INTERNATIONAL JOURNAL OF RESEARCH AND 2014

ANALYSIS VOLUME 2 ISSUE 2

HARBORING AN OFFENDER

**Ayush Jaiswal & Ayushi Srivastava

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.

Statement of problem

In this Paper, The provisions relating to harboring of offender in the Indian Penal Code
would be dealt with.

Hypothesis

Human life, rights and rules and regulations go in a straight line. Whenever someone tries
to swerve from this line leads to a legal action against him. An offender is someone, who is
convicted of committing a crime which may be civil or criminal in nature. An offender is
considered to be the enemy of the state. If by any means he absconds from the prison or
any such place, where he serves his sentence and gets sheltered by someone, not only the
absconder, but also the shelter provider would be liable. This project will mainly focus on
the provisions of the IPC regarding such harbor. The laws prevailing in other countries
along with recent developments and case-laws shall be discussed.

Objectives
To discuss about the provisions for harboring an offender in the Indian Penal Code.
To discuss about the laws prevailing in other countries.
To suggest reforms to the present laws.

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Method of Study
The data collection is mainly through non-empirical research.

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 harbors 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. 1

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.

The essential ingredients of this section are-

Knowledge, that the person being harboured is an offendor.
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.

1
Section 130 the Indian Penal Code.

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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 (Bs) 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.

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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.2

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 harbor; 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 Bs house who is
unaware of such desertion. B has not committed any offence. However, if B had the
knowledge of As desertion, hed be liable.

2,3
Section 136- the Indian Penal Code

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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.

Harbouring Persons hired for Unlawful Assembly

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.4

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.

Harbouring offender
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

4
Section 157-the Indian Penal Code

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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.5

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 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 IPC6

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.

5
Section 212-the Indian Penal Code.
6
State Government (NCT of Delhi) and others v Sidhartha Vashisht @ Manu Sharma and others(2013
Indlaw DEL 1369)

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Note- 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. 8

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. 9

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;

7
2009 Indlaw ALL 1883
8
Anjum Abdul Razak Memon and others v State of Maharashtra (2013 Indlaw SC 169; JT 2013 (6) SC 1;
2013(4) SCALE 1)
9
State by DSP, CBI, SIT, Chennai v Nalini and Others (1999 Indlaw SC 810)

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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.

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
Accused 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.

This section provides punishment to those persons who harbor 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.
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Conclusion
Though there are not many sections in the Indian Penal Code that deal with the concept
of harbouring of an offender, but the present day laws are practical enough to create an
apprehension in the mind of the harbourer of the consequence his act. The only section
that has a flaw in it is section 136, where only wives are exempted from harbouring their
husbands. This should be amended and husbands should also be included under the
exception. Though the law has very good provisions for this practice, what matters is
practical applicability. Very little number of cases have been filed under the sections that
deal with this concept. This itself puts a question mark on the applicability of these laws.
It gives two conclusions, one, the state has failed to spot harbourers and prosecute them.
Two, there are not many cases of harbour as the law; the police is strong enough to catch
the hold of the culprits. Deducing from the research done, the former sounds more
logical, as even in our neighbourhood we can easily find people sufficing the definition
of harbour. It is in-fact human tendency to save a relative at they can report friend from
misfortune. Legal prosecution undoubtedly is one such thing. Under these laws, there are
chances of people getting subjected to punishment only because of lack of awareness
about law. Though ignorance of law is no excuse but in a country like India where
literacy rate is not very high and people are not aware even of the fundamental rights,
they, knowing laws related to harbour seems to be a distinct reality.

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