikh soldiers of the Indian Army to desist from their allegiance and their duty to the government of India, and ‘B’ abetted the same by printing the article in his press. Both ‘A’ and ‘B’ are guilty of abating and attempting to seduce soldiers under section 131 of IPC.
But, the section 131 is not applicable when a person tenders friendly advice to a sepoy or airman to give up his job for trade, or to sure his discharge to start a business.
(1.2) ABETMENT OF ASSAULT BY SOLDIER ON HIS SUPERIOR OFFICER
Section 133 of IPC makes abetment of assault by soldier, sailor or airman on his superior officer, when in execution of his office, as a specific offence. Under this section, only a person can charged who is not subject to any of three Acts applicable to armed forces.
It is punishable (i) if not committed – with imprisonment up to three years and fine; and (ii) if such assault be committed in consequence of that abetment be punished – with imprisonment up to seven years and fine.
On the other hand, any person who is subject to any of three Armed Forces legislations is punished under section 40 of their respective Act. Section 40 makes striking or threatening superior officer as a specific offence. It says that any person subject to this Act who commits any of the following offences, that is to say, –
(a) uses criminal force to, or assaults his superior officer; or
(b) uses threatening language to such officer; or
(c) uses insubordinate language to such officer;
shall, on conviction by court-martial,
If such officer is at the time in the execution of his office or, if the offence is committed on active service, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned; and
In other cases, be liable to suffer imprisonment up to ten years or such less punishment as is in this Act mentioned. In the case of an offence specified in cause (c), the imprisonment shall not exceed five years.
(1.3) ABETMENT OF DESERTION AND HARBOURING DESERTER
Sections 135 to 137 of IPC deal with offence of abetment of desertion or harbouring a deserter from armed forces. Section 135 made the abetment of desertion of officer, soldier, sailor or airman by any person who is not subject to Armed Forces Act. Section 136 imposes punishment for harbouring a deserter from defence. Section 137 made the negligent act of master who concealed a deserter on board merchant vessel.
According to section 135, whoever, abets the desertion of any officer, soldier, sailor or airman, in the Army, Navy or Air Force of the Government of India, shall be punished with imprisonment up to two years, or with fine, or with both.
According to section 136, whoever, except as hereinafter expected, 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 airman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. This provision does not extend to the case in which the harbour is given by a wife to her husband.
According to section 137, the master or person in charge of a merchant vessel, on board of which any deserter from the Army, Navy or Air force of the Government of India is concealed, shall, though ignorant of such concealment, be liable to a penalty not exceeding five hundred rupees, if he might have known of such concealment but for some neglect of his duty as such master or person in charge, or but for some want of discipline on board of the vessel.
On the other hand, section 38 of the Army Act, 1950, the Air Force Act, 1950 and the Navy Act, 1957 made a person liable for desertion and aiding desertion of a person in defence services and are subject to any of these Acts. Any person subject to the Act –
(a) who deserts or attempts to desert the service shall on conviction by court-martial –
(i) If he commits the offence on active service or when under orders for active service, be liable to suffer death or such less punishment as is in this Act mentioned; and
(ii) If he commits the offence under any circumstances, be liable to suffer imprisonment up to seven years or such less punishment as is in this Act mentioned.
(b) who knowingly harbours any such deserter shall, on conviction by court-martial, be liable to suffer imprisonment up to seven years or such less punishment as is in this Act mentioned.
(c) who, being cognizant of any desertion or attempt at desertion of a person subject to this Act, does not forthwith give notice to his own or some other superior officer or take any steps in his power to cause such person to be apprehended, shall, on conviction by court-martial, be liable to suffer imprisonment up to two years or such less punishment as is in this Act mentioned.
(1.4) ABETMENT OF ACT OF INSUBORDINATION BY SOLDIER
Another offence against army, navy and air force is abetment of act of insubordination by soldier, sailor or airman. As you know that discipline in defence is the most important than any other, therefore, act of insubordination is not acceptable at all.
Section 138 of IPC is applicable to a person other than a person subject to the Army Act, 1950, the Air Force Act, 1950 and the Navy Act, 1957. On the hand, section 42 of the Army Act, 1950, the Air Force Act, 1950 and the Navy Act, 1957 made a person liable who is subject to any of these Acts for insubordination and obstructions.
Section 138 says that whoever abets what he knows to be an act of insubordination by an officer, soldier, sailor or airman, in the Army, Navy or Air Force of the Government of India, shall, if such act of insubordination be committed in consequence of that abetment, be punished with imprisonment up to six months, or with fine, or with both.
Section 42 of the Army Act, 1950, the Air Force Act, 1950 and the Navy Act, 1957 says that aany person subject to the Act who commits any of the following offences, that is to say, –
(a) Being concerned in any quarrel, affray or disorder, refuses to obey any officer, though of inferior rank, who orders him into arrest, or uses criminal force to or assaults any such officer; or
(b) Uses criminal force to, or assaults any person, whether subject to this Act or not, in whose custody he is lawfully placed, and whether he is or is not his superior officer; or
(c) Resists an escort whose duty it is to apprehend him or to have him in charge; or
(d) Breaks out of barracks, camp or quarters; or
(e) Neglects to obey any general, local or other order; or
(f) Impedes the provost-marshal or any person lawfully acting on his behalf, or, when called upon, refuses to assist in the execution of his duty a provost-marshal or any person lawfully acting on his behalf-, or
(g) Uses criminal force to or assaults any person bringing provisions or supplies to the Forces;
Shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend, in the case of the offences specified in clauses (d) and (e) to two years, and in the case of the offences specified in the other clauses to ten years, or such less punishment as is in this Act mentioned.
(1.5) WEARING GARB OR CARRYING TOKEN USED BY SOLDIER
Section 140 makes wearing garb or carrying token used by soldier, sailor or airman as an offence. It says that whoever, not being a soldier, sailor or airman in the Military, Naval or Air service of the Government of India, wears any garb or carries any token resembling any garb or token used by such a soldier, sailor or airman with the intention that it may be believed that he is such a soldier, sailor or airman, shall be punished with imprisonment up to three months, or with fine up to Rs. 500, or with both.
This section punish the wearing of the dress of a soldier, sailor or airman with intend of inducing others to believe that the person is in defence services at that time. As far as the word ‘token’ is concerned, it is a badge on which details of defence personal is written, especially at the time of war. If, someone carries (used) such token is an offence under this section. Merely wearing a soldier’s garb without specific intention is no offence. Cast-off uniforms of soldiers are worn by many men. Actors put on different military uniforms.
(2) OFFENCES BY OR RELATING TO PUBLIC SERVANTS
Chapter IX of IPC deals with offences by or relating to public servants. It was consisting of sections 161 to 171. Sections 161-165A was dealing with offence of corruption by public servants. It was repealed by section 31 of the Prevention of Corruption Act, 1988 (49 or 1988), which you are going to read under deferent head of “the Prevention of Corruption Act, 1988”, so we are omitting here.
Section 166 deals with offence of disobeying law, with intent to cause injury to any person by public servant, section 166A make offence specially for the police officer if they do not writ FIR in case of sexual offence reported by complainant. Section 166B made misconduct of Medical Practitioner; if he is fail to provide treatment to victim of throwing acid or victim of sexual assault.
Section 167 made an act of public servant an offence if he is farming an incorrect document with criminal intention. Section 168 made conducts of a public servant if he unlawfully engaging himself in trade. Section 169 says that unlawfully buying or bidding for property by public servant is an offence.
Section 170 and section 171 are the offences against public servant. According to section 170 personating a public servant is an offence. On the other hand, section 171 made wearing garb or carrying token used by public servant with fraudulent intent is an offence.
(2.1) PUBLIC SERVANT DISOBEYING LAW
(2.1.1) DISOBEYING LAW, WITH INTENT TO CAUSE INJURY TO ANY PERSON
According to section 166, whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment up to one year, or with fine, or with both.
Illustration.- A, being an officer directed by law to take property in execution, in order to satisfy a decree pronounced in Z’s favour by a Court of Justice, knowingly disobeys that direction of law, with the knowledge that he is likely thereby to cause injury to Z. A has committed the offence defined in this section.
As the offences under Section 166 and 167 of IPC have a direct nexus with commission of a criminal misconduct on the part of a public servant, indisputably an order of sanction was pre-requisite before the learned Judicial Magistrate could issue summons upon the appellant. [1]
(2.1.2) DISOBEYING DIRECTIONS UNDER LAW (POLICE OFFICER)
Section 166A was inserted in IPC by section 3 of Criminal Law (Amendment) Act, 2013, which came into force with effect from 3rd February, 2013. The Act was intended to curb the sexual offence by inserted various provisions in IPC, Cr.P.C, Indian Evidence Act and the Protection of Children from Sexual Offence Act, 2012. According to section 166A, whoever, being a public servant,––
(a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter, or
(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or
(c) fails to record any information given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to cognizable offence punishable under section 326A, section 326B, section 354, section 354B, section 370, section 370A, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509,
shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine.
(2.1.3) PUNISHMENT FOR NON-TREATMENT OF VICTIM (MEDICAL PRACTITIONER)
Section 166B also was inserted in IPC by section 3 of Criminal Law (Amendment) Act, 2013. According to section 166B, whoever, being in charge of a hospital, public or private, whether run by the Central Government, the State Government, local bodies or any other person, contravenes the provisions of section 357C of the Code of Criminal Procedure, 1973, shall be punished with imprisonment up to one year or with fine or with both.
(2.2) PUBLIC SERVANT FARMING AN INCORRECT DOCUMENT
According to section 167, whoever, being a public servant, and being, as “such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record” in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment up to three years, or with fine, or with both.
To invoke this section the prosecution has to prove following that –
(i) the accused is a public servant,
(ii) who entrusted with the preparation of a document or electronic record
(iii) the document framed or translated by him is in an incorrect manner,
(iv) he does it knowingly.
(v) with intention or knowledge that it is likely to cause an injury.
To convict a person under this section there must be statutory duty for him to prepare the document in question and he must prepare it in the manner and with the intent as described above.[2]
Issuing of false certificate by the Public servant.- When a family is entitled to receive any fund from Government under any scheme, the public servant (in any capacity) issue a certificate which he knows false, is an offence under this section. In a similar case, the Madras High Court held that there is no evidence to show that the accused has furnished incorrect document with intent to cause injury to this appellant, which is ingredient of an offence under section 167. So, there is no document to show that the appellant is the wife of Chamudi who died. But Rajammal wife of Chamudi alone has received that amount. Moreover, the appellant has not preferred any petition for applying family welfare funds to prove that the respondent herein has given a false certificate facilitating Rajammal to receive Family welfare fund.[3] So the trial court has considered all these aspects in a proper perspective and came to the correct conclusion that respondent is not guilty under Sections 166, 167 and 170 IPC.
(2.3) PUBLIC SERVANT UNLAWFULLY ENGAGING IN TRADE
According to section 168, whoever, being a public servant, and being legally bound as such public servant not to engage in trade, engages in trade, shall be punished with simple imprisonment up to one year, or with fine, or with both.
It was submitted that this Section makes it amply clear that ‘private practice’ cannot be termed as ‘trade’, as accepting of ‘fee’, does not involve profit making which is an essential ingredient of the term ‘trade’.[4] The offence under Section 168 of the IPC cannot be held to have been made out against the government doctor even under Section 168 as the treatment of patients by a doctor cannot by itself be held to be engagement in a trade as the doctors’ duty to treat patients is in the discharge of his professional duty which cannot be held to be a ‘trade’.
Cases of unlawful engagement in trade by public servants can also be held to be made out under Section 168 of the IPC if the facts of a particular case indicate that besides professional discharge of duty by the doctor, he is indulging in trading activities of innumerable nature which is not expected of a medical professional like medical negligence, demand or accept amount in order to incur favour on the patients which would amount to illegal gratification. But if the medical professional has acted in a manner which is contrary only to the government instructions dehors any criminal activity or criminal negligence, the same would not constitute an offence either under section 168 of the IPC or a case of corruption under the Prevention of Corruption Act.[5]
(2.4) PUBLIC SERVANT UNLAWFULLY BUYING OR BIDDING FOR PROPERTY
According to section 169, whoever, being a public servant, and being legally bound as such public servant, not to purchase or bid for certain property, purchases or bids for that property, either in his own name or in the name of another, or jointly, or in shares with others, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both; and the property, if purchased, shall be confiscated.
It was held by Court that single transaction cannot be said to be indulged in trade. It is further contended that since no case under Section 168 IPC is made out against the accused-petitioner, the question of case under Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988, in the facts and circumstances of the case, does not arise.
(2.5) OFFENCES AGAINST PUBLIC SERVANT
There are basically two offences against public servants – under section 170 personating a public servant, and under section 171 wearing garb or carrying token used by public servant with fraudulent intent. These may be discussed as follows –
(2.5.1) PERSONATING A PUBLIC SERVANT
According to section 170 of IPC, whoever pretends to hold any particular office as a public servant, knowing that he does not hold such office or falsely personates any other person holding such office, and in such assumed character does or attempts to do any act under colour of such office, shall be punished with imprisonment up to two years, or with fine, or with both.
Personation alone is not sufficient to constitute the offence. It must be accompanied by some overt act or attempt to do such act on the part of the offenders.[6] When a person falsely personated himself as constable and under the colour of such pretended office collected fees from the villager he was held liable under this section.[7]
Where the accused posed as a police officer and in that garb looted certain articles from the complainant and the stolen articles, one police ballots and monogram were recovered from him, his conviction under this section held to be proper.[8]
(2.5.2) WEARING GRAB OR CARRYING TOKEN WITH FRAUDULENT INTENT
According to section 171 of IPC, whoever, not belonging to a certain class of public servants, wear any grab or carries any token resembling any grab or token used by that class of public servants, with the intention that it may be believed, or with the knowledge that it is likely to be believed, that he belongs to that class of public servants, shall be punished with imprisonment up to three months, or with fine up to Rs. 200, or with both.
The provisions will not be applicable in case of persons wearing garb or carrying token used by the public servant in case of films, or shows depicting the character and role a supposed officer.
SUMMARY OF OFFENCES BY OR AGAINST PUBLIC SERVANTS
| Offences | Punishment | Nature of offence |
| Corruption (161-165A) – repealed | Governed by Prevention of Corruption Act, 1988 | According to the Act |
| Disobedience of law [S.166] | SI one year SI/fine /both | Non-Cognizable- Bailable |
| Disobeying directions under Law [S.166A] | Imprisonment not less than 6 months – 2 years and fine | Cognizable- Bailable |
| Non-treatment of victim by medical practitioner [S.166B] | Imprisonment up to one year/ fine/both | Non-Cognizable- Bailable |
| Farming an incorrect document [S.167] | Imprisonment up to three years/ fine/both | Cognizable- Bailable |
| Unlawfully engaging in trade. [S.168] | Imprisonment up to one year/ fine/both | Non-Cognizable- Bailable |
| Unlawfully buying or bidding for property.[S.169] | Imprisonment up to two years/ fine/both and confiscation of property | Non-Cognizable- Bailable |
| Personating a public servant. [S.170] | Imprisonment up to two years/ fine/both | Cognizable- Non-Bailable |
| Wearing grab or carrying token with fraudulent intent. [S.171] | Imprisonment up to three months/ fine up to Rs. 200. | Non-Cognizable- Bailable |
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[1] P.K. Choudhury v. Commander, 48 BRTF (GREF), AIR 2008 SC 1937 : (2008) 13 SCC 229.
[2] Shankar Rao Mohile, AIR 1952 Bom 196.
[3] Chinnamalli v. Natarajan, Crl.A.No.1777 of 2002, 4th February, 2010, Madras High Court.
[4] State of Gujarat v. Maheshkumar Dheerajlal Thakkar, AIR 1980 SC 1167.
[5] Kanwarjit Singh Kakkar v. State of Punjab, Cr.A.No. 1041/2011, decided by the SC on 28 April, 2011.
[6] Sukhdev Pathak v. Emperor, AIR 1918 Pat 653.
[7] Laxminarayan Tripathi v. Emperor, AIR 1943 Pat 378.
[8] Karuna Krishna Biswas v. State of west Bengal, 1996 CriLJ 2823 (Cal).