Legal Provisions of Section 216 of Indian Penal Code, 1860.
Harbouring offender who has escaped from custody or whose apprehension has been ordered:
This section penalises harbouring or concealing of an offender who has escaped from custody or whose apprehension has been ordered, and in a way it is an aggravated form of the offence dealt with under section 212 of the Code. The section says that whenever any person is either convicted of an offence or is charged with an offence, and is in lawful custody for that offence, and then escapes from such custody, or whenever a public servant while exercising lawful powers as such public servant orders the apprehension of a person, whoever with knowledge about such escape or such order for apprehension either harbours or conceals that person with the intention of preventing him from being apprehended, shall be punished with simple or rigorous imprisonment for a term extending up to seven years, and shall also be liable to fine, if the offence for which that person was in custody or was ordered to be apprehended is punishable with death; and shall be punished with simple or rigorous imprisonment for a term extending up to three years, with or without fine, if the offence is punishable with imprisonment for life, or imprisonment for ten years; and shall be punished with imprisonment for the description provided for the offence for a term extending up to one-fourth part of the maximum term of imprisonment provided for such offence, if the offence is punishable with imprisonment extending up to one year and not up to ten years. The section also gives an inclusive definition of the word ‘offence’ used in this section by saying that it includes either any act or any omission of which a person is alleged to have been guilty beyond the territory of India, which, if had he been guilty of it in India, would have been punishable as an offence, and for which he is under any extradition law or otherwise liable to apprehension or detention in custody in India, and every such act or omission shall be deemed to be punishable, for the purposes of this section, as if the accused had been guilty of it in India. An exception has also been appended in this section which states clearly that the section does not apply to cases of harbouring or concealment by the husband to his wife or vice versa.
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The section requires that there must be an escape from lawful custody for that offence of which any person has been convicted or with which he has been charged, or a public servant must have ordered under his lawful powers the apprehension of someone for an offence. The prosecution also must prove that the accused under this section knew about such escape or order of apprehension, and even then harboured or concealed him.
The word ‘harbour’ has been defined by section 52-A of the Code. The intention for so doing must be to prevent him from being apprehended. In Ajab v. State, certain persons who had been apprehended for gaming escaped from police custody. The Supreme Court held that section 216 did not apply because neither were the escapees convicted of any offence nor were they charged for the same, and that they should have been charged under section 224 of the Code.
The offence under section 216 is cognizable, bailable and non-compoundable, and is triable by magistrate of the first class.