Ram Raj Chaudhury and Another vs Emperor

Fazl Ali, C.J.—The petitioners have been convicted u/s 212, Penal Code, and sentenced to one year''s rigorous imprisonment on a charge of harbouring one Prithvi Ahir, who is said to have been concerned in a serious dacoity committed in July 1942, with the intention of screening him from legal punishment. Prom the judgments of the Courts below, it appears that the Sub-Inspector in charge of Nawanagar police-station, having received confidential information that Prithvi Ahir was concealing himself in village Barasar, proceeded to that village, and at about 2 A.M. he found Prithvi Ahir and three others including the two petitioners sleeping in a marai in front of the house of the accused.

According to the prosecution, the marai belonged to the petitioners, and, though the evidence on the point is not conclusive, it may for the purpose of deciding this application be assumed that the petitioners were its owners. The crucial question in this case is whether the petitioners knew or had reason to believe that Prithvi had committed an offence of dacoity. Neither of the Courts below has referred to any direct evidence on this point, but they have merely inferred from certain circumstances that the petitioners must have known that Prithvi was concerned in the alleged dacoity.

The learned Sessions Judge in dealing with this matter observes:

This man Prithvi, it appears, belongs to Shah-pur jurisdiction, but it can hardly be supposed from the place and circumstances in which he was arrested that the accused were unaware of his identity or antecedents. The evidence is that both the appellants were found sleeping along with Prithvi and Joga Kandu in the same marai. It is inconceivable that Prithvi would thus have been sheltered by the accused in their marai if he was merely a stranger to them; and there can be no doubt, in my opinion, in all these circumstances that the appellants knew that he was a proclaimed absconder and had knowingly harboured him in "their marai."

The learned Sessions Judge has put the prosecution case at its highest but, in my opinion, the circumstances referred to by him do not conclusively show that the petitioners knew, or had reason to believe that Prithvi had committed a dacoity. It has been pointed out in a number of cases that Section 212 applies to the harbouring of persons who have actually committed an offence, and it does not apply to the harbouring of persons not being criminals, who merely abscond to avoid or delay a judicial investigation. There is really no clear evidence to show that the petitioners knew that Prithvi was a proclaimed absconder. But even if they did, it does not follow that they knew that he had in fact committed an offence of dacoity. The point which arises in this case arose in another case in this Court, which related to the conviction of one Jang Bahadur; and Meredith J. dealt with it in this way:

There is another aspect of the case which has been lost sight of by the Courts below. The prosecution was premature. Section 212 says nothing about the harbouring of an absconder or an accused person. It renders punishable only the harbouring of a person when it is known or there is reason to believe that he is the offender. The first thing to be proved in a case under this section is that an offence has been committed by the person harboured. Jang Bahadur''s trial, however, has not yet been concluded. Until actually convicted, he is, like every one else, entitled to the presumption that he is innocent. Only the Court can say in due course whether he is actually an offender or not. The Court has not yet said that; and until the Court has pronounced upon the fact, a prosecution for harbouring him is clearly premature. The proper course would have been to hold up this case u/s 212 until the conclusion of Jang Bahadur''s trial, when it might have proceeded in the event of his conviction, but obviously not otherwise.

I am clearly of the opinion that this conviction cannot be supported, and I would, therefore, allow this application and set aside the conviction and sentence of the petitioners.

Ray, J.

I agree.