Offences Relating to the Army, Navy and Air Force

Section 168. Wearing any garb or carrying any token resembling that used by a soldier, sailor or airman, not being one, with the intention that it may be believed that he is: up to three months, or fine up to two thousand rupees, or both.

Broken down: the pattern of the abetment sections

Four of them come in pairs, and the second of each pair is heavier. Abetment of mutiny is section 159; abetment where mutiny follows is section 160. Abetment of assault on a superior officer is section 161; abetment where the assault follows is section 162.

That is the opposite of the general scheme. Under section 49 an abettor whose offence is committed gets the punishment for the offence, and under sections 55 and 56 an abettor whose offence is not committed gets a fraction of it. Here Parliament has written both cases out expressly with their own figures.

Section 160 is one of very few capital offences in the Sanhita. Abetment of mutiny, where mutiny follows, carries death. That measures how gravely the law treats an attack on the discipline of the armed forces.

Section 165 is unusual in creating liability without knowledge. The master of a merchant vessel is liable "though ignorant of such concealment", provided he might have known of it but for neglect of duty or want of discipline. It is a penalty rather than imprisonment, and it is capped at three thousand rupees.

Distinctions that carry marks

A worked example

A political organiser addresses soldiers outside a cantonment, urging them to refuse orders and to take over the depot.

Which section? Section 159 if nothing follows: abetting the committing of mutiny, or attempting to seduce servicemen from their allegiance or duty, punishable with imprisonment for life or up to ten years and fine.

Some of the soldiers mutiny. Now section 160 applies, because the mutiny was committed in consequence of the abetment, and the punishment extends to death.

Could the organiser be tried by a court martial? No. He is not subject to the service Acts, so service law does not reach him, and section 167 does not protect him because it protects only persons who are subject to those Acts.

Could the soldiers be tried under the Sanhita? No. They are subject to the Army Act, 1950, so section 167 takes them out of this Chapter, and they face a court martial.

A different case. Suppose a shopkeeper lets a man he knows to be a deserter sleep in his storeroom for a month. That is section 164, harbouring a deserter, up to two years, or fine, or both.

Another. Suppose a man buys a uniform and wears it at a public function so that people will believe he is an officer. That is section 168, three months, or two thousand rupees, or both. Note that the offence needs the intention that it be believed he is a serviceman; wearing military-style clothing as fashion is not within it.

Another. Suppose a deserter stows away on a cargo ship and the master, who did not know, is shown not to have kept a proper muster. Section 165 makes him liable to a penalty of up to three thousand rupees although he was ignorant of the concealment, because he might have known but for neglect of duty or want of discipline on board.

What beginners get wrong

Thinking this Chapter punishes soldiers. It does not. Section 167 excludes every person subject to the three service Acts from punishment under the Chapter.

Missing that section 160 carries death. It is one of a small number of capital provisions in the Sanhita and it is regularly overlooked.

Treating sections 159 and 160 as the same offence. They are distinguished only by whether mutiny followed, and that single fact is the difference between ten years and death.

Thinking section 168 punishes wearing a uniform. It punishes wearing a garb or carrying a token resembling a serviceman's with the intention that it be believed the wearer is one.

Limits and criticism

Death for abetment of mutiny is a very old measure of gravity. It was set at a time when the loyalty of the armed forces was the immediate guarantee of the State's survival, and the Sanhita re-enacted it without revisiting the question.

Section 165 imposes liability without knowledge, which the general criminal law avoids, and it does so in a section whose penalty has never been revised in real terms.

The Chapter has no provision for the modern equivalents of seduction from duty. Attempts to influence servicemen now happen through electronic communication, and nothing in the Chapter names it, though "attempts to seduce" in section 159 is wide enough to cover it.

Quick revision

Section 159. Abetting mutiny, or attempting to seduce a serviceman from allegiance or duty: life, or ten years, and fine.

Section 160. The same where mutiny is committed in consequence: death, life, or ten years, and fine.

Sections 161 and 162. Abetting an assault on a superior officer: three years; seven years if the assault follows.

Sections 163 and 164. Abetting desertion; harbouring a deserter: two years, or fine, or both.

Section 165. Master of a merchant vessel, deserter concealed on board: penalty up to three thousand rupees, even if ignorant, where he might have known but for neglect of duty or want of discipline.

Section 166. Abetting an act of insubordination, where committed in consequence: two years, or fine, or both.

Section 167. No person subject to the Air Force Act, 1950, the Army Act, 1950 or the Navy Act, 1957 is punishable under this Chapter.

Section 168. Wearing a serviceman's garb or token with intent to be believed one: three months, or two thousand rupees, or both.

Test yourself

1. Who is excluded from this Chapter, and by which provision? Every person subject to the Air Force Act, 1950, the Army Act, 1950 or the Navy Act, 1957, by section 167. They are dealt with under service law instead.

2. Which section of this Chapter carries the death penalty, and when? Section 160, abetment of mutiny by a serviceman, where mutiny is committed in consequence of the abetment.

3. Distinguish sections 161 and 162. Both punish abetting an assault by a serviceman on a superior officer in the execution of his office. Section 161 applies where the assault is not committed and carries three years; section 162 applies where it is committed in consequence and carries seven.

4. Can the master of a merchant vessel be liable although he did not know a deserter was on board? Yes. Section 165 makes him liable to a penalty of up to three thousand rupees though ignorant, if he might have known but for some neglect of his duty or some want of discipline on board the vessel.

5. What must be proved under section 168 besides the wearing of the garb? The intention that it may be believed that the wearer is a soldier, sailor or airman in the service of the Government of India.