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IPC 138

IPC Section 138 – Abetment of Act of Insubordination by Soldier, Sailor or Airman | Aapka Legal Advice
Section 138 · Indian Penal Code

IPC Section 138 – Abetment of Act of Insubordination by Soldier, Sailor or Airman

Section 138 of the Indian Penal Code dealt with abetment of act of insubordination by soldier, sailor or airman. The provision applied to conduct covered by its statutory requirements.

Subject: Abetment of Act of Insubordination
Legal Effect: See legal provision
Cognizable: Yes*
Bailable: Yes*
BNS 2023 Equivalent: Section 166
⚡

Quick Answer: What Does IPC Section 138 Mean?

IPC Section 138 dealt with knowingly abetting an act of insubordination by an officer, soldier, sailor or airman in the Army, Navy or Air Force of the Government of India, where the act was committed in consequence of that abetment.

Imprisonment up to 6 months, or fine, or both
The offence was historically classified as cognizable and bailable.
The offence was triable by Any Magistrate.
BNS Section 166 is the corresponding provision under the new criminal law.

What is IPC Section 138?

IPC Section 138 dealt with abetment of act of insubordination as set out in the statutory provision.

The provision addressed knowing assistance or encouragement of insubordination within the armed forces. The prosecution had to establish the abetment, the accused’s knowledge, and that the insubordinate act was committed in consequence of the abetment.

Example of IPC Section 138

For example, if a person knowingly instigates a soldier to commit an act of insubordination and that act is actually committed because of the instigation, the conduct may fall within Section 138, subject to proof of all statutory requirements.

Important Update: IPC to BNS Transition

The Indian Penal Code was repealed from 1 July 2024. For conduct governed by the new criminal law, the corresponding provision is BNS Section 166, with updated wording under the new criminal law.

Punishment Under IPC Section 138

IPC Section 138 prescribed imprisonment of either description for a term up to six months, or fine, or both. The offence was historically classified as cognizable and bailable and was triable by any Magistrate. Section 138

ProvisionLegal Position
IPC Section 138Abetment of an act of insubordination by an officer, soldier, sailor or airman, when the act is committed in consequence of the abetment
PunishmentImprisonment up to 6 months, or fine, or both
Classification*Cognizable and bailable
Trial*Any Magistrate
BNS equivalentSection 166

*Important: Historical classification under the IPC/CrPC. The IPC was repealed for new offences from 1 July 2024.

Key Ingredients / Essential Elements of IPC Section 138

1

Knowing the Act Is Insubordination

The accused must know that the conduct being abetted is an act of insubordination by an officer, soldier, sailor or airman.

2

Knowing Abetment

The accused must abet the act through instigation, assistance or another legally recognised form of abetment.

3

Act Is Committed

The act of insubordination must actually be committed.

4

Causal Connection

The act must be committed in consequence of the abetment.

Complainant / Accused in an IPC Section 138 Case

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If You Are the Complainant

  1. Provide details of the alleged abetment and the circumstances in which the insubordinate act occurred. Preserve documents, communications, witness details and other relevant evidence.
  2. Preserve lawful recordings, messages, CCTV details and other available evidence.
  3. Identify witnesses who saw the restraint or the circumstances surrounding it.
  4. Seek legal assistance to understand the appropriate complaint and remedy.
⚖️

If You Are Accused

  1. The accused should obtain legal advice promptly and preserve relevant documents or communications. The prosecution must prove knowledge, abetment and the resulting act.
  2. Examine whether the alleged restraint actually prevented movement beyond defined limits.
  3. Review whether there was any lawful authority or justification for the restraint.
  4. Preserve evidence showing the actual circumstances of the alleged confinement.

Why the Statutory Elements Matter

Section 138 required more than a vague allegation. The prosecution had to establish knowing abetment and that the act of insubordination was committed in consequence of that abetment.

Complaint & Process in an IPC Section 138 Case

STEP 1

Report the Alleged Conduct

Information about alleged abetment of insubordination could be reported under the applicable criminal procedure.

STEP 2

Investigation

Investigating authorities could collect documents, communications, witness statements and other relevant evidence.

STEP 3

Examine the Ingredients

The evidence is examined to determine whether the accused knowingly abetted the act and whether the act was committed in consequence of that abetment.

STEP 4

Court Proceedings

If the evidence supports the charge, the matter proceeds under the applicable criminal procedure. Historically, Section 138 was triable by any Magistrate.

Important Principles on IPC Section 138

Wrongful Restraint

Knowing Abetment Is Required

Section 138 applied to knowing abetment of an act of insubordination by an officer, soldier, sailor or airman.

Principle: The facts must show a restriction within defined boundaries, not merely an obstruction in one direction. The prosecution must establish knowledge of the nature of the act and the required form of abetment.
Illustration

The Act Must Be Committed

The provision required the act of insubordination to be committed in consequence of the abetment.

Principle: Physical barriers and threats can both be relevant to establishing confinement. A mere attempt to encourage insubordination without the resulting act does not satisfy the express condition of Section 138.
BNS Transition

Causal Connection Matters

The abetted act must occur in consequence of the abetment.

Principle: For conduct governed by the new criminal law, the corresponding BNS provisions should be considered. The prosecution must establish the connection between the accused’s conduct and the resulting act of insubordination.

Frequently Asked Questions on IPC Section 138

What is IPC Section 138?+
IPC Section 138 dealt with knowingly abetting an act of insubordination by an officer, soldier, sailor or airman, where the act was committed in consequence of the abetment.
What is the punishment under IPC Section 138?+
The punishment was imprisonment up to six months, or fine, or both.
Is IPC Section 138 cognizable?+
Yes. The offence was historically classified as cognizable.
Is IPC Section 138 bailable?+
Yes. It was historically classified as bailable.
Which court could try IPC Section 138?+
The offence was triable by any Magistrate.
What is the BNS equivalent of IPC Section 138?+
BNS Section 166 is the corresponding provision under the new criminal law.
Does IPC Section 138 still apply after 1 July 2024?+
For offences governed by the new criminal laws after 1 July 2024, BNS applies. IPC Section 138 remains relevant to conduct governed by the earlier law, subject to applicable transitional rules.
Why is knowledge important under IPC Section 138?+
The provision required the accused to know that the act being abetted was an act of insubordination.
Disclaimer: This page is provided for general legal information and educational purposes only. It does not constitute legal advice. Please verify the applicable law and facts of your case with a qualified advocate before taking any legal action.
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