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Uttarakhand High Court · body

2014 DIGILAW 289 (UTT)

NAZAKAT KHAN v. STATE OF UTTARAKHAND

2014-08-05

U.C.DHYANI

body2014
JUDGMENT U.C. Dhyani, J. (Oral) 1. Revisionist was directed to be charged for the offence punishable under Section 216 IPC by learned Sessions Judge, Nainital vide order dated 24.07.2014. Accordingly, charge was framed against the accused-revisionist for the said offence. Aggrieved against the same, present criminal revision is preferred by the revisionist. 2. The allegation against the present revisionist is that he harboured or concealed co-accused Intezar Hussain, whom he knew or had reason to believe to be offender of Section 376 IPC, Section 5 of POSCO and Section 3 of the Scheduled Castes and Scheduled Tribes Act (Prevention of Atrocities)Act, 1989, with the intention of screening him from legal punishment. 3. A first information report was lodged against accused Intezar Hussain on 09.03.2014 for the aforesaid offence. Witness Munna gave the statement under Section 161 Cr.P.C. that Intezar Hussain was implicated in a rape case. He was harboured by Nazakat Khan (revisionist) at his house. When Police came to the house of Nazakat Khan, he concealed Intezar Hussain. Instead of handing over Intezar Hussain to the police, he gave him shelter in his house. 4. Likewise, another witness Mohd. Aslam also gave the statement under Section 161 Cr.P.C. that he saw Intezar Hussain sitting in the house of Nazakat Khan in the night of 08.03.2014. When Mohd. Aslam inquired from Intezar Hussain as to what was he doing there in the night, he replied that he was having some necessary talks with Najakat Khan. The police, in a bid to arrest Intezar Hussain, visited Nazakat Khan’s house. Nazakat Khan did not disclose to the police that Intezar Hussain was in his house. When the police went away from Nazakat Khan’s house, Nazakat Khan permitted Intezar Hussain to flee away from his house. 5. Section 228 of Cr.P.C. deals with framing of charge. It says, among other things, that if, after such consideration and hearing as mentioned in the previous Sections, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence which is exclusively triable by the court, he shall frame in writing a charge against the accused. Before framing the charge, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. Before framing the charge, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. This is provided under Section 226 of the Code of Criminal Procedure, 1973. At the stage of Section 227 Cr.P.C. (discharge), the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of grounds would take within it’s field the nature of evidence recorded by the police or the documents produced before the Court which ex facie discloses that there are suspicious circumstances against the accused, so as to frame charge against him. If the evidence, which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged for cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. 6. In the instant case, a bare reading of the allegations leveled against the revisionist Nazakat Khan would reveal that the ingredients of offence punishable under Section 216 of IPC, are not, even prima facie, made out against him. The revisionist was not convicted of any offence. He was not in lawful custody for that offence. He did not escape from such custody. No public servant ordered any person to be apprehended for an offence, no body escaped, nobody knew of such escape or order for apprehension, and therefore, the essentials of Section 216 IPC were not made in the instant case. Yes, there was harbouring or concealment of an offender, which is punishable under Section 212 IPC. 7. Learned Sessions Judge, therefore, committed a mistake by framing the charge against the revisionist for the offence punishable under Section 216 of IPC. Learned Sessions Judge ought to have framed charge against the accused-revisionist for the offence punishable under Section 212 of IPC, instead of Section 216 of IPC. Section 212 IPC provides 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, shall be punished with imprisonment……………………. 8. The charge can be amended at any stage. Section 212 IPC provides 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, shall be punished with imprisonment……………………. 8. The charge can be amended at any stage. Section 212 of IPC is the genus, of which Section 216 is the species. Whereas the Order framing charge under Section 216 of IPC against the revisionist is set aside, it is directed that learned Sessions Judge shall frame a charge against the revisionist for the offence punishable under Section 212 of IPC. 9. Offence punishable under Section 212 of IPC is triable by the Magistrate of First Class and not by the Court of Session and therefore, appropriate steps would be taken by learned Sessions Judge to transfer the case of the present revisionist for trial to the Court of Chief Judicial Magistrate or the Judicial Magistrate 1st Class, having jurisdiction to try such case, as per clause (a) of Sub-Section (i) of Section 228 Cr.P.C. 10. The Criminal Revision is accordingly disposed of.