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IPC 1860REPEALED
Section 128
Public Servant Voluntarily Allowing Prisoner of State or War to Escape
Replaced by: BNS 261
Non-BailableCognizable: CognizableCourt of Session
THE STATUTE
Original Text
Whoever, being a public servant and having the custody of any prisoner of state 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.
Simplified
Section 128 imposes the severest sanction — life imprisonment — on public servants who voluntarily allow prisoners of state or prisoners of war to escape. The distinction between this section and ordinary prisoner escape provisions (Sections 223 and 225A) is the class of prisoner: 'prisoners of state' (persons confined for political or state security reasons) and 'prisoners of war' (enemy combatants captured in armed conflict) represent matters of national security and international law obligation. A custodian who allows such a prisoner to escape commits not merely a dereliction of duty but a potential act of treason or international law violation. The life imprisonment maximum — identical to many murder provisions — reflects the gravity of compromising national security through custodial negligence or treachery. The word 'voluntarily' distinguishes this from negligent escapes, which are covered by Section 129.
Legal Evolution
Sections 128–130 form a cluster addressing custody of prisoners of state and war — provisions with heightened national security implications. These provisions reflect both domestic security concerns and India's obligations under the Geneva Conventions regarding prisoners of war.
Practical Scenarios
"A prison superintendent who deliberately unlocks the cell of a prisoner of state and looks away — Section 128, life imprisonment."
"A guard who accepts a bribe to allow a prisoner of war to slip away — Section 128."
Common Queries
A prisoner of state is a person confined for political or state security reasons — such as a person detained under national security laws. A prisoner of war is an enemy combatant captured during armed conflict, whose treatment is governed by the Geneva Conventions. Both categories are accorded heightened custodial protection under Sections 128–130.
Section 129 covers negligent escapes — where the public servant negligently allows the prisoner to escape without intentional facilitation. The punishment is significantly less: up to 3 years or fine.