HARBOURING OFFENDER: A NEED TO REVISIT

PROPOSED TO:- PROPOSED BY:-

FR. PETER LADIS F. NAME – ABHIGYAT

CHAITANYA

FACULTY OF LAW ROLL. NO. – 1802

SEMESTER – III

PROPOSAL IN FULFILLMENT OF CRIMINAL LAW–I FOR THE

DEGREE B.B.A., L.L.B (HONS.)

SEPTEMBER 2018
CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA – 800001

 DECLARATION BY THE CANDIDATE

I, ABHIGYAT CHAITANYA student of Chanakya National Law University hereby declare

that the work reported in the B.B.A.L.L. B(HONS) project report entitled
HARBOURUNG OFFENDER: A NEED TO REVISIT submitted is an authentic
record of my work carried out under the supervision of FR. PETER LADIS F. I have not
submitted this work elsewhere for any other degree or diploma. I am responsible for the
contents of my project Report.

(Signature of the candidate)

NAME: ABHIGYAT CHAITANYA

ROL NO: 1802

COURSE: B.B.A.L.L.B(HONS)

SEMESTER: 2018-2019 (3rd)

SESSION:2017-22

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 AKNOWLEDGEMENT

I would like to thank my faculty Fr. Peter Ladis F. whose guidance helped me a lot with
structuring my project.
I owe the present accomplishment of my project to my friends, who helped me immensely
with materials throughout the project and without whom I couldn’t have completed it in the
present way.
I would also like to extend my gratitude to my parents and all those unseen hands that helped
me out at every stage of my project.

THANK YOU

NAME: ABHIGYAT CHAITANYA

ROLL NO: 1802

COURSE: B.B.A.L.L.B.(HONS)

SEMESTER: 2018-19 (3rd)

SESSION:2017-22

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Table of Contents

I. INTRODUCTION...........................................................................................................3

1. OBJECTIVE OF STUDY...............................................................................................4

2. RESEARCH METHODOLOGY....................................................................................4

3. HYPOTHESIS................................................................................................................5

4. SOURCES OF STUDY..................................................................................................5

5. REVIEW OF LITERATURE..........................................................................................5

6. LIMITATIONS OF THE STUDY...................................................................................6

7. SCOPE............................................................................................................................6

II. Harbouring offender: Meaning........................................................................................7

III. Harbouring a state prisoner.............................................................................................9

IV. Harbouring Deserter......................................................................................................10

V. Harbouring Persons hired for Unlawful Assembly.......................................................12

VI. Penalty for harbouring robbers or dacoits.....................................................................12

 Section 216....................................................................................................................12

1. If a capital offence.........................................................................................................13

2. If punishable with imprisonment for life, or with imprisonment..................................13

VIII. Exceptions to Section 212 of IPC, 1860.......................................................................14

IX. Conclusion and Suggestions.........................................................................................16

X. Bibliography..................................................................................................................17

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 I. INTRODUCTION

Human is a social animal, who lives in a society and every society is governed under some
laws, rules and regulations. Where there is a society, there is a law and where there is a law,
there is a government. Anything done against the society is against the law; therefore making
the person an offender, who is punished for his wrong doing. Anything done for the offender
is against the state. Therefore, providing shelter to an offender means going against the state
under section 130, 136, 157, 212, 216 of Indian Penal Code, 1860.

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 form
legal punishment.

There have been various cases in India where innocent people are dragged in the court of law
just to be proven non-guilty. But until then they have to suffer equally as an offender of law
does. As in the landmark case of State of Tamil Nadu Through vs Nalini1 no charge was
levied against Shanthi (A-11) of harbouring merely because she was living in the house with
her husband Jayakumar who was inturn charged under 212 IPC. She was acquitted of this
charge while conviction and sentence of Jayakumar (A-10) is maintained. But at first the
police arrested all the members of Jayakumar’s house until later when hardly any
circumstance against Shanthi and other people were found charging them under 212 IPC.
Herein the issue of innocent people being dragged into court until proven innocent came into
light and thus there is a need to revisit this section.

1. OBJECTIVE OF STUDY

 to critically analyse Section 212 under IPC which deals with Harbouring an offender.
 to understand the elements that constitute to be a harbourer and who can be protected
for being the harbourer under the law.

2. RESEARCH METHODOLOGY

1 State by DSP, CBI, SIT, Chennai v Nalini and Others (1999 Indlaw SC 810)

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In this project Doctrinal methods will be used. Doctrinal Methods refer to Library research,
research or processes done upon some texts writings or Documents, legal propositions and
Doctrines, Articles, Books as well as Online Research and Journals relating to the subject.

3. HYPOTHESIS

 that at times innocent people are also caught up in this.

 that this provision shall not extend to in any case in which the harbourer or
concealment is by close relative of the offender such as parents and siblings.

4. SOURCES OF STUDY

 Primary sources: Case Law, Legal Sources, Indian Penal Code,1860, Bare Acts etc.
 Secondary Sources: Newspapers, journals, periodicals, etc.

5. REVIEW OF LITERATURE

1. P.S.A. Pillai, Criminal Law, (Lexis Nexis; Thirteenth edition, 2017)

P S A Pillai’s Criminal Law has justifiably come to be known as one of the most archetypal
text on the Indian Penal Code, 1860, ever since the publication of its first edition in 1956.
This book has comprehensively covered all aspects of Criminal Law with detailed analysis of
all the categories of offences assimilated in the Code. This book preserves the essence of the
decades old legacy of providing remarkable illustrative inputs to all those interested in the
field of criminal law and on the other covers landmark judgments which revolve around the
emerging trends in the area besides covering reforms suggested by the Law Commission and
other bodies. In this book the offences are dealt with in an academic framework with
legislative definitions that bring out the interrelationship of academic framework and the
legislative framework. This edition is a must have for all those associated with the criminal
law subject including but not limited to practitioners, academicians and students.

2. Justice K.T. Thomas & M.A. Rashid, The Indian Penal Code, (LexisNexis; Thirty Fifth
edition, 2017)

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This book is amongst the most authoritative and leading commentaries on the subject. It
adopts an integrated approach and the provisions of the Code of Criminal Procedure, 1973
and the Indian Evidence Act 1872, are referred to wherever necessary for better
understanding of the complex legal topics. The predominant changes in criminality has led to
the evolvement of various new criminal statutes concerning different subjects, yet the Indian
Penal Code, the foremost statute in the field of criminal law stands resolute. The 35th edition
of the work has been extensively and meticulously revised considering the changes brought
about by recent legislative amendments as well as judgments of the higher courts.

6. LIMITATIONS OF THE STUDY

There are various hindrances which can be faced by the researcher during the formation of
this project such as scarcity of time, expensive legal materials for various research works,
research done by an individual.

7. SCOPE

This research work will help to point out and understand the drawbacks of this provision of
law dealing with harbouring an offender. It will also criticize the fact that this law only
protects only wife or the husband of the offender rather that parents and siblings who also
share an intimate relationship.

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 II. Harbouring offender: Meaning

The word “harbour” according to Section 52A includes the supplying a person with
shelter, food, drink, clothes, arms, ammunition of means of conveyance, or the assisting a
person by any means to evade apprehension.
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 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 which 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.2

“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, 392, 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.

Anyone, who knowingly, with an intention to screen an offender from legal punishment,
provides shelter to the offender, shall be subjected to punishment. In the case of Sidhartha

2 Section 212-the Indian Penal Code.

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 Vashchit, where the accused shot dead a bartender because she refused to serve him liquor,
his friend provided him within the meaning of Section 52A of IPC in order to screen him
from legal punishment. Consequently, he was acquitted under Section 212 of the IPC3

Illustration- A, in personal rivalry, kills B. C, knowing A to be an offender, with an

intention to protect him from legal proceedings, harbours A in his house. C shall be liable to
imprisonment, which may extend to five years and fine.

Note4- Taking the above illustration, in cases other than capital offence the punishment,
which C shall be subjected to, would vary according to the nature of crime committed by A
(as prescribed in section 212). However, if C is the spouse of A, she would not be
penalized.

The Allahabad High Court, in the case of Pawan Kumar Mittal and others v State of Uttar
Pradesh and another7 held that, when a person helps the offender or someone related to the
crime, to carry a dead body in his car, so as to help the murderer in throwing away the dead
body is liable under section 212 of the IPC.

Where, a person acquired and possessed arms and ammunitions illegally and also lent his
car to aid terrorists carry out bomb blasts in city was held liable under this section.5

Similarly, in a case, where a person knowingly allowed the use of his business place
(studio) for training a person, who had planned to commit or assist someone in commission
of crime (to take photographs and videos of assassination of the Prime Minister), was also
held guilty.6

3 State Government (NCT of Delhi) and others v Sidhartha Vashisht @ Manu Sharma and others(2013 Indlaw
DEL 1369)

4 Indlaw ALL 1883

5 Anjum Abdul Razak Memon and others v State of Maharashtra (2013 Indlaw SC 169; JT 2013 (6) SC 1;
2013(4) SCALE 1)
6 State by DSP, CBI, SIT, Chennai v Nalini and Others (1999 Indlaw SC 810)

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 In Sanjiv Kumar v. State of Himachal Pradesh 7, the allegation was that accused Lekh Raj
took main accused Sanjiv Kumar who committed murder on his scooter. But there was no
material showing that accused Lekh Raj knew about commission of murder by Sanjiv
Kumar when he took him along with his on hisscooter.it was held that the ingredient for
offence of harbouring offender were not established and therefore conviction of Lekh Raj
under section 212, IPC was set aside.

III. Harbouring a state prisoner

“Whoever knowingly aids or assists any state prisoner or prisoner of war, in escaping from
lawful custody, or rescues or attempts to rescue any such prisoner, or harbours or conceals
any such prisoner who has escaped from lawful custody, or offers or attempts to offer any
resistance to the recapture of such prisoner shall be punished with [ imprisonment for life],
or with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.”8

Explanation - A State prisoner or prisoner of war, who is permitted to be at large on his

parole within certain limits in India, is said to escape from lawful custody if he goes beyond
the limits within which he is allowed to be at large.

Any person who knowingly rescues or helps or assists a state prisoner or a prisoner of war to
escape from the place, where he is directed by the law to stay would be punished with
imprisonment which may extend to ten years or lifetime and fine. Apart from helping, anyone
who harbours or offers to harbour an absconded prisoner would also be subjected to the same
punishment.

7 1999 Cri. L.J. 1138 (S.C.)

8 Section 130 the Indian Penal Code.

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The essential ingredients of this section are-

 Knowledge, that the person being harboured is an offender.

 Assistance or attempt from the harbourer to the offender to escape from the lawful
custody. Or
 An offer of or actual harbouring of such offender by the harbourer.

Illustration-

I). A knowing B to be a state prisoner helps him escape from the lawful custody and also
provides him (A) shelter in his (B’s) house. B has committed offence of harbouring a state
prisoner.

II). A and B state prisoners, during the parole are permitted to go to a particular place. In the
way, A finds his friend D who forces A and B to escape from the lawful custody, however
they deny and go back to the prison. Here, D would be subjected to punishment under this
section, as he has attempted to rescue them.

The essential ingredient of the section is knowledge. In case if someone harbours’ a person
without any knowledge of him being a state prisoner, he shall not be liable under this section.

IV. Harbouring Deserter

Whoever, except as hereinafter excepted, knowing or having reason to believe that an officer,
soldier, sailor or airman, in the Army, Navy or Air Force of the Government of India, has
deserted, harbours such officer, soldier, sailor or airman, shall be punished with imprisonment
of either description for a term which may extend to two years, or with fine or with both.9

9 ,3 Section 136- the Indian Penal Code

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Exception- This provision does not extend to the case in which the harbour is given by a wife
to her husband.3

This section deals with the harbouring of a deserted officer, soldier, sailor or airman of the
Indian Army, Navy or Air Force. It says any person who knowingly harbours a deserted
officer, soldier, sailor or airman of the Indian Army, Navy or Air Force of the Indian
Government will be punished with an imprisonment of up to two years and fine.

Essential requirements-

 Knowledge about the desertion of the person deserted.

 There should be an actual harbour; mere offer to harbour would not suffice.

Exceptions- A wife would not be liable under this section even if she knowingly harbours her
deserted husband who is one of those persons mentioned under this section. However, the
section is not applicable in vice-versa cases. That is, it is not allowed for the husband to
harbour his deserted wife, if she is one among such persons as mentioned in the section.

Illustration- A, a deserted soldier of the Indian Navy gets harboured in B’s house who is
unaware of such desertion. B has not committed any offence. However, if B had the
knowledge of A’s desertion, he’d be liable.

Considering the same facts, if B is the wife of A, she has not committed any offence. To the
contrary, if A is the wife and B is the husband, B would be liable under this section.

Suggested reform- This section should also exempt a husband harbouring his wife.

V. Harbouring Persons hired for Unlawful Assembly

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Whoever harbours, receives or assembles, in any house or premises in his occupation or
charge, or under his control any persons knowing that such persons have been hired, engaged
or employed, or are about to be hired, engaged or employed, to join or become members of
an unlawful assembly, shall be punished with imprisonment of either description for a term
which may extend to six months, or with fine, or with both.10

A person, who is in charge of any house or other premises allows, assembles or harbours
persons, hired for an unlawful assembly shall be punished with imprisonment, which may
extend up to six months and/or with fine.

It is worth mentioning, the person allowing such assembly or harbour need not be the owner
of the premise. The conditions in this section would suffice, even if he is in charge of the
premise. If A, a tenant allows some people, hired by B for an unlawful congregation on the
tenanted premise, he shall be liable under this section of the IPC. He would be liable, even if
the persons have not been hired, but are about to be employed for the same. However, B must
have the knowledge of the future appointment. Just like that of other discussed sections,
knowledge is an essential ingredient for this section as well.

VI. Penalty for harbouring robbers or dacoits

 Section 216

Whenever any person convicted of or charged with an offence, being in lawful custody for
that offence, escapes from such custody, or whenever a public servant, in the exercise of the
lawful powers of such public servant, orders a certain person to be apprehended for an
offence, whoever, knowing of such escape or order for apprehension, harbours or conceals
that person with the intention of preventing him from being apprehended, shall be punished
in the manner following, that is to say, if a capital offence;

10 Section 157-the Indian Penal Code

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 VII. Punishment of Basic of Crime

1. If a capital offence

If the offence for which the person was in custody or is ordered to be apprehended is
punishable with death, he shall be punished with imprisonment of either description for a
term which may extend to seven years, and shall also be liable to fine; if punishable with
imprisonment for life, or with imprisonment.

2. If punishable with imprisonment for life, or with imprisonment

If the offence is punishable with imprisonment for life or Imprisonment for ten years, he
shall be punished with imprisonment of either description for a term which may extend to
three years, with or without fine; and if the offence is punishable with imprisonment which
may extend to one year and not to ten years, he 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 the imprisonment provided for such offence or with fine, or with both.

"Offence" in this section includes also any act or omission of which a person is alleged to
have been guilty out of India, which, if he had been guilty of it in India, would have been
punishable as an offence, and for which he is, under any law relating to extradition, or
otherwise liable to be apprehended or detained in custody in India, and every such act or
omission shall, for the purposes of this section, be deemed to be punishable as if the Ac
cused person had been guilty of it in India.

Exception: The provision does not extend to the case in which the harbour or concealment
is by the husband or wife of the person to be apprehended.

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This section provides punishment to those persons who harbour a person wanted in
connection with an offence which is punishable with at least one-year imprisonment.

Procedure: The offence under this section is cognisable, bailable, non-compoundable and
shall be tried by any First-Class Magistrate

VIII. .
IX. Exceptions to Section 212 of IPC, 1860

This provision has an exception as to who are protected by law for harbouring an offender. In
cases where the harbour or concealment is by the husband or wife of the offender they are not
liable under 212 IPC, 1860.

In State of Tamil Nadu v. Nalini, 11 the Supreme Court held that a wife cannot be charged for
harbouring her husband merely because she was living in the house with him. However, those
accused person who came into the picture after the object of criminal conspiracy, that is
assassination of a former Prime Minister of India, had been achieved and the harboured and
sheltered the main accused with full knowledge that they were involved in the assassination
and also made effort to destroy evidence were held to have been rightly convicted under
section 212 of the Indian Penal Code.

In the landmark case of Pramod Kumar Anand Mishra V. State of Gujarat 12 the husband was
accused for harbouring his wife Ganga who was accused for facilitating the offence of rape.
The court in this case quoted the exception under section 212 of Indian Penal Code, 1860.

Illustration:

I. A, knowing that B has committed dacoity, knowingly conceals B in order to screen

him from legal punishment. Here, as B is liable to imprisonment for life, A is liable to
11 1999 Cri L.J. 3124(S.C.)
12 Pramod Kumar Anand Mishra V. State of Gujarat((Quashing) No. 1879 of 2014)

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 imprisonment of either description for a term not exceeding three years, and is also
liable to fine.

II. A is the wife of B who has committed the offence of theft and A has the knowledge of
it. A is not liable of harbouring B as her action was out of love an affection.

This provision takes into consideration whether the harbouring was out of love and affection.
But the exception is strictly categorised to the spouse of the offender.

If the offender is harboured by his parents they can’t be protected under the exception of 212
IPC, 1860 although the love and affection is of equal amount. In the landmark case of Patna,
Bindi Yadav, husband of JD(U) MLC and father of the accused Rocky Yadav was slapped
with a fine of Rs 5,000 or one more month of simple imprisonment under section 212 of
Indian Penal code, 186013.

Illustration: -

I. A is a 19 years old college boy accused of theft. B, father of A harbours him in his
house screening him from the police. B, provides A with all necessary things out of
love an affection for him. B will be liable under sec. 212 of IPC for harbouring an
offender.

II. A has committed the offence of murder and ran to his village for hiding at his
grandparents B & C who love him the most as him being the only child in the family.
B and C will be held liable for harbouring A.

X. Conclusion and Suggestions

The various provisions in the Penal Code relate to harbouring on concealing a person
knowing him to be an offender with the intention of screening him from legal punishment;
harbouring or concealing an offender having escaped from custody, or whose apprehension

13https://timesofindia.indiatimes.com/city/patna/rocky-2-others-get-life-term-in-road-rage-
case/articleshow/60398212.cms

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has been ordered, and knowingly harbouring any persons who are about to commit or have
committed robbery or dacoity. The above provisions, however, do not extend to the case in
which the harbour is, given by the wife or husband of the person harboured. (Ss. 211, 216 and
216- A).

The above however, presupposes that some offence has actually been committed and that the
harbourer gives refuge to a person knowing that thereby he helps to evade his apprehension
or screens him from legal punishment. It does not apply to the harbouring of persons not
being criminals who abscond to avoid or delay a judicial investigation.

This section has no application to cases, where the compounding of an offence is legal. As to
the scope of this section, there are contradictory views of different High Court. In
Hemchandra Mukherjee14, the Calcutta High Court opined that this section applies only
where there has been actual concealment of an offence, or screening of a person from legal
punishment or abstention of criminal proceeding against a person in lieu of some
consideration. However, Bombay high court15 has disagreed from this view and has held that
this section does not require the actual concealment of an offence or the screening of any
person from legal punishment or the actual forbearing or talking any proceedings. It is
sufficient if an illegal gratification is received in consideration of a person to conceal an
offence or screen any person from legal punishment or resist from taking any proceeding.

Innocent people are at times dragged in cases where they didn’t have the knowledge or
intention of harbouring an offender as in the case of Nalini v. State of Tamil Nadu16. This
provision although protects the spouses of the offenders as their relationship stands on the
ground of love and affection but the provision doesn’t include other family members such as
parents whose relationship also contains relevant amount of intimacy.

XI. Bibliography

BOOKS: -
14 (1924) 52 Cal. 151
15 Biharilal Kali Charan, (1949) 51 Bom. L.R. 564
16 1999 Cri L.J. 3124(S.C.)

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  . P.S.A. Pillai, Criminal Law, (Lexis Nexis; Thirteenth edition, 2017)

 Justice K.T. Thomas & M.A. Rashid, The Indian Penal Code, (LexisNexis; Thirty
Fifth edition, 2017)

WEBSITES: -

 https://www.manupatrafast.in/pers/Personalized.aspx
 https://indiankanoon.org/doc/83180162/
 https://www.casemine.com/judgement/in/56e66ab6607dba6b53436a81

Articles: -
 https://timesofindia.indiatimes.com/city/patna/rocky-2-others-get-life-
term-in-road-rage-case/articleshow/60398212.cms

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