Section 164 BNS: Harbouring Deserter
Section 164 of the Bharatiya Nyaya Sanhita, 2023 punishes a person who, 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 that deserter. The section also contains an express exception for harbouring by the deserter's spouse.
Text of Section 164, Bharatiya Nyaya Sanhita, 2023
164. 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.
Meaning of "Harbour" under the BNS
Section 2(13) BNS provides that "harbour" includes supplying a person with shelter, food, drink, money, clothes, arms, ammunition or means of conveyance, or assisting a person by any means, whether of the same kind or not, to evade apprehension.
The statutory definition is broad. Harbouring is therefore not limited to giving someone a room or physical shelter. Depending on the facts, financial help, transport, supplies or other assistance intended to help a deserter evade apprehension may fall within the definition.
Essential Ingredients of Section 164 BNS
- The person harboured must be an officer, soldier, sailor or airman in the Army, Navy or Air Force of the Government of India.
- That person must have deserted.
- The accused must know, or have reason to believe, that the person has deserted.
- The accused must harbour the deserter within the meaning of the BNS.
- The spouse exception must not apply.
Knowledge or Reason to Believe
Section 164 does not require only actual knowledge. Liability may also arise where the person has "reason to believe" that the officer, soldier, sailor or airman has deserted. Whether this requirement is established depends on the facts and evidence concerning what the accused knew and the circumstances from which the belief is alleged to arise.
Spouse Exception under Section 164
The provision expressly states that it does not extend to a case where the harbour is given by the spouse of the deserter. This is a statutory exception contained in Section 164 itself and should be distinguished from cases where a person other than the spouse provides assistance.
Punishment and BNSS Classification
| Provision | Section 164, Bharatiya Nyaya Sanhita, 2023 |
|---|---|
| Punishment | Imprisonment of either description for up to 2 years, or fine, or both |
| Cognizable | Yes |
| Bailable | Yes |
| Court competent to try | Any Magistrate |
Under the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023, an offence under Section 164 BNS is cognizable and bailable and is triable by any Magistrate.
Difference Between Sections 163 and 164 BNS
Section 163 BNS deals with abetment of desertion. Section 164 addresses a later and distinct form of conduct: harbouring a person who has deserted, with knowledge or reason to believe that the person has deserted. Both provisions prescribe imprisonment up to two years, or fine, or both, but the legal ingredients are different.
Related Provision: Section 165 BNS
Section 165 BNS deals with a deserter concealed on board a merchant vessel through negligence of the master or person in charge. Unlike Section 164, Section 165 specifically addresses negligent failure connected with a merchant vessel.
Corresponding Provision under the Indian Penal Code, 1860
Section 164 BNS broadly corresponds to Section 136 of the Indian Penal Code, 1860. One notable drafting change is that the BNS exception uses the gender-neutral term "spouse", whereas the earlier IPC provision referred to harbouring by a wife of her husband.
Commencement of the Bharatiya Nyaya Sanhita
The Bharatiya Nyaya Sanhita, 2023 is Central Act 45 of 2023. The Central Government appointed 1 July 2024 as the date on which its provisions came into force, except the separately excluded provision of Section 106(2) in the commencement notification.
Official Legal Resources
The enacted statute can be checked in the official Bharatiya Nyaya Sanhita, 2023 PDF on India Code. The commencement notification is available from the Ministry of Home Affairs. The procedural classification of Section 164 can be checked in the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023.