IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1290 of 2010 1. BIRENDRA TIWARY, SON OF LATE VISHWANATH TIWARY, RESIDENT OF VILLAGE BABA NAGAR, P.S. VISHNUPURI, DISTRICT BUXAR. 2. BIRENDRA PRADHAN, SON OF LATE GOURI SHANKAR PRADHAN, RESIDENT OF DORANDA, P.S. DORANDA, DISTRICT RANCHI. ----- PETITIONERS Versus THE STATE OF BIHAR ----- OPPOSITE PARTY 2 02.02.2010 Heard the parties. This application has been filed for quashing the order dated 2.1.2010, passed by the Chief Judicial Magistrate, Buxar in G.R. No. 1208 of 2003 arising out of Buxar Town P.S. Case No. 219 of 2003 by which cognizance has been taken against the petitioners under Section 216/34 of the Indian Penal Code. The argument advanced in this case is that no offence is made out under Section 216 of the Indian Penal Code as far as it concerns the petitioners. Satyam Tiwary, who later took the defence that he was a juvenile, is to be tried for the murder of Shivji Prasad Verma. The allegations against these petitioners are that they conspired to allow the main accused person to avoid arrest by getting him admitted in Kanke hospital at Ranchi (Jharkhand) by declaring him to be mentally unstable. The argument on behalf of the petitioners is that, the act of admitting the main accused in hospital was bonafide, inasmuch the boy has been found to be mentally unstable. This aspect of the matter is a question which will require proof during trial, if such an issue is raised on behalf of the persons accused and cannot be considered at this stage for the purpose of discharging the petitioners. The main contention on behalf of the petitioners, however, is that even if it is accepted for the sake of arguments that the petitioners were responsible for admitting Satyam Tiwary at Kanke, no offence under Section 216 of the Indian Penal Code would be made out against them, rather at the most the provisions of Section 225B of the Indian Penal Code would be attracted. Section 216 of the Indian Penal Code envisages that the person who harbors or conceals a person must have helped another by doing some act which amounts to evading arrest is said to be harbouring the person. The essential ingredients is that he must have knowledge of the fact that the person is accused of an offence and the accused has done something to help the offender to evade arrest. In other words the person accused under Section 216 of the Indian Penal Code employs any method which gives time and opportunity to the offender to evade the arrest. The submission on behalf of the petitioners that if at all, Section 225 or 22B would be applicable, in the facts of this case has to be rejected at this stage. Section 225 of the Indian Penal Code envisages that a person who intentionally offers any resistance or illegal obstruction to the lawful apprehension of any other person for an offence, or rescues or attempts to rescue any other person from any custody in which that person is lawfully detained for an offence shall be punished under this section in accordance with the gravity of the main offence; whereas, Section 225-B envisages, that whoever in any case not provided under Section 224 and 225 or in any other law being in force, intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself or any other person, or escapes or attempts to escape from any custody in which he is lawfully detained or rescues or attempts to rescue any other person from escaping shall be punished under this Section. On perusal of Section 224 of the Penal Code it would appear that it speaks of resistance or illegal obstruction to apprehension of himself or any other person, whereas section 225 speaks of illegal obstruction or resistance to apprehension of any other person from custody. Thus the scope of sections 224 and 225 are distinguishable from the scope of sections 216 or 225B of the Penal Code. It is necessary for a person, charged of this offence to offer resistance or ‘obstruction’ which is distinguishable from the language used in Section 216 of the I.P.C. Section 216 speaks of ‘harboring’ offender who apprehends arrest. The meaning of the word ‘harbouring’ according to Black’s Dictionery is ‘the act of affording, lodging or refuge to a person’ whereas ‘obstruction’ means something that impedes or hinders. It also means interference with the orderly administration of justice, as by giving false information etc. In the present case the question whether the petitioners by admitting the offender to the Kanke hospital, were acting in a bona fide matter or not will depend on the material which comes on record. It will be open to the petitioners to raise all questions raised in this petition at the time of the trial in the case. This Court finds no illegality in the order dated 2.1.2010, passed by the Chief Judicial Magistrate, Buxar in G.R. No. 1208 of 2003 arising out of Buxar Town P.S. Case No. 219 of 2003. This application is dismissed. AFR / Haque ( Sheema Ali Khan, J.)