What is IPC Section 328?
IPC Section 328 punishes administering to, or causing to be taken by, any person any poison or any stupefying, intoxicating, or unwholesome drug or other thing, with intent to cause hurt to that person, or with intent to commit or facilitate the commission of an offence, or knowing it to be likely that hurt will thereby be caused. The provision covers a broad range of substances beyond conventional poison, including sedatives, alcohol used to incapacitate, or any unwholesome substance capable of causing hurt.
Section 328 sits within Chapter XVI of the IPC ("Of Offences Affecting the Human Body"), within the sub-group dealing with hurt (Sections 319 to 338). It is one of the more serious hurt-related offences given its focus on covert or deceptive means of harming a victim, and is frequently charged in conjunction with other offences — such as theft, robbery, or sexual offences — that the accused intended to facilitate by first incapacitating the victim. The Supreme Court, in Joseph Kurian Philip Jose v. State of Kerala, laid down the specific ingredients the prosecution must establish for a conviction under this section.
Important Update: IPC to BNS Transition
With effect from 1 July 2024, the Indian Penal Code has been replaced by the Bharatiya Nyaya Sanhita (BNS), 2023 for offences committed on or after that date. Section 328 IPC now corresponds to Section 123 of the BNS, which retains the identical definition and punishment. FIRs registered before 1 July 2024 continue to be tried under IPC 328; incidents after that date are registered under the corresponding BNS provision.
Legal Provision — Text of Section 328 IPC
Punishment Under Section 328
| Imprisonment | Up to 10 years (simple or rigorous) |
|---|---|
| Fine | Liable to fine, in addition to imprisonment |
| Nature of Offence | Cognizable — police can register an FIR and investigate/arrest without a warrant |
| Bailable / Non-Bailable | Non-Bailable — bail must be sought from the Sessions Court or higher |
| Compoundable | Not compoundable — the case cannot be withdrawn or settled directly between the parties |
| Triable By | Court of Session |
| Often Charged Alongside | Theft (Section 379), robbery (Sections 392–394), or sexual offences, where the poisoning was used to facilitate those crimes |
Key Ingredients / Essential Elements
Administering or causing a person to take a substance
The accused must have administered, or caused another person to take, poison or a stupefying, intoxicating, or unwholesome drug or other thing.
Intent to cause hurt to that person
The substance must have been administered with the intention of causing hurt to the victim.
Alternatively, intent to commit or facilitate another offence
The substance may instead have been administered with intent to commit, or facilitate the commission of, a further offence — such as theft or robbery — while the victim is incapacitated.
Knowledge that hurt is likely, where intent is not directly proven
Where specific intent to cause hurt cannot be shown, it is sufficient that the accused knew it to be likely that hurt would result from administering the substance.
What Should You Do — For Complainants and For the Accused
If You Have Been Poisoned or Drugged
- Seek immediate medical attention — timely medical examination is critical both for your health and to establish evidence of the substance administered.
- File an FIR as soon as possible, since being cognizable, the police must register the complaint and begin investigation.
- Preserve any remaining food, drink, or containers that may have contained the substance, as these can be crucial forensic evidence.
If a Complaint Is Filed Against You
- Since the offence is non-bailable, bail must be sought through a formal application before the Sessions Court, or anticipatory bail if arrest is apprehended.
- A key defence is to challenge whether the substance in question genuinely qualifies as poison, or a stupefying, intoxicating, or unwholesome drug, and whether the requisite intent or knowledge is established.
- Engage a criminal lawyer promptly given the serious, non-bailable nature of the charge and the Sessions Court trial.
FIR & Bail Process Under Section 328
Filing the FIR
Being cognizable, the police are obligated to register an FIR upon receiving information about the offence and begin investigation immediately.
Medical & Forensic Examination
Medical examination and forensic/toxicological testing are conducted to identify the substance administered and its effects.
Bail
Being non-bailable, the accused must apply for regular or anticipatory bail before the Sessions Court or High Court.
Trial
Since the offence is triable exclusively by the Court of Session and non-compoundable, the case proceeds to a full trial before that court.
Important / Landmark Cases on Section 328
Joseph Kurian Philip Jose v. State of Kerala
The Supreme Court articulated the essential ingredients that the prosecution must prove to secure a conviction under Section 328 IPC, including that the substance administered was indeed a poison, or a stupefying, intoxicating, or unwholesome drug or thing, and that it was administered with the requisite intent or knowledge specified in the section.
Frequently Charged With the Facilitated Offence
Courts have recognised that Section 328 is commonly charged alongside the substantive offence the poisoning was intended to facilitate — such as theft or robbery — since the poisoning itself is often merely a means to accomplish the underlying crime.