Ghulam Waris vs State of U.P.

R.C. Deo Sharma, J.—The only point involved in this criminal revision is as to whether a person can be said to be an ''offender'' for the purposes of Section 212 IPC unless some Court has recorded a finding of his guilt in respect of a particular offence. The applicant was charged for the offence u/s 212 IPC on the ground that he was harbouring one Nawab Ali who was wanted in a case u/s 302 IPC and this he was doing with the knowledge that the said Nawab Ali is so warned. The learned Magistrate who tried the case and the learned Additional Sessions Judge, who heard the appeal, have both held on facts that the said Nawab Ali was arrested from the house of the revisionist Ghulam Waris by Sub Inspector of Police who raided the house on receiving information of this fact. The revisionist was also arrested on the charge u/s 212 IPC. It is alleged that he was a medical practitioner and was providing food and shelter as also probably treatment to the accused of that case, namely, Nawab Ali. The revisionist was accordingly convicted and sentenced to undergo six months'' rigorous imprisonment and to pay a fine of Rs. 1000/- and in default to undergo further two months'' imprisonment. Feeling aggrieved, the revisionist has preferred this revision and the only point pressed before me is that Nawab Ali had not been adjudged to be an ''offender'' and, therefore, the prosecution and conviction of the revisionist was pre-mature as it could not be said that Nawab Ali was an ''offender''. Reliance has been placed by the revisionist''s learned Counsel on Kuriakose Chacko v. State 52 CriLJ 470. It was held in that case after referring to another decision of the Patna High Court that a person could not be said to be an ''offender'' unless he was found guilty of a particular offence, and, therefore, prosecution of a person who harbours such an ''offender'', was possible only after the said ''offender'' was found guilty. In that case it was considered proper on request that the trial may remain stayed till the alleged ''offender'' was found guilty in any one or more of the cases in which he was wanted. Learned Counsel for the State who was given time for the purpose ,has not been able to show anything to the contrary. It is true that one of the ingredients of the offence u/s 212 IPC is that the person who harbours an ''offender'', should know or should have reason to believe that he is an ''offender'' and such harbouring should be with the intention of screening such person from legal punishment but all the same the requirement is that a person whom he harbours, should be believed to be an ''offender'' and this character of the person can be proved only when he has been judicially found to be a person guilty of an offence. If he is ultimately acquitted or found innocent or falsely roped in, it cannot be said that the person who was harbouring the said ''offender'', was actually harbouring an ''offender'' within the meaning of Section 212.

In this view of the matter the revision petition succeeds. While, therefore, the conviction recorded is set aside, the case should be sent back to the Court of the Judicial Magistrate, Sandila, Hardoi where it shall remain pending and stayed till the case pending against Nawab Ali is disposed of. Depending upon the result of the said case of Nawab Ali the present case against the revisionist Ghulam Waris shall be tried afresh. It cannot be said how long the decision of the case against Nawab Ali will take and, therefore, the revisionist who will appear in the Court of the Judicial Magistrate, Sandila on 9th September, 1982, will remain on bail on his furnishing a personal bond to the satisfaction of the trial Court.