The case brought against the petitioners as gathered from a part of the charge sheet filed in this case is that they committed an offence under section 216-A, Indian Penal Code. The allegation against them is that, knowing full well that four persons mentioned in the charge sheet had all, along with others committed dacoity on the night of 11thFebruary, 1946, at Tirupati by forcibly removing the cinema amplifier from police custody and that a case of dacoity had been registered against them and that they were wanted in that case, they harboured those four persons from 16th February, 1946, to March 1946 with food, shelter and money at Tirupati with the intention of screening them from punishment and to make them evade apprehension in P. R. Case Nos. 4 and 5 of 1946. The four persons mentioned in the charge sheet as the individuals who were harboured by the petitioners were tried along with others for offences under sections 395 and 353, Indian Penal Code. The Magistrate who tried them found that there was no evidence on record to justify the case being placed before the jury against any of the accused therein with regard to either of the offence of dacoity or the offence of assaulting a public servant and that there were no grounds to commit the accused to take their trial in the Court of Session. He directed the discharge of the accused persons. The result of the discharge is that the four persons cited as P. Ws. 1 to 4 in the charge sheet in the present case and who are stated to have committed dacoity, and in respect thereof harboured by the petitioners have been by a judicial order which has become final absolved altogether from any liability in respect of the alleged crime of dacoity.

The question raised upon these facts by Mr. Rangaswami Ayyangar on behalf of the petitioners is that in view of the discharge of the four persons, who were stated to have been harboured by the petitioners, of the offence of dacoity the prosecution of the petitioners under section 216-A, Indian Penal Code, is untenable. Section 216-A reads thus so far as is material to the present case:

“Whoever knowing or having reason to believe that any persons have recently committed dacoity harbours them or any of them with the intention of screening them or any of them from punishment shall be punished with rigorous imprisonment for a term which may extend to seven years.”

The contention of the learned counsel is that the intention to screen certain persons from punishment in respect of an offence of dacoity actually committed by them is the essential ingredient of section 216-A and no person can be prosecuted in the absence of a proof of the existence of such intention. When however in law no offence of dacoity has been committed by the persons to whom shelter was given there is no question of harbouring them within the meaning of section 216-A.

The question raised is one of first impressions and though there are a number of decisions bearing upon other similar sections of the Indian Penal Code, the nearest decision bearing upon the point under consideration is the case decided by a Bench of this Court in Queen-Empress v. Swaminatha1. That case dealt with an offence under section 214, Indian Penal Code, of offering gift or restoration of property in consideration of screening an offender. The language employed in section 214 bears close resemblance to the language of section 216-A where also the intention postulated is the intention of screening any person from legal punishment for any offence. Muthuswami Ayyar and Parker, JJ., held in that case that if the main offender had been acquitted of the offences of house-breaking and theft and he was not liable to legal punishment there was no question of section 214 coming into play in the matter of offering a gift, etc., in consideration of screening such a person from legal punishment for that offence. The learned Judges observed:

“It is contended that it is not necessary that an offence should be actually