IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 11TH SEPTEMBER 2007 / 0TH BHADRA 1929 Crl.Rev.Pet.No. 3027 of 2007() ------------------------------ SC.1/2006 of SESSIONS COURT, ALAPPUZHA .................... REVN. PETITIONER: 11TH ACCUSED: ------------------------------- SUJITH, S/O.KALESAN, PUTHUPPARAMBU VEEDU, WARD NO.IX, PALLIPPURAM PANCHAYAT, CHERAI, KOCHI TALUK, ERNAKULAM. BY ADV. SRI.RAJIT SRI.RANJIT BABU RESPONDENTS: RESPONDENT/STATE: ------------------------------ STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR ( SRI.K.C.SANTHOSH KUMAR) THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/09/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B.KOSHY & K.HEMA,JJ. ----------------------------------------- CRL.R.P.NO. 3027 OF 20O7 ----------------------------------------- Dated this the 11th day of September, 2007 O R D E R Koshy, J. Doubting the correctness of the decision reported in Kuriakose Chacko v. State (1950 KLT 628), a learned Single Judge of this Court referred this Revision Petition before the Division Bench. Before going into the question of law involved in the above decision, we may consider the facts of the case. Petitioner is the 11th accused in SC.No.1 of 2006 of the Sessions Court, Alappuzha. Charge was framed against 12 accused on 6.8.2007 after their case was committed to the Sessions Court by the Magistrate's Court. In the charge sheet accused 1 to 4, 6 and 7 were charge sheeted for offences punishable under Section 302 IPC. Accused 5 and 8 to 13 were charge sheeted for the offence under Section 212 read with Section 34 IPC. This revision petition is filed by the 11th accused. In the charge sheet the allegations against 11th accused are mainly contained in paragraphs 32, 33 and 34 which are as follows: “32. Thirtysecondly, that you all A10, A11 and A12 knowingly that you all A1 to A4 and A6 and A7 committed the murder of Ramesh on 20.7.05 at 1.45 pm at a place 50 metres north to Kanichukulangara junction and with the intention of screening them from legal [Crl.R.P.3027/07] 2 punishment you all A10 to A12 in furtherance of the common intention harboured you A6 and A7 by concealing them from 2/9/05 to 5/9/05 and from 12/9/05 to 13/9/05 in Ordnance Factory Quarters No.5/589 in Aravamkodu Desom in Umathalai Village in Nilgiri District in Tamil Nadu in the occupation of Cw56 and thereby you A10 committed the offence punishable u/s.212 r/w sec.34 of the IPC and within my cognizance: 33. Thirtythirdly, that you all A5 and A11 knowingly that you all A1 to A4 and A6 and A7 committed the murder of Ramesh on 20/7/05 at 1.45 pm at a place 50 metres north to Kanichukulangara junction and with the intention of screening them from legal punishment you A5 and A11 in furtherance of the common intention harboured you all A3, A4, A6 and A7 by concealing them on 29/7/05 in the hotel “Shivas Pleasure Inn” at Ootty in the room taken on rent in the name of you A11 in that hotel and thereby you A11 committed the offence punishable u/s.212 r/w s. 34 of the IPC and within my cognizance. 34. Thirtyfourthly, that you all A10 to A12 knowingly that you all A1 to A4 and A6 and A7 committed the murder of Ramesh on 20/7/05 at 1.45 pm at a place 50 metres north to Kanichukulangara junction and with the intention of screening them from legal punishment you all A10 to A12 harboured you A6 and A7 by concealing them from 2/9/05 to 5/9/05 and from 12/9/05 to 13/9/05 in Ordnance Factory Quarters No.5/589 in Aravamkodu Desom in Umathalai Village in Nilgiri District in Tamil Nadu in the occupation of Cw56 and you A11 and A12 staying with them for four days from 3/9/05 in that quarters of Cw56 and thereby you A11 committed the offence punishable u/s.212 r/w sec. 34 of the IPC and within my cognizance:” 2. It was contended by the petitioner that a person can be charge sheeted under Section 212 only after the main accused has been convicted for the offence alleged against them. In other [Crl.R.P.3027/07] 3 words, charge can be filed under Section 212 only after the person who is alleged to have been harboured has been convicted. Secondly it was contended that Section 212 is an offence triable by the Magistrate and there is no necessity to try along with the main case before the Sessions Court. Thirdly it was contended that earlier when the police filed final report, that was accepted by the court. Thereafter a further enquiry was conducted as permissible under Section 173(8). Then only petitioner was arrayed as an accused for having committed the offence under Section 21`2. But it is the contention of the petitioner that except the statement of CW14, in the further investigation no material was found out and therefore filing of charge sheet against the petitioner is improper as there is no basis at all for charge sheeting him. Finally, it was contended that there is no prima facie case against the petitioner. Therefore, charge against the petitioner is liable to be set aside. On 18.8.2007, a Division Bench of this Court stayed the final judgment in S.C.No.1/2006 as against the petitioner, but, allowed the trial to be proceeded with. 3. Section 212 IPC reads as follows: “212. Harbouring offender.- Whenever an offence has been committed, whoever harbours or conceals a person whom he knows or has reason to believe to be the offender, with the intention of screening him from legal punishment; if a capital offence.- shall, if the offence is punishable with death, be punished with [Crl.R.P.3027/07] 4 imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; if punishable with imprisonment for life, or with imprisonment.- and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and if the offence is punishable with imprisonment with may extend to one year, and not to ten years, shall be punished with imprisonment of the description provided for the offence for a term which may extend to one- fourth part of the longest term of imprisonment provided for the offence, or with fine, or with both. “Offence” in this section includes any act committed at any place out of India, which, if committed in India, would be punishable under any of the following sections, namely, 302, 304, 382, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460; and every such act shall, for the purposes of this section, be deemed to be punishable as if the accused person had been guilty of it in India. Exception.- This provision shall not extend to any case in which the harbour or concealment is by the husband or wife of the offender.” 4. A plain reading of Section 212 of the Indian Penal Code would show that for convicting a person under section 212, the following essential ingredients must be established: (i) the offence must have been committed, i.e.,completed and there must be an 'offender'; (ii) there must be harbouring or [Crl.R.P.3027/07] 5 concealment of a person by the accused; (iii) the accused knows or has reason to believe that such harboured or concealed person is the offender; (iv) there must be an intention on the part of the accused to screen the offender from legal punishment. The first ingredient to be proved is that an offence has been committed. In other words, before convicting a person for committing an offence under Section 212 for harbouring or concealing, it must be proved that an offence has been committed. Upon proving the same, prosecution also should prove that there must be harbouring or concealing of the person known or has reason to believe to be the offender. It is a positive act. A mere help given to a person for absconding without any knowledge that he has committed a crime is not enough. The person accused of section 212 must harbour or conceal the person by providing his shelter or otherwise. He must have given shelter to him with knowledge that he is an offender or has reason to believe to be an offender. The word used is 'offender' and not 'accused' or a person convicted for that offence. The person who is sheltering or harbouring or concealing that person must have knowledge or has reason to believe that he is [Crl.R.P.3027/07] 6 the 'offender'. 5. Section 26 of the Indian Penal Code defines 'reason to believe' which reads as follows: “A person is said to have 'reason to believe' a thing, if he has sufficient cause to believe that thing but not otherwise.” So, the person accused of harbouring an offender must have a knowledge or must have reason to believe that the person harboured or concealed has committed an offence. The word 'harbour' as a noun ordinarily means ' a place to shelter ships from the violence of the sea, and where ships are brought for commercial purposes to load and unload goods. In criminal law, 'to harbour' means to give the offender a shelter. Section 52-A of IPC defines 'harbour' as follows: “Except in section 157, and in Section 130 in the case in which the harbour is given by the wife or husband of the person harboured, the word 'harbour' includes the supplying a person with shelter, food, drink, money, clothes, arms, ammunition or means or conveyance, or the assisting a person by any means, whether of the same kind as those enumerated in this section or not, to evade apprehension.” The word 'harbour' is defined as follows in Law Lexicon of P.Ramanatha Aiyer, Second edition: “In construing a statue making the [Crl.R.P.3027/07] 7 harbouring or concealing of an offender a crime, it was said that the word 'harbour' is defined by Worcester 'To entertain; to shelter; to rescue; to receive clandestinely and without lawful authority.' By Webster; 'To shelter; to rescue; to secure; to secrete, as to harbour a thief'. The word in statute only apply when the person is harbored or concealed with knowledge that he is an offender.” The word 'harbouring' is defined as follows: 'Harbouring' means a fraudulent concealment, and hence, where slaves or prisoners ran away, and were found in the possession of defendant, who openly maintained them, and gave notice to plaintiff that he would do so until they were recovered by law there was no harbouring.” The word 'to harbour' is defined as follows: “One harbours that which ought not to find room anywhere; one shelters that which cannot find security elsewhere; one lodges that which wants a resiting place. Thieves, traitors, conspirators, are harboured by those who have an interest in securing them from detection; either the wicked or the unfortunate may be sheltered from the evil with which they are threatened; travelers are lodged as occasion may require.” There should be a positive act by the person charged to harbour or [Crl.R.P.3027/07] 8 conceal an person whom he knows or has reason to believe to be the offender. 6. In Darch v. Weight [1984] 2 AII.E.R. 245], it was held that merely to assist or provide support would not be enough. He must have provided shelter in the sense of providing a refuge for an escape. The word 'conceal' means 'to hide or keep secret'. Concealing his presence is made mention in Section 109 of the Code of Criminal Procedure. Meaning of the words 'conceal' and 'presence' are very wide and they are sufficient to cover concealment of persons in a house or grove or under a bridge; but, are also sufficient to cover when a man conceals his appearance by wearing a mask or disuishing himself in some other manner (See:Kasinath v. Emperor – 1934 Allahabad 45). The person accused of an offence under section 212 should either harbour or conceal a person knowing or with the reason to believe that he is the offender. Further, to attract punishment, it is further to be proved that there was intention on the part of the accused to screen that offender from legal punishment. 7. In Kuriakose Chacko v. State (1950 KLT 628) petitioner was charged under section 207 of the Travancore Penal Code (corresponding Section 212 of IPC). The court held that the trial was premature as, in that case, the main offender, who was said to have harboured, was not convicted at that time and until the [Crl.R.P.3027/07] 9 offender has been convicted of the offence he is alleged to have committed, conviction cannot be made under section 207 of the Travancore Penal Code for harbouring the offender. The court followed the decision of the Patna High Court in Ram Raj Chaudhury v. Emperor (AIR 1946 Pat. 74). In that case, the court held as follows: “ 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 or harbouring him is clearly premature. The proper course would have been to hold up this case under [Crl.R.P.3027/07] 10 Section 212 until the conclusion of Jang Hahadur's trial, when it might have proceeded in the event of his conviction, but, obviously not otherwise.” It was held that, in such cases, trial of the case against a petitioner should be stayed until, at least, disposal of the case against the main accused. The above view was followed in Kuriakose Chacko v. State (1950 KLT 628). Patna High Court followed the Madras High Court decision in Palani Goudan v. Emperor (1937 M.W.N. 21). Charge was not quashed, but, the trial was only stayed awaiting the disposal of the case against the main accused. In Kuriakose Chacko's case and in the other case referred in this order, the accused was charged separately for harbouring person who has reason to believe to be an offender. The court held that only if 'offender' is concealed or harboured, case under section 212 can be established and, therefore, the trial has to be stayed till the main case is disposed of. The above view was taken by the Orissa High Court in Niranjan Ojha v. State of Orissa (1992 Crl.L.J.1863). The correctness of the view is doubted by the the learned Single Judge. 8.We have perused section 212 many times. It is not stated in section 212 that the person who was harboured or concealed should beconvicted, to attract the provisions of the section. What is to be proved is that the accused facing charges under Section 212 [Crl.R.P.3027/07] 11 conceals or harbours a person whom he has reason to believe that he is the offender notwithstanding the fact that main offender is not proceeded against by the police due to wrong identification or he was acquitted for any reason whatsoever. But, it should be proved that an offence has been committed. On the date and at the time of harbouring or concealment the accused must be aware i.e., know or reasonably believe that the person harboured or concealed is the offender. There is nothing in the section to indicate that a person can be convicted for offence under Section 212, only if the person harboured or concealed is “proved” to be an “offender” and he is convicted. The word “offender” is not defined under IPC. “Offender” as per the Dictionary, means “a person who has committed a crime or offence”. He is not a person who is convicted of an offence because there may be wrong convictions which may be set aside in appeal. There can be such wrong acquittals also. Hence, a person who is convicted or acquitted may be an offender, for the purpose of section 212, if the accused had the knowledge or reasonable belief that he has committed the offence. An offender is also not a person who is merely `accused' of an offence, because an accused may or may not be guilty or even innocent. Therefore, an “offender” for the purpose of Section 212 is neither a convict nor an accused, but he is a person who has actually committed the offence. [Crl.R.P.3027/07] 12 It is not because a person is held to be guilty of offence or convicted that he becomes an offender. Even an actual offender may be acquitted, if the prosecution fails to prove that he has committed an offence. An accused is deemed to be innocent unless he is found guilty. But, the failure of prosecution to prove the identity of the person who committed the offence does not render the person who committed the offence not an offender. He can only be said to be an offender whose guilt has not been proved in court. Yet, he is an offender, if he has committed an offence. Therefore, it is not the conviction or the acquittal which matters. But, it is the knowledge or the reasonable belief of the accused under Section 212 that the person whom, he has harboured or concealed to be the offender, which is relevant. But, such knowledge or belief must be entertained by the accused, on the date on which he commits the offence by harbouring or concealing him. 9. We also note that section 201 which deals with causing disappearance of evidence of an offence with the intention of screening the offender or with the intention of giving any opinion respecting the offence which he knows or believes to be false is more or less a comparable section and the matter came up for consideration before a Division Bench of this Court in Treesa v. State of Kerala (1991 (1) KLT 503). In that case, the accused was [Crl.R.P.3027/07] 13 alleged to have committed the offence under section 302 and 201 of the Indian Penal Code. The allegation was that accused murdered her husband and tried to screen herself by giving false information so as to appear that it is a suicide. The Trial Court found that it was not a suicide, but, a murder. In the house, the deceased and only a three year child and accused were staying and without her knowledge the murder would not have been committed. The trial court found that prosecution failed to prove the main offence under section 302 beyond reasonable doubt, but, ingredients of section 201 were satisfied. The accused filed an appeal contending that since the main offence was not proved and offender is not punished, she cannot be convicted under section 201 IPC for screening the offender. The court observed as follows: “One of the main contentions raised by the learned counsel for the accused is that no offence under S.201 of the I.P.C. can be found unless the court is able to hold that the main offence was committed by a particular individual. In Kalawati v. The State of Himachal Pradesh (AIR 1953 S.C. 131) it was held that acquittal of the accused is no impediment to convict him for the offence under S.201 of the I.P.C. That was a case in which a wife was charged for murder of her husband along with another person and the court acquitted her for murder, but convicted the other person for the main offence and then proceeded to consider whether the wife committed the offence under S.201 of the I.P.C. It was in the said background that the Supreme Court held that acquittal of the wife for the main offence is no legal impediment to convict her for the offence under S.201 of the IPC. A Division Bench of this Court has observed in [Crl.R.P.3027/07] 14 Mohammed v. State of Kerala (1988(2) KLJ 470) that “where there is cogent evidence that the accused caused evidence to disappear in order to screen another, known or unknown, the mere fact that he had been suspected or even tried and acquitted of the principal crime, would not by itself prevent his conviction under S.201 of the IPC.” Learned counsel canvassed for a reconsideration of the aforesaid observation that even without the offender remaining unknown the offence under S.201 can be found against a known accused charged with the offence. We do not think that there is any need for reconsideration of the aforesaid observation, particularly on the facts of this case. It may be that the identity of the main offender was not established through evidence of the case. It does not mean that the accused was unaware of the identity of the main offender.” We are of the opinion that similar view can be adopted while interpreting section 212 also. But, in order to establish the charge under section 201 or 212, it is essential to prove that an offence has been committed. The Division Bench also held as follows: “In Palvinder Kaur v. State of Punjab (AIR 1952 SC 354) Supreme Court held that in order to establish the charge under S.201 it is essential to prove that an offence has been committed and mere suspicion that it has been committed is not sufficient and that the accused know or had reason to believe that such offence had been committed and with the requisite knowledge and with intent to screen the offender from legal punishment causes evidence thereof to disappear or gives false information respecting such offences. The Supreme Court observed further that “it was essential in these circumstances for the prosecution to establish affirmatively that the death of the deceased was caused by the administration of pottassium cyanide by some person and that she had reason to believe that it was so caused and with that knowledge she took [Crl.R.P.3027/07] 15 took part in the concealment and disposal of the dead body.” Since the court was in doubt as to whether death of the deceased in that case was due to homicide or suicide, the court declined to convict the accused for the offence under S.201 of the IPC. Following the said observation, the Supreme Court has held in a later decision that the proof of the commission of an offence is an essential requisite for bringing home the offence under S.201 of the IPC (vide Suleman Rahiman v. State of Maharashtra - AIR 1968 SC 829). The position is made clearer in Roshan Lal v. State of Punjab (AIR 1965 SC 1413) in which the Supreme Court observed that the word “offence” wherever used in S.201 means some real offence, which, in fact, has been committed and not some offence which the accused imagines has been committed.” 10. The above decision was upheld by the Apex Court after detailed consideration in V.L. Tresa v. State of Kerala ((2001) 3 SCC 549). The Supreme Court has also held that having regard to the language used, mere suspicion would not be sufficient; there must be cogent evidence available on record that the accused has knowledge or has reason to believe that the offence has been committed. While commenting upon section 201, the Apex Court in Roshan Lal and others v. State of Punjab (AIR 1965 SC 1413)