Section 128 IPC: Public Servant Voluntarily Allowing State Prisoner or Prisoner of War to Escape
Section 128 of the Indian Penal Code, 1860 dealt with a public servant who, while having custody of a State prisoner or prisoner of war, voluntarily allowed that prisoner to escape from confinement. This article explains the provision as it stood immediately before the Bharatiya Nyaya Sanhita, 2023 came into force.
Text of Section 128 IPC
Public servant voluntarily allowing prisoner of State or war to escape.
Whoever, being a public servant and having the custody of any State prisoner or prisoner of war, voluntarily allows such prisoner to escape from any place in which such prisoner is confined, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Meaning and Scope of Section 128 IPC
Section 128 applied specifically to a public servant entrusted with custody of a State prisoner or a prisoner of war. The central element was that the public servant voluntarily allowed the prisoner to escape. The provision therefore addressed deliberate facilitation or permission of escape, rather than mere carelessness.
The expression public servant was defined in Section 21 IPC. For Section 128, the accused had to fall within the legal category of public servant and have custody of the relevant prisoner. The word voluntarily must be read with the IPC concept in Section 39, under which a person voluntarily causes an effect when the effect is caused by means by which the person intended to cause it, or by means which, at the time of employing them, the person knew or had reason to believe were likely to cause it.
Essential Ingredients
For liability under Section 128 IPC, the prosecution was required to establish the material elements of the offence, including:
- the accused was a public servant;
- the accused had custody of a State prisoner or prisoner of war;
- the prisoner was confined at a place from which escape occurred; and
- the accused voluntarily allowed the prisoner to escape.
The requirement of voluntary conduct is significant. Section 128 should therefore be distinguished from Section 129 IPC, which dealt with a public servant negligently suffering such a prisoner to escape.
Punishment under Section 128 IPC
| Offence | Public servant voluntarily allowing a State prisoner or prisoner of war to escape. |
|---|---|
| Punishment | Imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and fine. |
| Core mental element | The prisoner must have been voluntarily allowed to escape. |
Procedural Position under the CrPC Regime
Before the new criminal laws commenced, offences under the IPC were dealt with procedurally under the Code of Criminal Procedure, 1973. The classification and trial of an IPC offence were governed by the First Schedule to the CrPC together with the applicable procedural provisions. In any particular proceeding, the law applicable on the relevant date and the statutory saving or transitional provisions should be checked.
Section 128 and Section 129 IPC: Important Distinction
The two provisions addressed different degrees of responsibility. Section 128 concerned a public servant who voluntarily allowed the escape, whereas Section 129 concerned a public servant who negligently suffered such a prisoner to escape. The factual issue of deliberate conduct versus negligence was therefore central to identifying the applicable provision.
Related IPC Provisions
This provision formed part of the IPC chapter dealing with offences against the State. Nearby provisions included Section 127 IPC concerning receipt of property taken by war or depredation, Section 129 IPC concerning negligent escape, and Section 130 IPC concerning aiding escape, rescue or harbouring of such a prisoner.
Historical Amendment Note
Act 26 of 1955, section 117 and the Schedule substituted the words "imprisonment for life" for "transportation for life", with effect from 1 January 1956.
Note: This article explains Section 128 IPC in its pre-BNS setting. The applicable law in an individual case depends on the date of the alleged conduct, procedural stage, and relevant repeal and saving provisions.