📘 Section 136 – Committing or Confining a Person to Prevent Them from Bringing a Charge Against a Public Servant

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📘 Section 136 – Committing or Confining a Person to Prevent Them from Bringing a Charge Against a Public Servant

Under the Bharatiya Nyaya Sanhita (BNS), 2023

🧭 Introduction

In any just society, public servants are expected to perform their duties with honesty and accountability. But what happens when someone tries to misuse state machinery to protect a corrupt or criminal public servant? Section 136 of the Bharatiya Nyaya Sanhita (BNS), 2023, addresses this critical concern.

This section criminalizes the wrongful commitment or confinement of a person, with the intention of stopping them from filing a complaint or taking legal action against a public servant. It’s a strong statement that no one, not even the powerful, should be protected from justice through unlawful means.

🔍 Bare Text of Section 136

"Whoever, being in any office which gives him legal authority to commit persons for trial or to confinement, or to keep persons in confinement, knowingly commits or confines any person with the intent to prevent, or knowing that it is likely to prevent, such person from bringing or prosecuting a charge against a public servant, shall be punished..."

🎯 Objective of Section 136

This law is designed to:

  • Prevent abuse of power by legal authorities.

  • Protect whistle-blowers and complainants from being silenced through confinement.

  • Maintain the independence of criminal justice.

  • Ensure public servants are not shielded by misuse of legal power.

🧱 Essential Elements of the Offence

To invoke Section 136, these four elements must be present:

  1. The Accused Has Legal Authority

    • The person is in a role that allows them to commit or confine others (e.g., magistrate, police officer, jail official).

  2. They Commit or Confine a Person

    • The person uses this authority to physically commit or confine someone.

  3. There’s a Connection to a Public Servant

    • The person being confined intended to file or pursue a charge against a public servant.

  4. The Intention or Knowledge

    • The accused acted with the intent to stop the person from taking legal action, or knew that it was likely to have that effect.

💡 Examples and Scenarios

✅ Valid Example under Section 136:

A citizen files a corruption complaint against a local police inspector. The inspector then uses influence over a local magistrate to have the complainant wrongfully arrested in a fabricated theft case. The magistrate, aware of the complaint, signs the warrant to protect the inspector.

✅ Both the inspector and the magistrate may be liable under Section 136.

📜 Punishment

The punishment for violating Section 136 is:

  • Imprisonment up to 7 years, and

  • Fine

It is a cognizable, non-bailable offence due to its grave impact on justice and whistle-blower protection.

🛑 Nature of the Offence

Feature Description
Cognizable Yes
Bailable No
Triable by Sessions Court
Prior Sanction Needed Yes, for judicial/magisterial roles

⚖️ Legal Context – IPC Reference

This provision replaces and updates Section 220A (proposed but not implemented) under the IPC. The Bharatiya Nyaya Sanhita codifies this protection in a more structured way, showing India’s growing emphasis on anti-corruption frameworks.

🏛️ Constitution and Human Rights Link

Section 136 upholds several key constitutional guarantees:

  • Article 21 – Right to liberty and life

  • Article 14 – Equality before law, even for public servants

  • Article 19(1)(a) – Freedom of speech, including right to complain

This provision ensures that the power of confinement cannot be misused to shield wrongdoers.

📚 Related Case Laws

🔹 S.N. Sharma v. Bipen Kumar Tiwari (AIR 1970 SC 786)

The Court stressed that public servants must remain accountable and cannot use their power to avoid investigation or charges.

🔹 Anuradha Bhasin v. Union of India (2020)

The Court reaffirmed that any suppression of lawful rights through state action is unconstitutional, including wrongful confinement.

⚠️ Challenges in Implementation

Despite the legal protection, victims often face:

  • Influence of high-ranking officials in local police/magistracy

  • Delay in sanction for prosecution of judicial officers

  • Fear of retaliation among complainants

That's why strong judicial review and media/public oversight are essential.

🔁 Differentiation from Section 135

Section Focus Offender Target
135 General illegal confinement by authority Magistrate, Judge, Officer Any person
136 Confinement to prevent action against a public servant Authority figure with motive Whistle-blowers, complainants

🧾 Case Study: Political Retaliation

Facts: A village sarpanch accuses the local MLA of embezzlement. Before the case can be registered, the sarpanch is booked in a trumped-up assault case and detained by police under magisterial orders.

Investigation reveals the confinement was politically motivated, and the magistrate had acted under pressure.

Outcome: Both the police inspector and the magistrate are prosecuted under Section 136 of BNS.

🌐 Comparative International Provisions

Country Law Protecting Complainants
USA Whistleblower Protection Act + 42 USC §1983
UK Public Interest Disclosure Act (PIDA)
Australia Public Interest Disclosure Act 2013
India Section 136 BNS + Whistleblower Protection Act (pending enforcement)

India is among few countries with specific penal provisions for punishing wrongful confinement of whistle-blowers.

✅ Lawful Procedure to Be Followed

Authorities should ensure:

  1. Complaint is not retaliatory or politically motivated.

  2. All charges are backed by FIR and investigation.

  3. Accused is given opportunity of legal representation.

  4. Public servant being protected is not influencing the process.

Violation of these can invoke Section 136.

🔐 Protection Mechanism

To prevent abuse of Section 136:

  • Authorities must record reasons for arrest/detention in writing.

  • Public servants must recuse themselves from cases involving potential conflict of interest.

  • Judicial orders must be reasoned and publicly accessible.

📊 Summary Table

Parameter Details
Section 136 BNS
Offence Illegal confinement to prevent action against a public servant
Punishment 7 years + fine
Bailable No
Cognizable Yes
Applicable To Officers with legal authority
Victim Whistle-blower or complainant
Key Requirement Knowledge or intention to obstruct justice

🗣️ Role of Lawyers and Judiciary

  • Defense Lawyers must verify the legality of confinement of clients involved in public servant complaints.

  • Prosecutors can invoke Section 136 against judicial/police misuse.

  • Courts must demand strong justification for arrests, especially if complainants are involved.

📘 Recommendations for Effective Enforcement

  1. Awareness programs on rights of complainants.

  2. Protection laws for whistle-blowers should be strengthened.

  3. Judicial training to identify politically motivated or retaliatory actions.

  4. Public watchdog mechanisms like Lokayuktas should actively monitor such cases.

🧭 Final Thoughts

Section 136 of the BNS, 2023, is a progressive legal provision that closes a crucial loophole in criminal justice—that of retaliation against complainants through abuse of state power. It reinforces the message that justice must be fair, fearless, and free from political or institutional pressure.

By holding even high-ranking officials accountable, the provision builds public trust in legal systems and encourages the exposure of corruption and abuse in public offices.

📌 What’s Next?

➡️ Next Blog: Section 137 – Public Servant Framing Incorrect Record to Save a Person from Punishment

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