In Re: A.S. Subramanya Ayyar and Others

Yahya Ali, J.—The case brought against the petitioners as gathered from a part of the charge sheet filed in this case is that they committed

an offence u/s 216-A, Indian Penal Code. The allegation against them is that, knowing full well that four persons mentioned in the charge sheet had

all, along with others committed dacoity on the night of 11th February, 1946, at Tirupati''by forcibly removing the cinema amplifier from police

custody and that a case of dacoity had been registered against them and that they were wanted in that case, they harboured those four persons

from 16th February, 1946, to March 1946 with food, shelter and money at Tirupati with the intention of screening them from punishment and to

make them evade apprehension in P.R. Case Nos. 4 and 5 of 1946. The four persons mentioned in the charge sheet as the individuals who were

harboured by the petitioners were tried along with others for offences under Sections 395 and 353, Indian Penal Code. The Magistrate who tried

them found that there was no evidence on record to justify the case being placed before the jury against any of the accused therein with regard to

either of the offence of dacoity or the offence of assaulting a public servant and that there were no grounds to commit the accused to take their trial

in the Court of Session. He directed the discharge of the accused persons. The result of the discharge is that the four persons cited as P. Ws. 1 to

4 in the charge sheet in the present case and who are stated to have committed dacoity, and in respect thereof harboured by the petitioners have

been by a judicial order which has become final absolved altogether from any liability in respect of the alleged crime of dacoity.

The question raised upon these facts by Mr. Rangaswami Ayyangar on behalf of the petitioners is that in view of the discharge of the four

persons, who were stated to have been harboured by the petitioners, of the offeree of dacoity the prosecution of the petitioners u/s 216-A, Indian

Penal Code, is untenable. Section 216-A reads thus so far as is material to the present case:

Whoever knowing or having reason to believe that any persons have recently committed dacoity harbours them or any of them with the intention of

screening them or any of them from punishment shall be punished with rigorous imprisonment for a term which way extend to seven years.

The contention of the learned Counsel is that the intention to screen certain persons from punishment in respect of an offence of dacoity actually

committed by them is the essential ingredient of Section 216-A and no person can be prosecuted in the absence of a proof of the existence of such

intention. When however in law no offence of dacoity has been committed by the persons to whom shelter was given there is no question of

harbouring them within the meaning of Section 216-A.

The question raised is one of first impressions and though there are a number of decisions bearing upon other similar sections of the Indian Penal

Code, the nearest decision bearing upon the point under consideration is the case decided by a Bench of this Court in Queen-Empress v.

Swaminatha (1890) 1 M.L.J. 163 : ILR 14 Mad. 400. That case dealt with an offence u/s 214, Indian Penal Code, of offering gift or restoration of

property in consideration of screening an offender. The language employed in Section 214 bears close resemblance to the language of Section

216-A where also the intention postulated is the intention of screening any person from legal purishment for any offence. Muthuswami Ayyar and

Parker, JJ., held in that case that if the main offender had been acquitted of the offences of house-breaking and theft and he was not liable to legal

punishment there was no question of Section 214 coming into play in the matter of offering a gift, etc., in consideration of screening such a person

from legal punishment for that offence. The learned Judges observed:

It is contended that it is not necessary that an offence should be actually committed, or that the person charged should be really liable to be

punished for such offence. We do not, however, think that it was the intention of the legislature to punish the giving of gratifications, under a

delusion that an offence had been committed or that a person was guilty of such an offence. The words '' concealing an offence '' and ''screening

any person from legal punishment for any offence '' appear to us to pre-suppose the actual commission of an offence, or the guilt of the person

screened from punishment.

A recent decision of this Court decided by a single Judge, Curgenven, J., in Rangaswami Goundan, In Re: Rangaswami Goundan, dealt with a

case that arose u/s 216 of the Indian Penal Code. That section deals with harbouring an offender who escaped from custody and whose

apprehension has been ordered. The requirements of that section are that an order of apprehension should have been issued and the person who

was harbouring knew of the existence of such an order for the apprehension and with that knowledge concealed that person with the insertion of

preventing him from being apprehended. It would be seen that the language and elements of Section 216 are radically different from those of

Section 216-A. The learned Judge had this particular distinction clearly in his mind in referring to several cases that arose under various sections of

the Penal Code, namely, Sections 201, 203, 212, 213 and 214. He pointed out that in the case of each of these sections, the nature of the offence

rightly construed requires that the person in respect of whom it was committed had himself committed the offence. He also pointed out that the

same must be held good with regard to Section 214, Indian Penal Code, which renfders punishable the screening of a person from any offence. He

then observed:

It is clear that no person can be screened from legal punishment for an offence, if he has not rendered himself liable to it by his conduct.

Having regard to this principle and the clear distinction that exists between the language of those other sections and Section 216 which the

learned Judge was considering in that case he was of the opinion that the requirements of Section 216 were satisfied if it was shown that there was

an order of apprehension in force which the person harbouring knew when harbouring the person and he did that act for the purpose of preventing

him from being apprehended. There are decisions of other High Courts on the same lines which it is unnecessary to advert to here. The principle

applicable to such cases is to my mind perfectly clear that when a person charged with the substantive offence of dacoity or robbery has been

acquitted of that offence, another person who is said to have intended to screen him from legal punishment in respect of that offence cannot be held

guilty of harbouring the alleged offender u/s 216-A, Indian Penal Code.

The proceedings in C.C. No. 163 of 1946 on the file of the Additional First Class Magistrate against the petitioners are quashed.