Mere Knowledge Of Offender's Whereabouts Isn't 'Harbouring' Unless Accused Has Helped Him Evade Apprehension: P&H High Court

The Punjab & Haryana High Court has said that mere knowledge of the whereabout of the offender is not sufficient to attract office of "Harbouring Offender" without prove that the accused helped him (offender) to save from arrest.

The observation was made while quashing an FIR lodged under Section 212 IPC (Harbouring offender) and Section 216 IPC (Harbouring offender who has escaped from custody or whose apprehension has been ordered) alleging that the father has given shelter to his son in a cruelty case in order to evade his arrest.

Justice Manisha Batra said, "To attract the provisions of Section 212 of IPC, it is necessary to establish commission of an offence of harbouring or concealing the person known or believed to be an offender and such harbouring etc. must be with the intention of screening the offender from legal punishment or to avoid his apprehension."

The Court further said that, "before a person can be held guilty as an accessory, it must be shown that he expressly or impliedly assisted the offender. Mere knowledge of the whereabouts of an offender does not amount to harbouring unless the accused has done something to help the offender to evade apprehension."

According to the prosecution, a police officer went to execute arrest warrant in a matrimonial dispute case, where the officer was told that the accused used to visit the house of the petitioners at odd hours. The complainant alleged that the petitioners (father and brother of the offender) were arranging shelter for the offender.

Counsel for the petitioner submitted that there was matrimonial discord between the offender, who was son of petitioner No.1 and his wife who were married in 2006.

The criminal proceedings have been initiated only to abuse the process of law. The allegations, even if accepted to be correct on the face of record, do not make out any case for commission of offences for which they have been booked and challaned, it added.

After hearing the submissions, the Court noted that the petitioners were booked for commission of offences punishable under Sections 212 and 216 of IPC on the allegations that they had harboured the offender- Harish Kanda against whom warrant of arrest had been ordered to be issued in a petition filed by his wife. 

The Court pointed that from a plain reading of Section 212 of IPC, it would show that for convicting a person under this section, the following essential ingredients must be established:-

(i) there must be an offender who has actually committed an offence;

(ii) there must be harbouring or concealment of a person by the accused;

(iii) the accused knows or has reason to believe that such harboured or concealed person was the offender;

(iv) there must be an intention on the part of the accused to screen the offender from the legal punishment.

Justice Batra highlighted that,  for convicting a person for committing offence under Section 212 of IPC for harbouring or concealment, it must be proved that an offence has been committed and upon proving the same, the prosecution is required to show that there is harbouring or concealment by the accused or the accused has reason to believe such person to be an offender and Section 216 of IPC provides punishment for harbouring an offender whose apprehension has been ordered and who has escaped from custody.

In the present case, the Court noted that there was no sufficient evidence to infer that there was any harbouring on the part of the petitioners.

"So far as the document...concerned, the same simply shows that the petitioner No.1 and Harish Kanda were joint holders of a bank account. However, this document shows transaction during the year 2007-2008 only. From this document also, no conclusion can be drawn that the petitioner No.1 had been assisting his son in any manner, or had been financially supporting him in the year 2023 or afterwards," the Court noted further.

The Court found that there is no material on record to show that the petitioner was either harbouring or concealing his son or had taken any steps for saving him from legal punishment or had provided any shelter to him. 

In the light of the above, the plea was allowed and the FIR was quashed.

Mr. Manmeet Singh Rana, Advocate, for the petitioners.

Ms. Himani Arora, AAG, Punjab, for the respondent-State.

Mr. Sapan Dhir, Advocate, for Ms. Pooja Kanda (through Video Conferencing).

Title: Chaman Lal Kanda and another v. State of Punjab

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