Legal Provisions of Section 211 of Indian Penal Code, 1860.
False charge of offence made with intent to injure:
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This section penalises false charge of offence made with intent to injure another. There are two parts of the section. According to the first part, whoever, with the intention of causing injury to any person, either institutes any criminal proceeding against that person or causes the same to be instituted against him or falsely charges any person that he has committed an offence with the knowledge that any just ground or any lawful ground does not exist for such proceeding or charge against that person, shall be punished with simple or rigorous imprisonment for a term extending up to two years, or with fine, or with both.
The second part to the section says that if such criminal proceeding is instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or more, shall be punishable with simple or rigorous imprisonment for a term extending up to seven years, and shall also be liable to fine.
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The prosecution must prove that the accused had intention to cause ‘injury’ which according to section 44 of the Code denotes any harm whatever illegally caused to any person, in body, mind, reputation or property. The accused must either institute any criminal proceeding himself against that person or cause the same to be instituted against him. If such is not the case, then he must falsely charge any person with having committed an offence.
In all cases it must be established that the accused had knowledge that there was no just or lawful ground for such proceeding or charge, as the case may be, against that person. If such criminal proceeding is instituted on a false charge of a capital offence or an offence punishable with life or seven years or upwards, the penalty is made more severe.
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Institutes or causes to be instituted any criminal proceeding
The accused must either institute the criminal proceeding himself or cause the same to be instituted. When he gets the law to move or puts the law in motion, he causes criminal proceeding to be instituted. ‘Institution’ is laying of an information before a magistrate. It may be done before a police officer also who has power to investigate with a view to institute the criminal proceeding. Criminal law may be set in motion either by giving information to the police, or by lodging a complaint with a magistrate.
A proceeding under section 107, Code of Criminal Procedure, 1973 is a criminal proceeding within the meaning of this section. But answering question put by a police officer investigating a matter under section 161, Code of Criminal Procedure, 1973 is not instituting or causing to institute criminal proceeding.
Falsely charges any person with having committed an offence
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The accused must falsely charge a person before a person competent under law to punish the offender. It may be in the form of a complaint before a magistrate or a report to a police officer of a cognizable offence. In case of a report to a police officer, it has to be with respect to a cognizable offence only because the police does not have power to take any proceeding in cases of non-cognizable cases without the orders of a magistrate.
On the other hand, the false charge before a magistrate may be of any offence, cognizable or non- cognizable. The expression ‘false charges’ must be held to mean false accusations before a competent authority. The Supreme Court has observed in Santokh Singh v. Izhar Hussain, that this expression does not mean giving false evidence as a prosecution witness against an accused during the course of a criminal trial. It refers to the original or initial accusation putting or seeking to put in motion the machinery of criminal investigation and not then seeking to prove the false charge framed in that trial. The words ‘falsely charges’ must be read along with the words ‘institution of criminal proceeding’.
The statement on oath falsely supporting the prosecution case against an accused, though not an offence under section 211, is punishable under sections 193 and 195 of the Code. Identification at a test parade cannot be held to be within the expression ‘falsely charges’ within the meaning of section 211 of the Code.
A proceeding for committal for contempt of court is not a criminal proceeding, but it may fall within the expression ‘falsely charges’ if based on allegations later proved to be false. So an application before the High Court with prayer of a contempt action under the Contempt of Courts Act, 1971, does amount to an offence under section 211 of the Code if the allegations in the application are false.
But a statement made to the police on a suspicion that a certain person has committed an offence does not fall within the words ‘falsely charges’ and is also not institution of a criminal proceeding within the meaning of this section even if the suspicion is proved to be baseless.
Knowing that there is no just or lawful ground for such proceeding or charge
The prosecution must establish that the accused knew that there did not exist any just or lawful ground for such proceeding or charge. The expression ‘there is no just or lawful ground for such proceeding or charge’ has been compared with ‘lack of reasonable and probable cause’ one of the essential requirements of the tort of malicious prosecution.
It has been felt that these two expressions have almost similar meaning. The expression under this section, therefore, means that at the time the accused instituted the criminal proceeding or falsely charged another he did not honestly believe that the person charged was guilty, and he had no justified basis to feel honestly that it was highly probable that he had committed that offence.
There may be a situation where someone may in good faith institute a charge which later on may turn other to be unfounded, or there may be an intention on his part to cause injury to his enemy and with such intention he may institute a criminal proceeding against him believing there were good grounds for the same. In either case he cannot be held guilty under this section because he did not know that there were no just or lawful grounds for such proceeding or charge.
If such criminal proceeding be instituted
The expression ‘if such criminal proceeding be instituted’ in the second para of the section has led the courts to interpret the section differently. The difference of opinion is because of the fact that only a court of session has jurisdiction, and a magistrate has no jurisdiction to try, certain offences under the second part. The Madras, Patna and Calcutta High Courts are of the view that where a charge of a cognizable offence has been made to the police against a particular person, this means institution of criminal proceeding against him.
But the Bombay and Allahabad High Courts feel that actual institution of criminal proceeding in a court on a false charge is necessary for the application of the latter part of the section, and if there is only a false charge made by the accused, even if the same may relate to an offence punishable with death, imprisonment for life, or imprisonment for seven years or more, only the first part of the section is applicable.
Section 195 (1) (b) (i), Code of Criminal Procedure, 1973 insists that a complaint in writing of the court before which the offence is committed, or of some other court to which such court is subordinate, is required for a prosecution under section 211, Indian Penal Code. Therefore, any other complaint cannot set the law in motion as far as section 211 of the Code is concerned.
A magistrate is bound to follow the procedure prescribed by section 340, Code of Criminal Procedure 1973 failing which a cognizance of an offence under section 211 is liable to be quashed. The Supreme Court is of the opinion that every false statement need not be taken cognizance of by the court because too frequent prosecutions will defeat the very object to the section. Proper balance must be maintained and judicial caution is essential.
The section requires that the prosecution must prove that the accused under this section must have known or had reason to believe that the person he was harbouring or concealing was an offender, and also that he was doing the same with the intention of screening him from legal punishment. Section 52-A of the Indian Penal Code, while defining the word ‘harbour’, says that except in section 157, and in section 130 in the case in which the harbour is given by the wife or husband of the person harboured, it includes supplying a person which shelter, food, drink, money, clothes, arms, ammunition or means of conveyance, or assisting a person by any means, whether of the same kind as those enumerated in this section or not to evade apprehension.
The Bombay High Court has held in Mir Faiz Ali v. State, that where the prosecution has failed to establish that the money had been paid for the specific purpose of screening the offender from legal punishment, the accused could not be held guilty under this section.
In Sanjiv Kumar v. State of H.P., the accused was alleged to have taken the main accused, who had committed murder, on his scooter. There was no material to show that the accused knew about commission of the said offence when he took the main accused along with him. The Supreme Court held that the ingredients for the offence of harbouring offender was not established and his conviction under section 212 was set aside.
In State of Tamil Nadu v. Nalini and others, the Supreme Court held that a wife cannot be charged for harbouring her husband merely because she was living in the house with him. However, those accused persons who came into the picture after the object of the criminal conspiracy, that is, assassination of a former Prime Minister of India, had been achieved, and they harboured and sheltered the main accused persons with full knowledge that they were involved in the assassination and also made efforts to destroy evidence were rightly convicted under section 212 of the Code.
In Sujith v. State of Kerala, the Kerala High Court held that interpretation of the word ‘offender’ in section 212 should be purposive. It does not mean ‘convicted offender’. Even if the main offender is left unpunished by the Court, the person who concealed or harboured an offender is not to be left unpunished if other ingredients of the section are established. The Heydon’s Rule of interpretation and purposive interpretation are same.
It is important to note that while harbouring an escaped prisoner of war is an offence under section 130, harbouring a deserter from the Army, Navy, or Air Force is an offence under section 136 of the Code.
The offence under section 212 is cognizable, bailable and non-compoundable, and is triable by magistrate of the first class.