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Judgment
Dr Venkata Jyothirmai Pratapa, J
The instant criminal petition under Section 482 of the Code of Criminal Procedure, 1973 (for short „Cr.P.C)/under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short „BNSS‟) has been filed by the petitioners/accused Nos.2 to 4, seeking quashment of proceedings pending against them in S.C.No.117 of 2024 on the file of Principal District Judge, Guntur, for the offences under Section 212 r/w 34 of IPC.
Heard Sri Jesu Ratna Kumar Nelaturi, learned counsel for the petitioners and Ms.K.Priyanka Lakshmi, learned Assistant Public Prosecutor on behalf of the State.
Learned counsel for the petitioners would submit that the petitioners herein are accused Nos.2 to 4, who are the mother, wife and brother of the accused No.1 respectively. Learned counsel for the petitioners would further submit that the case has been registered against the accused No.1 in S.C.No.117 of 2024 for the offences punishable under Sections 302, 201, 212 r/w 34 of IPC. The case against the petitioners/A-2 to A-4 is for the offence punishable under Section 212 r/w 34 of IPC. Learned counsel for the petitioners would further submit that the charge sheet would show that along with accused No.1, accused Nos.2 to 4 are also liable to be punishable under Sections 302, 201, 212 r/w 34 of IPC. But there is no iota of evidence against the petitioners regarding the offences punishable under Sections 302, 201, 212 r/w 34 of IPC. Learned counsel for the petitioners would further submit that to attract the offence under Section 212 of IPC, the persons who alleged to have been concealing the person who is involved in the crime, has knowledge about the crime or believed that the person is an offender, such concealment must be with an intention of screening the offender from legal punishment.
Learned counsel for the petitioners would further submit that accused No.3 herein is the wife of accused No.1 against whom the case under Section 212 is not maintainable, in the light of the exception under Section 212 of IPC. Learned counsel for the petitioners would further submit that there is no evidence on record to show that the petitioners having knowledge that the accused No.1 is an offender concealed him from legal punishment. Learned counsel for the petitioners finally submits that except the alleged confession made before the police by accused No.1, nothing is there on record to attribute anything against the petitioners.
Learned Assistant Public Prosecutor would submit that the confession of accused No.1 before the police would reveal that accused No.1 was in the protection of accused Nos. 2 to 4. Accused Nos. 2 to 4 having knowledge that accused No.1 is the offender with an intention of screening him from legal punishment protected him.
A perusal of Section 482 makes it clear that the Code envisages that inherent powers of the High Court are not limited or affected so as to make orders as may be necessary; (i) to give effect to any order under the Code or,
(ii) to prevent abuse of the process of any Court or, otherwise (iii) to secure ends of justice. A court while sitting in Section 482 jurisdiction is not functioning as a trial court, court of appeal or a court of revision. It must exercise its powers to do real and substantial justice, depending on the facts and circumstances of the case. These powers must be invoked for compelling reasons of abuse of process of law or glaring injustice, which are against the sound principles of criminal jurisprudence. Specific circumstances warranting the invocation of the provision must be present.
Considering the submissions made and fair look at the material placed on record, for the purpose of discussion, it is beneficial to extract the Section 212 of IPC hereunder:
“212. 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 with imprisonment — and if the offence is punishable with 1imprisonment 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.
“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.”
The accusations made against the accused No.1 is that he has committed murder of the deceased. The accusations made against the present petitioners are that they have harboured the accused No.1 to prevent the police to arrest him. As rightly put by the learned counsel for the petitioners, in the light of the exception made under Section 212 of IPC, accused No.3 could not be prosecuted for the offence under Section 212 of IPC, since accused No.1 is her husband. Coming to the case of accused Nos. 2 and 4, the prosecution has to prove that having knowledge about the crime, the accused Nos. 2 and 4, who are the mother and brother, harboured the accused No.1 to avoid the legal punishment.
As can be seen from the record, except in the alleged confession of accused No.1 before the police, there is no reference about accused Nos. 2 to 4 in the case. Needless to say that any confession of the accused before the police is inadmissible in evidence. Section 26 of Indian Evidence Act, lays down that no confession made by any person whilst he is in the custody of the police officer unless it is made in the immediate presence of Magistrate, shall be proved as against such person. Except the alleged confession before the police in the presence of V.R.O., nothing is there against the petitioners to connect them to the crime. Record further shows that there is an Extra Judicial Confession before V.R.O., by accused No.1, it does not reveal about the role of the present petitioners relating to the crime. In that view, continuing criminal proceedings against the petitioners is sheer abuse of process of law. This Court is inclined to quash the proceedings pending against the petitioner/accused Nos. 2 to 4 pending in S.C.No.117 of 2024 on the file of Principal District Judge, Guntur, for the offences under Section 212 r/w 34 of IPC.
In “State of Haryana v. BhajanLal 1992 Supp (1) SCC 335 ” the Apex Court considered in detail the powers of High Court under Section 482 to quash criminal proceedings or FIR. The Apex Court summarized the legal position by laying down the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint:
“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
In the light of aforementioned premises, this Criminal petition is allowed by quashing the criminal proceedings pending against the petitioners/accused Nos. 2 to 4 in S.C.No.117 of 2024 on the file of Principal District Judge, Guntur, for the offences under Section 212 r/w 34 of IPC.
As a sequel thereto, miscellaneous petitions pending, if any, shall stand closed.