Principles with Respect to Sanction at Various Stages when Offence is Alleged to be Committed beyond the Jurisdiction of Indian Territory: A Critical Appraisal of Proviso to Section 188 CrPC

The substantive legal provision dealing with extraterritorial jurisdiction under the Penal Code, 1860[1] (IPC) are Section 3[2] and Section 4[3] and its procedural counterpart under the Criminal Procedure Code, 1973 (CrPC) is Section 188 CrPC[4].

The proviso to Section 188 casts an obligation to obtain previous sanction of the Central Government for inquiry and trial of offences committed outside India. It is a procedural impediment while conducting criminal trial under Section 188 CrPC. The rationale behind the same lies in the principle of double jeopardy.

One of the first judgments which discussed the ambit for the term “inquiry” within the meaning of Section 188 CrPC is Sanoop v. State of Kerala[5]. The Court gave a broad interpretation of the word “inquiry” and included certain stages of investigation also (arrest and detention) within its sweep, to attract the sanction requirement under the proviso to Section 188 CrPC. However, this judgment runs contradictory to the jurisprudence constante of the Supreme Court in Ajay Aggarwal  v. Union of India[6], Thota Venkateswarlu v. State of A.P.[7] and  Hardeep Singh v. State of Punjab[8].

A Single-Judge Bench in Remla v. SP of  Police[9]  by relying upon State of W.B. v. Jugal Kishore More[10] ,  Nikka Singh v. State[11]  and Narumal v. State of Bombay[12] , held that the proviso to Section 188 casts an obligation to obtain previous sanction of the Central Government to inquire into and try such person and that Section 188 has a message that for the pre-inquiry stage, no such sanction is needed and since the pre-inquiry stage substantially relates to investigation of the crime, no sanction is required for investigation.

Interpretation of the word “dealt with” under Section 188 CrPC

In order to understand whether sanction will be required under Section 188 CrPC for investigation, the words “dealt with” under Section 188 CrPC need detailed construction. The most significant Supreme Court judgment on this point is Delhi Admn. v. Ram Singh[13]. The Court broadly constructed the words “dealt with” under Section 188 CrPC to include within its sweep not only “inquiry” and “trial” but other aspects also. The words “dealt with” in Section 188 CrPC, must be held to include “investigation” also, apart from “inquiry” and “trial”. It was also held that the “words ‘dealt with’ in the main part cannot be restricted to ‘inquiry’ and ‘trial’ used in the proviso”. Also, on a conjoint reading of Section 188 CrPC and Section 4 IPC, it must cover the procedure relating to investigation and hence the scope and ambit of the main part of Section188 CrPC cannot be controlled by the proviso. In the backdrop of conflicting High Court judgments on this point, the Full Judge Bench of Samaruddin v. Director of Enforcement[14], following Delhi Admn. case[15] upheld  the views rendered in Remla case[16] and in Mohd. Shameer Ali v. State of Kerala[17]

Ambit of “inquiry” under Section 188 CrPC: At what stage of inquiry will the sanction be needed – Post-cognizance or pre-cognizance

The judiciary was embroiled in a huge controversy over the interpretation of the word “inquiry” for attracting the proviso to Section 188 CrPC. After a perusal of rationale rendered in Rabindra Rai v. State of Bihar[18], State of U.P. v. Lakshmi Brahman[19]  and Dalu Gour v. Moheswar Mahato[20] it can be clearly said that the moment the charge-sheet is filed before the court, the inquiry is said to commence under Section 2(g) CrPC[21]. It is not necessary that such inquiry shall commence only after a formal order is passed by the Magistrate. In order to understand what stage of inquiry will attract the proviso of Section 188 CrPC, it is relevant to note four important judgments.

Firstly, in C.V. Padmarajan v. Govt. of Kerala[22], the Court under para 20 held that application of judicial mind to the police report, deciding to take cognizance of offences will certainly be part of the “inquiry” which is barred unless the prior sanction of the Central Government has been obtained under Section 188 CrPC in respect of the offences committed outside India. In other words, the Court held that taking cognizance of an offence will attract the proviso to Section 188 CrPC.

Secondly, in para 27 of Ajay Aggarwal  v. Union of India[23], the Court held that prior sanction under the proviso to Section 188  CrPC is not a condition precedent for taking cognizance of the offence and that if need be, such sanction could be obtained after the trial begins. However, since the offence in this case was committed at Chandigarh in India and not outside India and therefore, Section 188 CrPC was not attracted and hence, is only an obiter dictum which cannot be treated as law laid down by the Supreme Court within the meaning of Article 141 of the Constitution of India[24].

Thirdly, a 3-Judge Bench of the Supreme Court in Thota Venkateswarlu v. State of A.P.[25] has held that bar in the conduct of “inquiry” by the Magistrate Court in relation to an offence committed outside India without obtaining sanction of the Central Government as per the proviso to Section 188 CrPC would apply only in respect of the “post-cognizance inquiries”. The Court by applying “purposive and contextual interpretation” held that only “inquiries” within the meaning of Section 2(g) which are to be conducted after the taking of cognizance and before the framing of the charges alone would come within the zone of prohibition of the proviso to Section 188 CrPC, thus partially overruling Padmarajan case[26].

Fourthly, the 5-Judge Bench in Hardeep Singh v. State of Punjab[27] held that all “inquiries” held after submission of the final report/charge-sheet, including the “inquiry” by the court in the matter of taking cognizance, will be also barred by the proviso to Section 188 CrPC however, the Court made it clear that so long as the above specific legal position in Thota Venkateswarlu case[28] is not specifically overruled by the Supreme Court, it is only to be held that even taking of cognizance is not barred in such cases.

From the abovementioned analysis, it can be said that the Courts have given a restrictive interpretation of the word “sanction” restricting it to post-cognizance stage and not to the investigation. The rationale for the same is twofold:

  • Firstly, as investigation is the very first stage that will determine the flow of criminal proceedings in later stages, the requirement for sanction at the first stage will derail the criminal process in totality. To ensure that investigation is not in any manner fettered by the restriction as per the proviso to Section 188 CrPC and to ensure full freedom on the police to conduct investigation, it is kept outside the zone of prohibition under the proviso to Section 188 CrPC.
  • Secondly, to prevent enormous and unrealistic burdens[29] on the Central Government to take decisions on the question of sanction in each and every case, which may arise in various parts of the country, the Court logically kept investigation outside the requirement of sanction from the Central Government.

Conclusion

Thus, from the above discussion, it can be succinctly said that the bar as per the proviso to Section 188 (requirement of sanction) can be only in relation to conduct of inquiry and trial and the said proviso cannot impose any restriction on the powers of the police to the conduct of investigation into such offences committed outside India. Investigation is kept outside the requirement of sanction of the Central Government under the proviso to Section 188 CrPC.


*3rd year student, BA LLB (Hons.), Maharashtra National Law University, Nagpur. Author can be reached at shreyatripathi.204@gmail.com.

[1] Penal Code, 1860

[2] Section 3 IPC. 

[3] Section 4 IPC. 

[4] Section 188 CrPC.  

[5] 2018 SCC OnLine Ker 1268. 

[6] (1993) 3 SCC 609. 

[7] (2011)  9 SCC 527. 

[8] (2014) 3 SCC 92.

[9] 1992 SCC OnLine Ker 323. 

[10] (1969) 1 SCC 440. 

[11] 1950 SCC OnLine Punj 126. 

[12] 1960 Cri LJ 1674: AIR 1960 SC 1329.

[13] (1962) 2 SCR 694.   

[14] 1999 SCC OnLine Ker 279. 

[15] Supra Note 13.

[16] Supra Note 9.

[17] 2019 SCC OnLine Ker 2778. 

[18] 1983 SCC OnLine Pat 155. 

[19] (1983) 2 SCC 372. 

[20] 1946 SCC OnLine Pat 175.

[21] Section 2(g) CrPC

[22] (2009) 1 ILR Ker 36 : 2009 (1) KHC 65.

[23] (1993) 3 SCC 609. 

[24] Article 141 of the Constitution of India

[25] Supra Note 7.

[26] Supra Note 22.

[27] (2014) 3 SCC 92 

[28] Supra Note 7.

[29]Mohd. Shameer Ali v. State of Kerala, 2019 SCC OnLine Ker 2778, para 34

Join the discussion

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.