1. [His Lordship after narrating the facts of the ease proceeded :] This application is made by the accused, and he prays, first, that the proceedings against him should be quashed, and secondly, in case the proceedings were not quashed, the order of transfer made by the District Magistrate without notice to him should be set aside, and the case should be sent back to the Sub-Divisional Magistrate, N.D.
2. It is urged on behalf of the accused that no offence is committed by the pleader under Section 216, firstly, on the ground that the warrant was not issued in the exercise of the lawful powers of the First Class Magistrate, and, secondly, that the accused did not harbour or conceal Ramaji with the intention of preventing him from being apprehended. It is urged that the warrant of arrest against Ramaji, Ex. 15, issued on August 24, 1926, was illegal as the Magistrate had no jurisdiction to take cognizance of the offence of murder under Section 190, Clause (e), of the Criminal Procedure Code. The First Class Magistrate was trying the complaint of Danava against the Police Jamadar and four other persons for a charge of murder of her mother-in-law Akkava. The learned Magistrate held a preliminary inquiry and came to the conclusion that the offence was committed not by the Jamadar but by the complainant Danava herself with the assistance of Kamaji. He, therefore, must be considered to have taken cognizance of the offence of murder under Section 502 against Danava and Ramaji under Section 190, cl (c), of the Criminal Procedure Code, and as the learned First Class Magistrate of Chikodi had not been specially empowered to take cognizance of a case under Section 190, Clause (c), and had, therefore, no jurisdiction to take cognizance of the offence of murder against Danava and Ramaji, he could not issue a warrant against Ramaji under Section 204 of the Criminal Procedure Code which refers to a Magistrate taking cognizance of an offence.
3. It is urged on behalf of the Crown that there were two warrants against Ramaji, one for offences under Sections 411 and 414, dated August 22, 1926, and another, Exhibit 15, dafced August 24, 1926, with reference to the charge of murder, and, therefore, even if there was any illegality in the issue of the warrant with regard to the charge of murder, there was an outstanding warrant against Ramaji for offences under Sections 411 and 414 issued by the Magistrate in the exercise of his lawful powers within the meaning of Section 216. We find, however, that Hanmant, Exhibit 1 the Police Head Constable, has admitted in his deposition that he called the accused and asked him to produce Ramaji as there was a warrant against him for the charge of murder. No reference was made to the warrant for the offences under Sections 411 and 414 which is now relied upon on behalf of the Grown. The application for bail, Exhibit 17, made by the accused on behalf of Ramaji refers only to the offence under Section 302. It is clear, therefore, that the accused had no knowledge of the issue of a warrant under Sections 411 and 414. the accused had known that there was also another warrant against Ramaji under Sections 411 and 414, the offences would have been mentioned in the application for bail. It is clear, therefore, that the accused did not know of the order of apprehension with regard to the charges under as. 411 and 414, and though the accused knew of the order of apprehension with regard to the charge of murder, that order, in our opinion, was not in the exercise of the lawful powers of the Magistrate as he had no jurisdiction to issue such warrant under Section 190, Clause (e), and Section 204 of the Criminal Procedure Code. This ground alone would be sufficient to show that no offence under Section 216 is committed.
4. The next question is whether the accused harboured or concealed Ramaji with the intention of preventing him from being apprehended. The Police Head Constable admits in his statement that when he asked the accused-pleader to produce Ramaji as there was a warrant against him for the offence of murder, the accused said that Ramaji had come to him but that he had not brought the pleader's fees, that he was sent to fetch the fees, and that he would produce him after he brought the fees. This would clearly show that the accused had no intention of harbouring or concealing Ramaji with the intention of preventing him from being apprehended, on the contrary, he intended to surrender Ramaji to the Magistrate on his arrival after bringing his fees. We think, therefore, that the requisite intention necessary for a conviction under Section 216 is excluded by the admission of the Head Constable Hanmant, Exhibit 1.
5. It is suggested that Ramaji was In the house of the accused and that the accused falsely said that he had gone to bring the fees, but if there was any truth in that suggestion, it was quite open to the Police to call upon the accused to allow the Police free ingress to his house, and to afford all reasonable facilities for a search in his house under Section 47 of the Criminal Procedure Code. On the evidence in this ease, the Police Jamadar did not suggest to the accused that Ramaji was in his house, nor did he call upon him to allow free ingress to his house or to allow him reasonable facilities for a search therein. We think, therefore, that the requisite ingredients to constitute an offence under Section 218 are not; proved, and are excluded by the admissions of the Head Constable, Exhibit 1.
6. In this view of the case, we think that there should, not be any further protraction of the proceedings which are pending against the accused. The High Court was power at an interlocutory stage to quash the proceedings if a clear case is made out. Ordinarily, the High Court would not interfere at an interlocutory stage and interfere with the proceedings pending before a Magistrate, but when it appears that the accused is not guilty on the face of the proceedings, the High Court will interfere even at an interlocutory stage in order to prevent further harassment of the accused. See (handi Per shad v. Abdur Rahman I.L.R(1894) Cal. 131. Choa Lal Dass v. Anant Pershad Misser I.L.R (1897) Cal. 233. Hari Charan Gorait v. Girish Chandra Sadkukhan I.L.R (1910) Cal 68. Queen-Empress v. Nageshappa I.L.R (1895) Bom. 543. Re Kuppuswami Aiyar I.L.R (1915) Mad. 561. Ramanathan Chettiyar v. Subrahmanya Ayyar I.L.R (1924) Mad. 722.
7. We would, therefore, make the rule absolute and quash the proceedings.
8. In this view of the case, it is not necessary to consider the other prayer with regard to the transfer of the case.
9. This is an application by a pleader, Mr. Chandavarkar practising at Chikodi in the Belgaum District for the quashing of the proceedings in a case pending against him under Section 216 of the Indian Penal Code on the ground that the prosecution evidence does not disclose the commission of any offence, or in the alternative for its transfer. [His Lordship after referring to the facts of the case, continued :]
10. The order of the District Magistrate does not give any reasons for the transfer as required by Section 528, nor was any notice given to the petitioner. If. has frequently been held by this Court that n case should not be transferred without notice to the parties. See In re Dand Hussan (1889) Cr. C. 460. In re Ratanji Premji (1889) Cr.C 474. In re Mahadhu (1892) Cr.C. 590. In re Krishna Anant Pai (1896) Cr. C. 877. Imperatrix v. Sadashiv I.L.R(1896) Bom. 549. and In re Nageshwar (1899) 1 Bom. L.R. 347. On the other hand, this rule has been relaxed in eases where the Magistrate himself asked for a transfer: cf. In re Hawaii Sakharam (1918) 21 Bom. L.R. 276. and Queen Empress v. Kuppumuthu Pillai I.L.R (1900) Mad. 317. and as regards the omission to record reasons for the transfer, it has been held to be only an irregularity in In the matter of the petition of Dukhi Kewat I.L.R(1906) All. 421.
11. The more important question in this case, however, is, whether the prosecution case discloses that any offence has been committed, The first point to notice is that under Section 216 of the Indian Penal Code, before the offence of harbouring can be committed it is necessary that a public servant, in the exercise of the lawful powers of such public servant, has ordered a certain person to be apprehended for an offence. In the present case, the warrant issued by the First Class Magistrate, Chikodi, was without jurisdiction, because, admittedly, he was not empowered to take cognizance of cases under Section 190(c) of the Code of Criminal Procedure, upon his own knowledge or suspicion that an offence has been committed. In order to meet this objection, it is argued by the Government Pleader that there was already a warrant regularly issued upon a Police report against Ramaji for an offence under Sections 411 and 414. But throughout the deposition of the Police officer in this casa there is no reference to this other warrant and it appears that the pleader was expressly told that Ramaji. was to be arrested on a warrant on a charge of murder. It was again contended that the warrant against Ramaji was issued under Section 190(b) upon a Police report. Bud, this position is untenable as the Police report was Akkava had committed suicide. It must, therefore, be held that the warrant issued by the First Class Magistrate against Ramaji on a charge under Section 302 was without jurisdiction. Apart from this, in order that an offence under Section 216 should be committed, it is necessary that the person harbouring the offender must be harbouring him with the intention of preventing him from being apprehended, and this is an ingredient, which, on the prosecution evidence, is lacking in the present case. It would appear from, the deposition of the Police Jamadar himself that he went to the pleader's house and asked if Ramaji was there, and the pleader replied that he had been there to consult him and had gone away to get the fees, and that on his return ho would hand him over to the Police. It may be mentioned that the ease of the petitioner is that when Kamaji returned with the money he told him to get into his motor with the object of taking him to the Magistrate and handing him over, but meanwhile he was arrested. It does not, therefore, appear that the pleader concealed the presence of Ramaji in his house with the object of preventing him from being apprehended, but, on the contrary, he promised to band him over to the police. In these circumstances, the evidence led by the prosecution does not show that any offence has been committed by the applicant.
12. The power of the High Court to interfere in pending proceedings in cases of this kind, where it appears that no offence has been committed, has been laid down in a number of cases : cf Chandi Pershad v. Abdur Rahman I.L.R (1894) Cal. 131, followed in Queen-Empress v. Nageshappa I.L.R (1895) Bom. 543. Re Kwppuswami Aiyar I.L.R (1915) Mad. 561. Rama-nathan Chettiyar v. Subrahmanya Ayyar I.L.R (1924) Mad. 722, and Hari charan Gorait v. Giraish Chandra Sadhukhan I.L.R (1910) Cal. 68.
13. In my judgment, therefore, on the prosecution evidence, no offence has been committed by the applicant pleader and no useful purpose would be served by allowing these proceedings, which have already lasted thirteen months, to be recommenced, and I am therefore, of opinion that the proceedings should be quashed and the petitioner discharged.