INTRODUCTION Criminal Liability is what unlocks the logical structure of the Criminal Law. Each element of a crime that the prosecutor needs to prove (beyond a reasonable doubt) is a principle of criminal liability. There are some crimes that only involve a subset of all the principles of liability, and these are called "crimes of criminal conduct". Burglary, for example, is such a crime because all you need to prove beyond a reasonable doubt is an actus reus concurring with a mens rea. On the other hand, there are crimes that involve all the principles of liability, and these are called "true crimes". Homicide, for example, is such a crime because you need to prove actus reus, mens rea, concurrence, causation, and harm. The requirement that the prosecutor must prove each element of criminal liability li ability beyond a reasonable doubt is called the "corpus delicti rule". Liability needs to be distinguished from the following concepts:
culpability (purposely, knowingly, recklessly, negligently) - infers intent capacity (infancy, intoxication, insanity) - capacit y defenses responsibility (volition, free will, competency) - presumptions There are five principles of liability in Criminal Law: Pri ncipl e of A ctus Reus Reus Pri ncipl e of M ens Rea Rea Pri ncipl e of Concur Concur rence Pri ncipl e of Causation Causation Pri ncipl e of Res Resul tin g H arm
THE PRINCIPLE OF ACTUS REUS: ISSUES
Involuntariness -- sleepwalking, hypnotic behavior, etc. are seen as examples of acting upon forces beyond individual control, and are therefore not normally included in the principle of actus reus. However, certain "voluntarily induced involuntary acts" such as drowsy driving might arguably be included if the prior voluntary act created the risk of a future involuntary act. Manifest criminality -- caught red-handed, clear-cut case of actus reus proven beyond a reasonable doubt Possession -- the law recognizes various degrees of this. Actual possession means physically on your person. Constructive possession means physically under your control. Knowing possession means you know what you are possessing. Mere possession means you don't know what you are possessing. Unwitting possession is when something has been planted on you. The only punishable types of possession are the ones that are conscious and knowable.
procuring -- obtaining things with the intent of using them for criminal purposes; e.g., precursor chemicals for making narcotics, "pimping" for a prostitute, and procuring another to commit a crime ("accessory before the fact") status or condition -- sometimes a chronic condition qualifies as action, e.g., drug addiction, alcoholism, on the assumption that first use is voluntary. Sometimes the condition, e.g. chronic alcoholism, is treated as a disease which exculpates an individual. Most often, it's the punishment aspect of criminal law in these kinds of cases that triggers an 8th Amendment issue. Equal Protection and other constitutional issues may be triggered. thoughts -- sometimes, not often, the expression of angry thoughts, e.g., "I'll kill you for that" is taken as expressing the resolution and will to commit a crime, but in general, thoughts are not part of the principle of actus reus. Daydreaming and fantasy are also not easily included in the principle of mens rea. words -- these are considered "verbal acts"; e.g. sexual harassment, solicitation, terroristic threats, assault, inciting to riot. THE PRINCIPLE OF MENS REA: ISSUES
circumstantial -- determination of mens rea through indirect evidence confessions -- clear-cut direct evidence of mens rea beyond a reasonable doubt constructive intent -- one has the constructive intent to kill if they are driving at high speeds on an icy road with lots of pedestrians around, e.g. general intent -- the intent to commit the actus reus of the crime one is charged with; e.g., rape and intent to penetrate specific intent -- the intent to do something beyond the actus reus of the crime one is charged with; e.g., breaking and entering with intent to burglarize strict liability -- crimes requiring no mens rea; liability without fault; corporate crime, environmental crime transferred intent -- the intent to harm one victim but instead harm another THE PRINCIPLE OF CONCURRENCE: ISSUES
attendant circumstances -- some crimes have additional elements that must accompany the criminal act and the criminal mind; e.g., rape, but not with your wife enterprise liability -- in corporate law, this is the idea that both the act and the agency (mens rea) for it can be imputed to the corporation; e.g., product safety year-and-a-day rule -- common law rule that the final result of an act must occur no later than a year and a day after the criminal state of mind. For example, if you struck someone on the head with intent to kill, but they didn't die until a year and two days later, you could not be
prosecuted for murder. Many states have abolished this rule or extended the time limit. In California, it's three years. vicarious liability -- sometimes, under some rules, the guilty party would not be the person who committed the act but the person who intended the act; e. g., supervisors of employees THE PRINCIPLE OF CAUSATION: ISSUES
actual cause -- a necessary but not sufficient condition to prove causation beyond a reasonable doubt; prosecutor must also prove proximate cause. but for or sine qua non causation -- setting in motion a chain of events that sooner or later lead to the harmful result; but for the actor's conduct, the result would not have occurred intervening cause -- unforeseen events that still hold the defendant accountable legal causation -- a prosecutor's logic of both actual and proximate cause proximate cause -- the fairness of how far back the prosecutor goes in the chain of events to hold a particular defendant accountable; literall y means the next or closest cause superceding cause -- unforeseen events that exculpate a defendant PRINCIPLES OF RESULTING HARM: ISSUES
These are issues involving the law of accessories and attempts (later lecture). RESPONSIBILITY FOR CRIME: PRESUMPTIONS
Presumptions are court-ordered assumptions that the jury must take as true unless rebutted by evidence. Their purpose is to simplify and expedite the trial process. The judge, for example at some point in testimony, may remind the jury that it is OK to assume that all people form some kind of intent before or during their behavior. It is wrong, however, for the judge to order the jury to assume intent or a specific kind of intent in a case. Presumptions are not a substitute for evidence. Presumptions are supposed to be friendly reminders about safe, scientific assumptions about human nature or human behavior in general. The most common presumptions are: reminders that the accused is considered innocent until proven guilty. reminders that the accused is to be considered sane, normal, and competent. It is important to understand that presumptions are not inferences. Presumptions must be accepted as true by the jury. Inferences may be accepted as true by the jury, but the trick is to get the jury to believe they thought of it first. Lawyers are not allowed to engage in the practice of "stacking of inferences", or basing an inference solely upon another inference. Lawyers are also prohibited by logic from making certain "impermissible inferences" and here's an example of how the logic goes.
HARBOURING OFFENDER Meaning
To ―harbour‖ used in respect of harbouring offender means, to give such persons shelter, or to permit them to congregate, even though it be only to take part in a ―friendly lead‖ for the purpose of raising a legitimate subscription. ―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 is said to harbour such offender.‖ Provision
Section 212 of Indian Penal Code, defines the term harbouring offender it states that: 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 onefourth part of the longest term of imprisonment provided for the offence, or with fine, or with both.
―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
1. This provision shall not extend to any case in which the harbour or concealment is by the husband or wife of the offender. Illustrations
1. 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
imprisonment of either description for a term not exceeding three years, and is also liable to fine. As section 201 of this code deals with causing disappearance of evidence and giving false information to screen the offender while Section 212 deals with harbouring of offenders. An offence under this section presupposes that some other offence has been committed by another person whom the accused harbours or conceals with the intention of screening the other person from legal punishment. The word ―Harbour‖ includes supplying a person with shelter, food, drink money, cloths, arms, ammunitions or means of conveyance or assisting a person in any way to evade apprehension. Mere knowledge of the whereabouts of the offender does not amount to harbouring him, unless the alleged harbourer is guilty of supplying the person with food, shelter etc. the exception to the section provides that this provision shall not extend to any case in which the harbouring or the concealment is done by the husband and wife of the offender. The harbouring of a person must be done with the intention of screening the person from legal punishment. If, however, the person concerned gives food or medical aid to a person on humanitarian considerations and he has no intention of screening the offender from legal punishment, no offence of harbouring within the meaning of this section can be said to have been committed. No prosecution can be launched under this section until the man offender is convicted of the offence he has alleged to have been committed. This is because, if, the person accused of the main offence is acquitted, then he can no longer said to be an offender and harbouring him cannot be said to be an offence. Thus, it is only logical if a person has to be prosecuted under this section, it can only be done after the person harboured is found guilty of the main offence. ESSENTIALS OF SECTI ON 212
In order to constitute an offence under this section it must be established ; 1) That an offence has been committed, 2) That the person known or reasonably believed to be the offender has been harboured and concealed, and 3) That such harbouring or concealing has been done with the intention of screening that person from legal punishment. We can cite case laws in order to clear the concept….i.e. The case of Sanjiv Kumar V. State of Himachal Pradesh 1 , In this case 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 him on his scooter. It was held that the 1
1999 CriLJ 1138(SC)
ingredients for offence of harbouring offender were not established and therefore conviction of Lekh Raj under Section 212 of I.P.C. was set aside. An offence under this section is to be tried after the conclusion of the trail of the offender 2. Three Domes were found concealing themselves in the Dalan of the petitioner and were arrested by the Chwkidar and other villagers. The petitioner was said to have been asked by the villagers how the Domes came to be there, and he gave no answer. The defence was not it was the petitioner himself that had arrested the three Domes. It was also in evidence that a dacoity had been committed in the neighbourhood, and that in connection with this dacoity not only were process under sections 87 and 88, Cr. P.C., taken out and served against the three Domes, but proclamations by beat of drums were made. But the proclamations neither named these particular Domes as the offenders nor specified that particular dacoity of which evidence had been given in the case as the dacoity of which they were suspected. Held, that this was clearly insufficient to fulfil the requirements of Section 212. AIR 1938 Pat 358. As the co-accused was very close to the accused being a director in a company in which the accused was also a director, it can reasonably be inferred that the car of co-accused was sent to the accused for picking him up from Delhi and co-accused knew or had reason to believe that the co-accused was involved in the offence and the car was sent to screen him from legal peevish. The accused therefore has been rightly charged under Section 212, IPC. State V. Siddarth Vashisth3 , Where petitioner girl is alleged to have been kidnapped by respondents for immoral purpose. She was apprehended along with two accused persons. She was sent to ―After Care Home‖—petition for her release from ―After Care Home‖--- petitioner claiming herself to be major and having married respondent---Her age was held to be in dispute ---She was also found suffering symptoms of ―mode disorder‖---It was held that, under such circumstances her statement not to be accepted on its face value as free and voluntary statement---As facilities in ―After Care Home‖ not proper, she is directed to be released in favour of her father. Madhumita Sinha V. State of Bihar 4. SCOPE OF THE SECTION
This Section does not apply to the harbouring of persons, not being criminal who merely abscond to avoid or delay a judicial investigation, nor, necessarily, to acts of assistance given to known criminal in this shape of money, food or means of escape, etc. it supposes that some offence has actually been committed, and that the harbourer gives refuse with the intention of screening him from legal punishment in his house or in some hiding place, to one whom he knows or has reason to believe to be the offender. The precise offence may be unknown to him. Thus he may not know whether the person harboured has committed theft, or extortion, or robbery ; but if he has reason to know that an offence against property has been committed by such person, this section will apply. To support the charge the following proof is required:
2
1937 MWN 21 2001 Cri LJ 2404 (Delhi) : 2001(2) CCR 51 (65). 4 (1994) 3 Crimes 254. 3
1. That an offence has been committed. The trail will not usually take place until after guilt of the principle offender has been ascertained by his conviction; if it takes place before, there must be sufficient proof of some offence committed. 2. The harbouring or concealment of the person of the offender must be proved. A mere receipt of the property plundered, or of the proceeds of it, will not constitute this offence. 3. Knowledge or cause for believing that the person harboured is the offender must also be proved. The intention to screen from justice would be reasonably inferred from proof of the above circumstances. But of course if the accuse can show satisfactorily that he had no intention of screening the offender this will be a good defence. The section extends to all cases, save the two excepted ones. This a Master receiving his Servant, or a servant his master,--a brother his brother---or father of his son,--will all be subject to punishment. In some of these instances, however the offence may be deemed to be delivering of a very light punishment. PROVISIONS RELATED TO LIABILITY OF HARBOURING OFFENDER Section 213:- Taking gift, etc., to screen an offender from punishment--
Whoever accepts or attempts to obtain, or agrees to accept, any gratification for himself or any other person, or any restitution of property to himself or any other person, in consideration of his concealing an offence or of his screening any person from legal punishment for any offence, or of his not proceeding against any person for the purpose of bringing him to 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 seven 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 not extending 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. Scope:--
This compounding of a crime by some agreement not to bring the criminal to justice if the property is restored or a pecuniary or other gratification (see section 161) is given if the
offence punished by this and the following section. Those offences which approach in this nature to civil wrong admitting of compensation are expected from those provisions. There cannot be screening of an offence when no offence has been committed 5. To establish the commission of offence under sections 213 and 214 it is essential to prove commission of the offence screened6. The offence constituted by section 213 and section 214, I.P.C., consist in the corrupt motive which is brought in to play as much as in the delay to criminal justice 7. Actual concealment or screening or abstention must be proved. 52 Cal 151. This section does not require an actual concealment of an offence or the screening of any person from any punishment or the actual screening of taking any proceedings. An offence under this section is established, if illegal gratification is received in consideration of a promise to conceal an offence or screen any person from Legal punishment or desist from taking any proceeding 8. This section is applicable where the person actually taking the bribe is not a public servant. Where he is a public servant, the appropriate section is section 161, or Section 162, I.P.C. 47 Cr LJ 623. Section 214:- Offering gift or restoration of property in consideration of screening offender:
Whoever gives or causes, or offers or agrees to give or cause, any gratification to any person, or restores or causes the restoration of any property to any person, in consideration of that person’ concealing an offence, or of his screening any person from legal punishment for any offence, or of his not proceeding against any person for the purpose of bringing him to 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 seven 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 not extending 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. Exceptions
5
15 Bom LR 694: 14 Cr LJ 453. 46 Ind Cas 454. 7 40 Cri LJ 278 : 1925 Cal 85. 8 51 Bom LR 564 : AIR 1949 Bom 405. 6
1. The provisions of sections 213 and 214 do not extend to any case in which the offence may lawfully be compounded. NOTE- It is not competent for a magistrate to permit the offences of cheating and fraudulent personation to be compounded. 3 All 383. This section includes the offer of a bribe by a person who has committed the offence that it is desired to screen9. This section is not applicable to where they are compoundable.
A Court dealing with a charge under this section, is not entitle to question or review the correctness of the decision of another court acquitting a person charged with having committed an offence which the person before it is charged with having attempted to conceal10. Section 215:- Taking gift to help to recover stolen property, etc-
Whoever takes or agrees or consents to take any gratification under pretence or on account of helping any person to recover any movable property of which he shall have been deprived by any offence punishable under this Code, shall, unless he uses all means in his power to cause the offender to be apprehended and convicted of the offence, be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Scope of the section
This section has three essentials ingredients : 1) Taking or agreeing or consenting to take any gratification under pretence or on account of helping any person to recover any movable property ; 2) The owner of such property must have been deprived of it by an offence punishable under I.P.C. e.g. theft ; 3) The person having taken or agreed to take gratification must not have used all means in his power to cause the offender to be apprehended or convicted of the off ence. All these ingredients must be found to exist, before a conviction can be sustained. AIR 1940 Pat 548 : 41 Cr LJ 902. This section has nothing to do with taking any illegal gratification. This section aims primarily at professional trackers and other persons who being usually in league with thieves or well aware of their proceedings, obtain money for recovery of stolen property without making any effort to bring the offenders to justice. This section is applicable to the case of the offender himself taking gratification11. The important point under 215 Is that the offender should know the criminal and screen him from justice. It is not an offence to take money from another in order to help him to find stolen property and to convict the thief. In order that the act should come within the scope of 9
1 Weir 195 : 1 MLJ 463 47 Cr LJ 817 : AIR 1946 Pat 201. 11 1 Weir 196 ; 23 All 81 :26MLJ 598. 10
this section, there should evidence first that the property is stolen, second, that the accused knew the criminal and third, that he has failed to use all means in his power to cause the offender to be apprehended12. The offence punishable under this section, consist in any person taking or agreeing or consisting to take any gratification under pretence or on account of helping any person to recover any movable property of which he shall have been deprived of by any offence punishable under the code, unless such person uses all means in his power to cause the offender to be apprehended and convicted of the offence. Where the charge against the accused is that he took a sum of money from the complainant for returning the latter’s donkey which has strayed, he cannot be convicted under section 215, though he may plead guilty to the charge, because the charge discloses no offence known to the law 13. A person suspected of theft may, if the prosecution fails to prove the fact of theft by him, still be convicted under section 215. AIR 1938 Pat 590 ; AIR 1934 All 783 : 85 Ind Cas 244 : 26 Cr LJ 481 ; AIR 1924 All 783. Once the elements of an offence under section 215 have been established by evidence, the onus of proving that the person charged is entitle to the benefit of the exception, is on the defence, particularly so where there has been a spontaneous demand by the accused of money indicating an intention to bring the offender to justice. AIR 1938 Pat 590 : 1938 PWN 679 : 177 Ind Cas 244 : 39 Cr LJ 887. In a case under this section the prosecution need not prove the negative that the accused did not use all means in his power to cause the offender to be apprehended. It is for the defence to establish the positive fact that they did all in their power to cause the offender to be apprehended14. It cannot be said that an actual thief cannot be punish under this section if the other elements are present. AIR 1941 Pat 138. An attempt to take gratification within the meaning of this section necessarily includes the idea of concurrence of wills between the giver and taker ; with this much superadded thereto, that some act has been done preliminary to the act of taking 20 All 389. This section is intended for the punishment of persons who, being usually in league with thieves, or well aware of their proceedings, obtain money, etc, for the recovery of stolen property, without making any effort to bring the offender to justice. In many places, cattle, etc., are stolen by persons whose object it is to restore the stolen property to the owner on payment of rewards. The ―go between‖ who is usually in case of cattle-stealing a professional tracker, is the person contemplated by this section. If he aids or instigates the thieves, he is an abettor of theft. But in default of evidence of abetment, if he receives a reward for procuring the restoration of stolen property without using ―all means in his power‖ to procure the apprehension and conviction of the offender, he is punishable under this section. 12
158 Ind Cas 934 : 1930 Cr. C 523 : AIR 1935 Sind 105. 164 Ind Cas 934 :1930 Cr C 861 : 37 Cr LJ 1038 : AIR 1936 Sind 145. 14 AIR 1947 All 225 : 48 Cr LJ 640 (FB) : ILR 1947 All 469. 13
Where thing is not stolen this section has no application merely because the accused took money from the complainant and failed to carry out his promise to find the thing 15. This section is not intended to apply to the thief himself. UBR 1914, 4 TH Qr.43 ; see also16 There can be no conviction for an offence under section 215 until it is proved that a person has been deprived of movable property by an offence punishable under this code. 11 Cr LJ 295. The deprivation of the property is not confined to one resulting from an act of theft. A man who commits criminal misappropriation of a property also deprives the owner of the possession of the property. Where cattle dealer takes a ransom for the restoration of stolen cattle and fails to restore that property to the owner inspite of the promise he is guilty of an offence under section 420, I.P.C., and not of the minor offence under section 215, I.P.C 17. Where sometime after the commission of a theft accused proposed to found out the stolen articles on their being paid some money but took no steps receiving the money to found out the thieves they are guilty of an attempt to commit an offence under section 215. 46 All 159 : 1923 All 83. Where the accused the owner in recovering certain horses that had been stolen, but there was no evidence connecting the accused with the thief excepting mere suspicion, held, that under these circumstances the accused could not be convicted under this section. 25 ALJ 866. It cannot be a defence to a charge of accepting money for returning stolen property that the person who takes the money was himself the thief. When it was found that certain bullocks had been missing from the grazing field and the accused promised to recover the animals if he was paid a certain sum and on receiving the money the accused produced the animals in short time, it is open to the court to infere that the accused was thief or one among many thieves and that he was guilty of an offence under section 215, I.P.C. 22 ALJ 838 :LR 5 All 145 Cr : 1924 All 783. This section is not intended to apply to the actual thief but to some one who takes any gratification on account of helping true owner to recover stolen property at the same time without using all the means in his power to cause the offender to be apprehended and convicted of the offence18. It is no defence to a charge under section 215 of the I.P.C. for the accused to say that he was the actual thief of the stolen property. 110 Ind Cas 592 : 29 Cr LJ 736.it is necessary in order to maintain a conviction under section 215, to prove that the complainant had been deprived of the property by an offence punishable under the code. AIR 1931 Lah 157 : AIR 1941 Pat 138 : 41 Cr LJ 922. (where cattle belonging to X stray’s away, X cannot be said to be deprived of his possession of such cattle and there is no presumption that an offence has been committed with respect to such cattle.) 15
9 PR 1915 Cr. 15 Cr LJ 471. 17 73 Ind Cas 145 : 24 Cr LJ 529 : 1923 Rang 37 18 26 ILR 303 : 88 Ind Cas 353. 16
For conviction under this section evidence that articles are stolen is necessary 19. Screening or attempting to screen is not engradients of offence. Proviso is exception to general rule and burden of proving that the case comes within it is on defence 20. There is no offence under this section where property is no lost by commission of offence and restorer is not shown screening offender 21. Section 216:- Harbouring offender who has escaped from custody or whose apprehension has been ordered
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 – 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 – 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 accused person had been guilty of it in India. Exceptions
1.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.
19
AIR 1932 Pat 241 : 139 Ind Cas 76. 145 Ind Cas 569 : AIR 1933 Cal 599. 21 133 Ind Cas 800 : AIR 1931 All 710. 20
SCOPE OF THE SECTION
The offence in the present section aggravated because the person harboured has escaped, after being actually convicted or charged with the offence, or because a warrant or order for his apprehension has been issued. It is an offence under this section to harbour or conceal a person for whose apprehension an order has been passed by a public servant, even when such apprehension is sought to be made not for the purpose of trying him for an offence that he may have committed, but for enforcing a punishment already inflicted on him for having committed the offence 22. In order to constitute an offence under the section harbouring must be done with the intention of preventing the apprehension of such person. LBR (1872-1892), 174. The word ―HARBOUR‖ in this section must be construed liberally. It includes a person who harbours the offender in house belonging to a third person and who visit him there. 14 Bom LR 483: The word ―Harbour‖ does not only mean to provide shelter, food and clothing but includes the assisting of a person in any way to evade any apprehension 23. The mere giving of a meal to two proclaimed offenders is ot an offence under this section. 6 LAH LJ 481. For a conviction under this section it must be proved that the accused knew the person harboured to be a person for whose apprehension an order had been made by competent authority24. The mere fact that an absconder is found in the house of another person is not sufficient to involve the owner of the house in an offence under section 216 unless all other elements of the offence are established. Among other thing, it is the duty of prosecution to prove the knowledge of the accused person as required by section 216. The fact that a proclamation had been made some time before the arrest is not conclusive evidence of the knowledge of the so called offender 25. In order that an offence under section 216, I.P.C. should be committed, it is necessa ry that the person harbouring the offender must be harbouring him with the intention of preventing him being apprehended. 52 Bom 151 : 30 Bom Lr 70 : 108 Ind Cas 27 : 29 Cr LJ 317 : AIR 1929 Bom 184. In order to sustain a conviction under section 216, I.P.C. it is enough to show that order of apprehension were issued against the person harboured for an alleged offence. It is not necessary to show that the said offence was actually committed. But the fact that the person harboured was acquitted may be taken in to account in awarding sentence. AIR 1928 Mad 1147: 55 MLJ 503. The accused was not found to have known that the person he harboured was a proclaimed offender before the arrival of the police to search his house. If appeared, however, that after the sub inspector had informed him that the person was a proclaimed 22
11 CLJ 109 : 5 Ind Cas 311 : Cr LJ 95. 5 Lah LJ 329 : 73 Ind Cas 691 : 24 Cr LJ 659 : see also 24 Cr LJ 485. 24 6 LAH LJ 478 : 1925 LAH 103 : 26 Cr LJ 415 : 84 Ind Cas 1055. 25 AIR 1939 LAH 19 : 40 PLR 934. 23
offender he denied the fact that he harboured him and gave prevaricating answers evidently with the object of enabling the offender to evade apprehension. Held, that the false replies given by the accused for sufficient to bring him within the purview of section 216, I.P.C. 11 LAH LJ 377 : where false information was given to police to assist evading apprehension, an offence under section 216 was committed. AIR 1930 LAH 99 :11 Llj 377:1930 Cr c 73 : 125 Ind Cas 178. ―knowing‖ means something more than reason to believe. The latter words might be satisfied though no warrant had in fact been issued. ―knowing‖, however, implies a fact which can be known 26. A person cannot be convicted under this section unless it is proved by legal evidence that an order for the arrest of the person alleged to been harboured was made. It must be proved the accused knew of the order and harboured the person concerned with such knowledge. ―Harbours‖ includes the supplying a person with shelter, food, drink, money, cloths, arms, ammunition or means of conveyance, or the assisting a person in any way to aavoid apprehension. AIR 1935 Rang 294: 36 Cr LJ 1384. Where the person harboured was to be punished for an offence punishable with imprisonment of less than one year, harbour cannot be convicted under this section27. Section 216A:- Penalty for harbouring robbers or dacoits
Whoever, knowing or having reason to believe that any persons are about to commit or have recently committed robbery or dacoity, harbours them or any of them, with the intention of facilitating the commission of such robbery or dacoity or of screening them or any of them from punishment, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine. Explanations
1.For the purposes of this section it is immaterial whether the robbery or dacoity is intended to be committed, or has been committed, within or without India. Exceptions
1.This provision does not extend to the case in which the harbour is by the husband or wife of the offender. SCOPE OF THE SECTION
In order to justify a conviction under this section, there must be evidence, both of knowledge and of intention. Rat Un Cr C 775. In a prosecution under section 216-A, the burden is on the prosecution to establish the following ingredients : I. II. III. 26 27
That the person in question were about to commit or had recently committed robbery ; The accuse know this ; That the accused harboured them or some of them ;
71 IA 83 : 45 Cr LJ 721 : AIR 1944 PC 54. AIR 1943 Oudh 51 : 44 Cr LJ 40
IV.
That the accused did so with the intention of (a) facilitating the commission of robbery or dacoity, or (b) screening them or some of them from punishment. 1958 MPLJ (Notes) 94. Leading a pony to certain dacoit to enable them to carry their loot away is not ―harbouring‖ under this section. 22 LJ 496 : 80 Ind C as 711 :1924 All 676.
This section requires that no one should harbour any person who are about to commit a dacoity with the intention of facilitating the commission of such dacoity. 26 Cr LJ 1028. The provisions of section 110, Cr. Pro. Code, do not apply to a person suspected of harbouring dacoits. Such a man should be dealt with under section 216-A. AIR 1928 All 682. Where the principle offenders have been acquitted, another person cannot be punished for harbouring them28. The proof required are that certain persons had really committed or were about to commit robbery or dacoity and that the accused knew or had reason to believe it and that he harboured all or any of such person and did with the intention of facilitation the commission of such robbery or dacoity or screening them or any of them from punishment. 1958 MPLJ 94. Section 216B:- (Repealed) Definition of “harbour” in sections 212, 216 and 216A
Rep. by the I ndi an Penal Code (A mendment) A ct, 1942 (8 of 1942), s. 3.
CONCLUSION
A recent decision of this Court decided by a single Judge, Curgenven, J., in Rangaswami Goundan, In re (1928) 55 M.L.J. 503 : I.L.R. 52 Mad. 73 dealt with a case that arose under Section 216 of the Indian Penal Code. That section deals with harbouring an offender who escaped from custody and whose apprehension has been ordered. The requirements of that section are that an order of apprehension should have been issued and the person who was harbouring knew of the existence of such an order for the apprehension and with that knowledge concealed that person with the insertion of preventing him from being apprehended. It would be seen that the language and elements of Section 216 are radically different from those of Section 216-A. The learned Judge had this particular distinction clearly in his mind in referring to several cases that arose under various sections of the Penal Code, namely, Sections 201, 203, 212, 213 and 214. He pointed out that in the case of each of these sections, the nature of the offence rightly construed requires that the person in respect of whom it was committed had himself committed the offence. He also pointed out that the same must be held good with regard to Section 214, Indian Penal Code, which renfders punishable the screening of a person from any offence. He then observed: 28
ILR 1947 Mad 793 : 48 Cr LJ 287 : AIR 1947 M 303.
It is clear that no person can be screened from legal punishment for an offence, if he has not rendered himself liable to it by his conduct. Having regard to this principle and the clear distinction that exists between the language of those other sections and Section 216 which the learned Judge was considering in that case he was of the opinion that the requirements of Section 216 were satisfied if it was shown that there was an order of apprehension in force which the person harbouring knew when harbouring the person and he did that act for the purpose of preventing him from being apprehended. There are decisions of other High Courts on the same lines which it is unnecessary to advert to here. The principle applicable to such cases is to my mind perfectly clear that when a person charged with the substantive offence of dacoity or robbery has been acquitted of that offence, another person who is said to have intended to screen him from legal punishment in respect of that offence cannot be held guilty of harbouring the alleged offender under Section 216-A, Indian Penal Code. The proceedings in C.C. No. 163 of 1946 on the file of the Additional First Class Magistrate against the petitioners are quashed.
http://law.chdfirms.com/indian_penal_code/chapter_11.php
