K R EASWARAMURTHI GOUNDAN Vs. KING-EMPEROR

JUDGEMENT

(1.) THE appellant, a wealthy landowner, merchant and banker with large interests in Tiruppur, where he resided, and other places in the Province of Madras, was charged along with ten other persons under Section 216 of the Indian Penal Code with the offence of "harbouring" two persons who were suspected of having committed a murder on or about March 8, 1940. THE murdered man was Muthu Goundan, of Othuvillaipudur. THE police formed the opinion that the murder was committed by four persons, all of them Valayans, a low tribe among the depressed and criminal classes of Madras, aided and abetted by one R. V. I. Goundan, the father-in-law of the appellant. Two of the four Valayans are the persons whom the accused was said to have "harboured". THEse men, along with R. V. I. Goundan, being subsequently tried for the murder or abetment were acquitted. Of the eleven men later charged with "harbouring", ten including the appellant were convicted by the Sub-Divisional Magistrate who tried the case, the appellant being sentenced to six months' rigorous imprisonment and a fine of Rs. 1,000, with a further three months' rigorous imprisonment in default of paying the fine. On appeal, the Sessions Judge set aside all the convictions and sentences. On a further appeal by the prosecution from the orders of acquittal, Horwill J. , who heard the appeal in the High Court of Madras, confirmed all the acquittals except that of the appellant; as to him, the Judge restored the conviction and sentence passed by the Sub-Divisional Magistrate. Special leave to appeal was granted to the appellant by His Majesty in Council. In the result, as will appear later, their Lordships arrived at the opinion, on the conclusion of the arguments, that the appeal should be allowed on the ground that there was no evidence admissible in law to prove the essential foundation of the case for the prosecution, namely, that any order had ever been made for the arrest of the two men said to have been " harboured. " In view of the decisive character of this objection to the conviction, it will be enough here to summarise as shortly as possible the material facts and to outline the course which the proceedings below took. First, however, the terms of Section 216 must be set out. That section is in the following terms : Section 216. . . 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 . . . 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 the offence for which the person. . . is ordered to be apprehanded 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 ;. . .

(2.) THE section requires, if the offence is to be established, first, that there has been an order for the apprehension of a certain person as being guilty of an offence, secondly, knowledge by the accused party of the order thirdly, the harbouring or concealing by the accused of the person with the intention of preventing him from being apprehended. THE character of a warrant of arrest Is defined in Section 75 of the Code of Criminal Procedures 1898, as follows : Section 75. (1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the! presiding officer, or in the case of a Bench of Magistrates, by any member of such Bench, and shall bear the seal of the Court. (2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed. . . .

(3.) THE ten persons charged together with the appellant were (1) the pattagar or proprietor of an estate at Palayakottai, in the grounds of which the two suspected Valayans were eventually arrested, and eight other persons who were servants of the pattagar, the appellant and another person said to have assisted the appellant. THE appellant was arrested on September 29, 1940, the pattagar and the others arrested with him having teen arrested on August 23, 1940. THE charge against the appellant was in due course framed by the Sub-Divisional First Class Magistrate of Coimbatore. It was dated January 18, 1941, and was in the following terms :