1. This is an application to ravise an order of the stationary First Class Magistrate, Moovattupuzha, passed in P. E. NO. 17 of 1134, on the file of his Coart overruling an objection of the accused that the prosecution against; him is premature. The charge is that the accused harboured an 'offender' and thereby committee an offence punishable under Section 207, Travanoore Penal Code, The preliminary objection raised before the Magistrate was that as the 'offender' concerned has not been apprehended or tried or convicted, the present prosecution is premature. It would appear that there are as many as four cases pending against that 'offender.' Apparently the learned Stationary Magistrate would seem to have been of the view that the objection was without substance and his order is that the question can be considered only at the close of the prosecution evidence. Reading the order as a whole it is, however, doubtful whether it was the consideration of the preliminary point raised that was deferred. The revision is directed against the order to proceed with the enquiry.
2. The prayer made before me was that the enquiry may be directed to be stayed until after the trial of the offender himself, Prima facie the request for stay is reasonable and supposed by precedents, In Palani Goundan v. Emperor, 1937 M. W. N. 21 K. S. Menon J. hell that the contention that the trial of the petitioner therein under Section 212, Penal Code, (Travancore Section 207) should be stayed until after the trial of the persons whom he is said to have harboured, had considerable force and accordingly directed the stay of the trial.
3. In Pariahan Singh v- Emperor, 1944 P. W. N. 521 Meredith J. of the Patna High Court took the view that until the 'offender' has been convicted of the offence he is alleged to have committed no prosecution can be launched under Section 212, Penal Code for harbouring him. That learned Judge expressed the same view in an unreported case cited with approval by ft Division Bench of the Patna High Court consisting of Fazl Ali C.J. and Ray J. in Bam Raj v. Emperor A.I.R. (33) 1946 pat. 74 : (47 Cr. L.J. 674). Fazl Ali C.J. who pronounced the judgment of the Beach said as follows with reference to that unreported case:
The point which arises in this case arose in another case in this Court, which related to the conviction of one Jang Bahadur, and Merelith J. dealt with it in this way : 'There is another aspect of the case which has been lost sight of by the Courts below. The prosecution was premature Section 212 says nothing about the harbouring of an absconder or an accused person. It renders punishable only the harbouring of a person whan it is known or there is reason to believe that he is the offender. The first thing to be proved in a case under this section is that an offender has been committed by the person harboured. Jung Bahadur's trial, however, has not yet been concluded. Until actually convicted, he is, like every one else, entitled to the presumption that he is innocent. Only the Court can say in due course whether he is actually an offender or not. The Court has not yet said that; and until the Court has pronounced upon the fact, a prosecution for harbouring him is clearly premature. The proper course would have been to hold up this case under 8 '215), until the conclusion of Jang Bahadur's trial, when it might have proceeded in the event of his conviction, but obviously not otherwise.
The conviction and sentence in the Division Bench case were accordingly set aside.
4. In this state of the authorities I think the prayer this the trial of the case against the petitioner be stayed until after the disposal of at least one of the case at least the concerned offender, is reasonable and I order accordingly.