IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.01.2011 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.O.P.No.18411 of 2010 and M.P.No.1 of 2010 S.Dhanavel ... Petitioner/Accused-4 V. State: Inspector of Police, Chinna Salem, Villupuram District. Crime No.20/2010 ... Respondent/Complainant Criminal Original Petition filed under Section 482 of Criminal Procedure Code to call for the records in the P.R.C.No.45/2010 on the file of the Judicial Magistrate, Kallakurichi, Villupuram District, quash the same. For petitioner : Mr.A.Padmanaban For Respondent : Mr.A.Saravanan, Govt. Advocate (Crl. Side) O R D E R The petitioner stands charged for an offence under Section 212 read with 302 I.P.C. by the respondent Police. 2.The brief facts are stated below: One Subramanian arrayed as 1st accused is the husband of one Jayamani who is the deceased. The deceased was employed as Noon Meal Organizer in the Panchayat School. She was also attending the child birth and also used to terminate pregnancy as a mid- wife. The 1st accused who is her husband was running a homeopathy medicine shop. 3.According to the prosecution, A1 the husband of the deceased suspected her fidelity and frequently quarreled with her and to get rid of her planned to kill her. He got the assistance of 2nd accused by name Kumar who decoyed Jayamani to an isolated place and 2nd accused cut her neck and caused death. Later on, the 1st accused the husband of the deceased approached one Paranjothi who is his uncle arrayed as 3rd accused and informed him that he https://hcservices.ecourts.gov.in/hcservices/ caused the death of his wife. The 3rd accused knowing that 1st accused had killed his wife, had harboured him for sometime and then took him to Chennai and made him remain in a lodge. Later on, the 1st accused approached this petitioner and told him that he committed the murder of his wife. The petitioner is arrayed as 4th accused, who is said to have harboured the 1st accused in his house and later on sent him to Thirupathi. 4.The petitioner is employed as a watchman in Thiyagadurugam Government Students Hostel. He was arrested on 29.03.2010 at 12.30 p.m., by the respondent police when he was on duty. 5.According to the petitioner, barring the confessional statement of 1st accused, there is absolutely no iota of evidence to connect the petitioner with the crime. The said confession statement cannot be relied upon by the respondent police as it is inadmissible in evidence. 6.Mr.A.Padmanaban, the learned counsel for the petitioner would submit that there is absolutely no material in the documents filed under Section 173(4) to connect the petitioner with the crime. There is no evidence to show that the 1st accused was found in the company of this petitioner. He would further submit that the 1st accused has surrendered himself before the Court and he was later on taken into police custody. The confession statement allegedly is given by the 1st accused, while in custody. The learned counsel would further contend that the petitioner has been implicated without there being any legal admissible evidence. 7.The learned counsel for the petitioner would contend that in order to sustain a charge against the petitioner for an offence under Section 212 IPC, first of all, there must be an offender who has to be harboured; that unless and until A1 is convicted for the offence under Section 302 IPC, he will not become an "offender". He would submit that to attract the provisions of Section 212 IPC, it is necessary to establish commission of an offence; harbouring or concealing the person known or believed to be the offender; and further such concealment must be with the intention of screening him from legal punishment. 8.In support of his contentions, the learned counsel relied upon the decision reported in AIR (33) 1946 Patna 74 Ram Raj Chaudhury and another V. Emperor, wherein it is held that "Section 212 applies to the harbouring of persons who have actually committed an offence. It does not apply to the harbouring of persons not being criminals, who merely abscond to avoid or delay a judicial investigation. Therefore, where there is no evidence showing that the accused knew or had reason https://hcservices.ecourts.gov.in/hcservices/ to believe that the person harboured had committed any offence, he cannot be convicted under Section 212 IPC." 9.Mr.A.Saravanan, the learned Govt. Advocate (Crl. Side) fairly admitted that there is no material to link the petitioner with the crime and he would submit that barring the confession statement there is no other material against the petitioner to implicate him for the offences charged against him under Section 212 IPC. 10.It is necessary to note the ingredients which are to be established by the prosecution to bring home the guilt of an accused for an offence under Section 212 IPC. A reading of Section 212 IPC will disclose that three things have to be proved by the prosecution, viz., (i) there must be an offender (ii) the offender should have already committed an offence and (iii) the person accused of under the Section should have harboured the offender knowing that he is an offender. 11.At this juncture, it is relevant to refer to the judgment of the Honourable Supreme Court reported in (1999) 2 Supreme Court Cases 288 Sanjiv Kumar V. State of H.P., wherein the Hon'ble Supreme Court has held as follows: "21. ... It may be stated that to attract the provisions of Section 212 IPC, it is necessary to establish commission of an offence; harbouring or concealing the person known or believed to be the offender; and such concealment must be with the intention of screening him from legal punishment. The evidence adduced by the prosecution in this regard is wholly insufficient to establish either of the aforesaid ingredients, though all the ingredients are necessary to be proved. In this view of the matter, the conviction of accused Lekh Raj for the offence under Section 212 is unsustainable and we, accordingly, set aside the conviction and sentence and acquit him of the charge." 12.The principle laid down by the Hon'ble Supreme Court squarely applies to the present case. In the instant case, there is absolutely no materials to show that the petitioner harboured the 1st accused, after having known that he is the offender or reasonably believed to be the offender. A person will be deemed to have "reason to believe" only if he is shown to have sufficient cause to believe the thing and not otherwise. The Honourable Supreme Court in the decision cited supra has held that the offender denoted in Section 212 IPC is a person convicted for an offence. The relevant passage is extracted below: "... Until actually convicted, he is like every one else, entitled to the presumption that he is https://hcservices.ecourts.gov.in/hcservices/ 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." 13.As held above, the requirement is that the person whom he harbors should be believed to be an offender and the said character of the person can be proved only when he has been judicially found to be a person guilty of the offence charged. But admittedly in this case, A1 has not been convicted for the offence of murder. There are also no materials to show that the petitioner took some active steps in harbouring the prime accused after having known that he is an offender with an intention of screening him from legal punishment. Therefore, I am of the considered view that the charges laid against the petitioner cannot be sustained and the same is liable to be quashed. 14.For the reasons stated above, the charges against the petitioner is hereby quashed and the proceedings in P.R.C.No.45/2010 on the file of the Judicial Magistrate, Kallakurichi, Villupuram District, as against this petitioner shall stand quashed. Consequently, the connected miscellaneous petition is closed. Sd/- Deputy.Registrar. /true copy/ Sub Asst.Registrar. va To 1. The Judicial Magistrate Kallakurichi, Villupuram District 2. The Inspector of Police Chinnaselam, Villupuram District 3. The Public Prosecutor High Court, Madras Crl.O.P.No.18411 of 2010 and M.P.No.1 of 2010 KM (CO) kk 4/2 https://hcservices.ecourts.gov.in/hcservices/