ORDER 1. Petition for bail. 2. Offence under Section 212 r/w 302 of IPC. 3. Mr. T.R. Ravi, learned counsel for the petitioner submits that petitioner is accused of an alleged offence under Section 212 r/w 302 of I.P.C. It is out and out a bailable offence. However, he was denied bail. It is against law. He is languishing in jail since 17.2.2014. 4. The learned Government Advocate (crl. side) submits that petitioner is a co-accused. He is concerned in a murder case. 5. I have anxiously considered the rival submissions and referred to the relevant provisions of law. 6. On 19.4.2013, G.G. Ramesh, a person of fame and name in Vellore was brutally murdered by a gang. There are many accused. It is alleged that petitioner, namely, Sathya/A7 carried A3/Sasi @ Sasikumar, a killer in his bike and helped him to escape. It is alleged that he did this with a view to screen A3 from legal punishment. 7. In this connection, A7 has been booked for an offence under Section 212 r/w 302 IPC. He surrendered himself before the concerned Magistrate. He was remanded to judicial custody. On 26.2.2014, he moved bail before the learned Principal Sessions Judge, Vellore in Crl.M.P. No. 949 of 2014. It was dismissed. That is how, now, A7, seeks bail before us. 8. The offence alleged as against the petitioner is under Section 212 IPC. 9. He surrendered himself before the concerned Magistrate. He was remanded to judicial custody. On 26.2.2014, he moved bail before the learned Principal Sessions Judge, Vellore in Crl.M.P. No. 949 of 2014. It was dismissed. That is how, now, A7, seeks bail before us. 8. The offence alleged as against the petitioner is under Section 212 IPC. 9. Section 212 I.P.C runs as under: “Section 212 Harbouring Offender.- Whenever an offence has been committed, whoever harbours or conceals a person whom he knows or has reasons 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 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.” 10. The crux of Section 212 IPC is aiding/helping a person involved in a crime. The sole object being screening him from legal punishment. Similar category of offence is offence under Section 201 I.P.C. It is concerned with screening the offence, while Section 212 I.P.C is concerned with screening the offender. The crux of Section 212 IPC is aiding/helping a person involved in a crime. The sole object being screening him from legal punishment. Similar category of offence is offence under Section 201 I.P.C. It is concerned with screening the offence, while Section 212 I.P.C is concerned with screening the offender. Both Section 212 and 201 I.P.C are common with respect to mens rea (guilty mind), namely, knowledge of the principal offence having been committed and it is done to screen him from legal punishment. Otherwise he will be a normal person like one, who helps other, like a good Samaritan, without knowledge of any criminality. The petitioner must know that he was carrying a killer in his bike and it is to help him to escape from legal punishment. 11. Section 212 IPC may be committed with reference to any offence, may be a murder or hurt or even a property offence. The offence has been made cognizable. Punishment depends on the type of the principal offence with reference to which an offence under Section 212 IPC has been committed. 12. In the Code of Criminal Procedure, in the first schedule, an offence under Section 212 IPC has been dealt with as under: Section Offence Punishment Cognizable or non-cognizable bailable or non-bailable By what Court triable 212. Harbouring an offender if the offence be capital Imprisonment for 5 years and fine Cognizable Ditto Magistrate of the First Class If punishable with imprisonment for life or with imprisonment for 10 years Imprisonment for 3 years and fine Ditto Ditto Ditto If punishable with imprisonment for a quarter of the 1 year and not for 10 years Imprisonment for longest term, and of the description, provided for the offence, or fine, or both Ditto Ditto Ditto 13. In bailable offences bail can be sought for under Section 436 Cr.P.C. It runs as under: “436. In bailable offences bail can be sought for under Section 436 Cr.P.C. It runs as under: “436. In what cases bail to be taken.-(1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at, any, time-, while-in, the custody of such officer or at any stage of the proceeding before such court to give bail, such person shall be released on bail: Provided that such officer or court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided: Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of section 116 (or section 446A). (2) Notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the court or is brought in custody and any such refusal shall be without prejudice to the powers of the court to call upon any person bound by such bond to pay the penalty thereof under section 446.” 14. Thus, it is clear that an offence under Section 212 IPC is made cognizable. It is triable by a First Class Magistrate. So it need not be committed to Court of Sessions because no sessions offence is involved (See Section 209 Cr.P.C). It is made bailable, whatever might be the nature of the principal offence and magnitude of the punishment prescribed therefor. 15. Section 436 Cr.P.C deals with grant of bail in bailable offences. Section 437 Cr.P.C deals with grant of bail in non-bailable offences. They were exercised by Magistrates. Section 439 Cr.P.C deals with similar power of this Court and Sessions Court. Sections 436 , 437 and 439 all comes after jail. Arrest may be by police (See Sec.41 Cr.P.C). It may be also by the Court by accepting the surrender of the accused (See Sections 436 , 437 Cr.P.C). 16. They were exercised by Magistrates. Section 439 Cr.P.C deals with similar power of this Court and Sessions Court. Sections 436 , 437 and 439 all comes after jail. Arrest may be by police (See Sec.41 Cr.P.C). It may be also by the Court by accepting the surrender of the accused (See Sections 436 , 437 Cr.P.C). 16. The basic characteristic feature of a bailable offence and non- bailable offence is that in case of bailable offence, bail is a matter of right. Infact, it is the duty of the learned Magistrates and learned Sessions Judges to inform the accused involved in a bailable offence that he is entitled to go on bail and elicit whether he is ready to offer bail. Non bailable-offence does not mean not bailable. It is also bailable, but opportunity must be given to the prosecution and then Court has to consider seriousness etc., to find out a prima facie case to take a decision whether to grant bail or deny him bail. 17. Now, it is basic and elementary that for an offence under Section 212 IPC, a Magistrate is entitled to grant bail. Neither he nor the Sessions Judge need not be alarmed by reading Section 302 IPC together with an offence under Section 212 IPC by the prosecution. Thus, from the above, it is seen that bail in a bailable offence is made as a matter of right. Deferring grant of bail to a person involved in a bailable offence will arise only when he refuses to offer bail. 18. Now, reading the order of learned Principal Sessions judge, Vellore, it is seen that the learned Sessions Judge has denied him bail not on the ground that he has refused to go on bail or refuse to offer bail. That also will not arise in this case because he himself has applied for bail. Learned Sessions Judge seems to have frightened because of making Section 212 IPC r/w Section 302 I.P.C. But the learned Sessions Judge ought not to have been carried away by such kind of adding. He should be carried away only by the language of the law. For him the only guidance is law and nothing more than that. 19. The learned Sessions Judge is expected to administer justice only in accordance with law. He must read the provision of law and apply it to the facts of the case. He should be carried away only by the language of the law. For him the only guidance is law and nothing more than that. 19. The learned Sessions Judge is expected to administer justice only in accordance with law. He must read the provision of law and apply it to the facts of the case. And ignore other things. In this case, factually, an offence under Section 212 I.P.C alone will apply. That is what the case of the prosecution also. This adding, reading together Section 302 I.P.C with Section 212 I.P.C are just adding a flavour by the prosecution. That is all. It is fit enough to be ignored. 20. Article 21, Constitution of India is India’s Magna Carta of England and Bill of Rights of America. In fact, our Article 21 is far more better than the said English and American Charters of Civil Liberty. Article 21, Constitution of India guarantees that ‘no one shall be deprived of his life or liberty except by procedure established by law’. Judicial orders in accordance with procedure established by law are exception to this fundamental right guaranteed by the Constitution of India. But, the procedure should be ‘fair, reasonable and equitable’ (see Menaka Gandhi v. Union of India AIR 1978 SC 597 : (1978) 1 SCC 248 : LNIND 1978 SC 25) 21. As regards an offence under Section 212 IPC, the procedure prescribed under Code of Criminal Procedure is to treat it as a bailable offence. (see Section 436 Cr.P.C and the first schedule to the Code). 22. In this case, now the petitioner is in jail not in accordance with the procedure established by law. His detention after denial of bail is as against law. 23. Judicial power and discretionary power conferred upon the judicial bodies under the Code or under statutes has to be exercised in accordance with law, as mandated in the concerned enactment, in this case, it is Code of Criminal Procedure. None on the earth can exercise power de hors the law. No one is above law. Power must be exercised by all as per law. Otherwise it will be arbitrary exercise of power. Liberty of an individual has to be zealously guarded. It is entrusted to the judges. 24. A man is in jail, denied of bail, when he is entitled to go on bail. Man is not for bread alone. No one is above law. Power must be exercised by all as per law. Otherwise it will be arbitrary exercise of power. Liberty of an individual has to be zealously guarded. It is entrusted to the judges. 24. A man is in jail, denied of bail, when he is entitled to go on bail. Man is not for bread alone. A person’s honour is at stake. In this regard, not only Judges, lawyers, who are officers of court as defenders of civil liberty having to play a meaningful role in upholding the majesty of justice and Rule of Law. Both the Judges and Lawyers are wheels of chariot of justice. It is the sacred, solemn duty of the defence lawyers to defend the accused persons in accordance with law. It is their constitutional duty (see Article 22(1) Constitution of India). It includes bail them out when they are incarcerated in bailable offences. 25. Mechanical and blind folded orders always militates against basic, fundamental freedom guaranteed to the citizens and others in Article 21, Constitution of India. They are anathema and affront to freedom loving people. 26. In my considered view in the few lines in Article 21 of the Indian Constitution, the entire soul of our Constitution rests. It is to be followed by observance and not to be breached. 27. The learned Sessions Judges and judicial officers, who deal with the liberty of the individuals must bear in mind that liberty of the individuals is in their hands. We are also wedded to the Anglo-Saxonic Criminal Jurisprudence. However an accused may be wicked or worst, he too is entitled to the protection/benefits of law. ‘A man is presumed to be innocent till his guilt is proved to the hilt’. ‘His such right of presumption of innocence itself is his basic human right’. Because, he is involved in a criminal case, he is not denude of his basic freedom, statutory rights, such as provided in Section 436 Cr.P.C. 28. In view of the foregoings, petitioner cannot be denied bail. He is bound to be allowed to remain at large. 29. Now, it is, ordered as under: (i) Bail granted. (ii) He shall execute his own bond for Rs. 5000/- (Rupees Five Thousand only) to the satisfaction of the Judicial Magistrate No. IV, Vellore. (iii) He shall appear before the respondent police as and when required for interrogation. Ordered accordingly.