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2014 Supreme(Guj) 890
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, J.
Pramodkumar Anand Mishra – Appellant
Vs.
State of Gujarat – Respondent
Special Criminal Application (Quashing) No. 1879 of 2014
Decided On: 24.12.2014
Advocate Appeared:
For Appellant/Petitioner/Plaintiff:Tejal A. Vashi, Advocate
For Respondents/Defendant: Public Prosecutor
Headnote:
Indian Penal Code, 1860 - Section 212 - Criminal Procedure Code, 1973 - Section 482 -Petitioner is husband of original accused No. 3 -She has committed an offence noted above and facilitated principal offender in commission of offence of rape - So far as petitioner is concerned, only allegation made against him is that of having committed offence of harbouring offender, punishable under Section 212 of Indian Penal Code -Petitioner was arrested and was remanded to police custody - He was ordered to be released on bail vide order by 2nd Additional Sessions Judge -He is absolutely innocent and is in no way concerned with offence as alleged by prosecution -Held, If it is case of petitioner that evidence is not sufficient to frame charge under section 212 of Indian Penal Code, then he may file a discharge application before trial court -Petition disposed of.
Based on the provided legal document, here are the key points regarding the case and the interpretation of Section 212 of the Indian Penal Code:
Case Details * The petitioner is the husband of the original accused (No. 3), who was alleged to have facilitated a principal offender in the commission of rape. * The petitioner was arrested and charged with harbouring an offender under Section 212 of the Indian Penal Code (IPC). * The petitioner filed a Special Criminal Application (Quashing) under Article 226 of the Constitution of India seeking to quash the First Information Report (FIR), charge-sheet, and the application for adding Section 212. * The petitioner argued that he is absolutely innocent and that Section 212 does not extend to cases where harbouring is done by a husband or wife of the offender. * The petitioner further contended that he cannot be prosecuted for harbouring until the principal offender is tried and convicted, arguing that without a convicted principal offender, there is no "offender" to harbour. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Legal Interpretation of Section 212 IPC * Ingredients of the Offence: To establish guilt under Section 212 IPC, the prosecution must prove three things: (i) an offence has been committed, (ii) the person harboured has already committed that offence, and (iii) the accused harboured the person knowing or having reason to believe they were the offender, with the intention of screening them from legal punishment. (!) (!) (!) (!) * Definition of "Offender": The term "offender" in Section 212 does not strictly mean a person who has been convicted by a court. It refers to a person who has actually committed the offence. A person can be an "offender" even if they are acquitted, provided the harboring was done with knowledge or reasonable belief that they committed the crime. (!) (!) (!) * Requirement of Conviction: It is not a legal requirement that the principal offender must be convicted before the accused can be tried or convicted under Section 212. The criminality lies in the act of concealment with knowledge and criminal intent, regardless of the ultimate fate of the main offender. (!) (!) * Joint Trial: Offences under Section 212 are interconnected with the main offence and form part of the same transaction. Therefore, it is permissible and often necessary to try the accused under Section 212 jointly with the main accused to avoid multiplicity of trials. (!) (!) (!) (!) * Prematurity of Prosecution: Arguments that prosecution under Section 212 is premature unless the main accused is convicted are rejected. While it may be advisable to wait for the conclusion of the main trial if the case is charged separately, the proper course in a joint trial is to proceed together. (!) (!) * Burden of Proof: The prosecution must prove that an offence has been committed and that the accused had knowledge or reason to believe the harboured person was the offender. Mere suspicion is insufficient. (!) (!) * Discharge Application: If the petitioner believes there is insufficient evidence to frame a charge under Section 212, the appropriate course of action is to file a discharge application before the trial court, rather than seeking quashal in the High Court. (!) (!) (!)
Court's Decision * The High Court held that the petitioner could be prosecuted and tried for the offence of harbouring under Section 212 IPC even if the principal offender had not yet been tried or convicted. * The court rejected the argument that conviction under Section 212 is contingent upon the conviction of the main offender. * The petition was disposed of with a direction that the petitioner should file a discharge application before the trial court if he contests the sufficiency of the evidence. The trial court will consider the merits of the case and decide on the discharge application independently. (!) (!) (!) (!) (!) (!) (!)
J.B. Pardiwala, J.
1. By this writ application under Article 226 of the Constitution of India, the petitioner-original accused has prayed for the following reliefs:
"(a) This Honourable Court maybe pleased to issue any appropriate writ, order or direction and be further pleased to exercise the inherent powers to quash and set aside the First Information Report being CR I No. 31/2013 registered with Jahangirpura Police Station on 5/10/2013 for the alleged offences under sections376(2)(K)(F), 377, 354, 357, 342, 346, 143, 147, 148, 149, 506(2), 120(B) read with sec. 212 of the Indian Penal Code at Annexure-A as well as the charge-sheet as also the application for addition of sec. 212 of the Indian Penal Code dated 11/10/2013 at annexure-C to the petition;
(b) Pending hearing and final disposal of this petition, the Honourable Court may be pleased to stay the further proceedings vis-à-vis the present petitioner in connection with the FIR at Annexure-A, the charge-sheet at Annexure-G as also the application for addition of sec. 212 of the Indian Penal Code dated 11/10/2013 at annexure-C to the petition;
(c) Grant such other and further relief/s as may be deemed fit and proper in the interest of justice."
2. The facts giving rise to this petition may be summarized as under:
3. The petitioner is the husband of the original accused No. 3, viz., Ganga @ Dharmishtha. The marriage of the petitioner with Ganga was solemnized on 20th January 2006. The case of the prosecution against Ganga is that she has committed an offence noted above and facilitated the principal offender in commission of the offence of rape. So far as the petitioner is concerned, the only allegation made against him is that of having committed the offence of harbouring an offender, punishable under Section 212 of the Indian Penal Code. The petitioner was arrested on 9th November 2013 and was remanded to the police custody upto 13th November 2013. He was ordered to be released on bail vide order dated 15th November 2013 by the 2nd Additional Sessions Judge, Surat. It is his case that he is absolutely innocent and is in no way concerned with the offence as alleged by the prosecution. In such circumstances, the petitioner prays that the charge-sheet filed against him of the offence punishable under Section 212 of the Indian Penal Code deserves to be quashed and he should be discharged from the prosecution.
4. Ms. Tejal Vashi, the learned advocate appearing on behalf of the petitioner vehemently submitted that by no stretch of imagination the petitioner can be prosecuted of the offence of harbouring, punishable under Section 212 of the Indian Penal Code since the Exception to Section 212 makes it very clear that Section 212 would not extend to any case in which the harbour or concealment is by the husband or the wife of the offender.
5. The principal argument of Ms. Vashi is that the petitioner cannot be prosecuted and tried of the offence of harbouring until the principal offenders are put to trial and convicted.
6. To put it in other words, Ms. Vashi contends that in order to convict the petitioner for an offence under Section 212 of IPC, first of all there must be an offender who has to be harboured, that unless and until the principal offenders are convicted for the offence under Section 376 etc., the principal accused would not become offender. The petitioner who is charged with the offence of harbouring under Section 212 IPC cannot be tried along with the other accused persons.
7. It is also submitted by Ms. Vashi that there is no material whatsoever to show that the petitioner had the knowledge or that he reasonably believed that he was harbouring or concealing a person who is an offender. According to Ms. Vashi the essential feature 'secrecy' is totally absent.
8. On the other hand, this application has been vehemently opposed by Mr. P.K. Jani, the learned Additional Advocate General appearing for the State. Mr. Jani submits that nowhere in Section 212 of the India
