Safiya Malik

The High Court of Kerala Single Bench of Justice C. Pratheep Kumar held that the committal to the Sessions Court and the taking of cognizance were not invalid merely because prior sanction under Section 188 of the Code of Criminal Procedure had not been obtained for an alleged offence committed abroad. The matter concerned a prosecution in which the accused faced trial for alleged rape of the de facto complainant in Kuwait, and the defence contended that proceedings in India could not continue without Central Government sanction. The Court directed that while such sanction is not a precondition at the cognizance stage, the trial cannot commence in India unless the requisite sanction under Section 188 CrPC is secured.

The proceedings arose from a suo motu criminal revision initiated by the High Court on a communication received from the District Judge regarding the committal of a case involving an offence alleged to have been committed outside India. The accused was facing prosecution for an offence punishable under Section 376 of the Indian Penal Code, based on a final report filed after investigation by the police. The allegation was that the offence occurred in a rented house situated in Kuwait.

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The police registered the crime on the basis of the statement of the defacto complainant, conducted investigation, and submitted the final report before the Judicial Magistrate. After compliance with statutory requirements under the Code of Criminal Procedure, the Magistrate committed the case to the Sessions Court, where charges were framed and explained to the accused, who pleaded not guilty.

At the stage when the matter was taken up for trial, the defence raised an objection to the jurisdiction of the Sessions Court on the ground that sanction under Section 188 of the Code of Criminal Procedure was not obtained, as the alleged offence occurred in a foreign country. A report was thereafter submitted to the High Court stating that the committal and subsequent proceedings were vitiated for want of sanction, leading to initiation of the present suo motu revision.

The Court first framed the issue for consideration as “whether the committal proceedings before the learned Magistrate and the subsequent proceedings before the Sessions Court, Manjeri, are vitiated for want of sanction under Section 188 Cr.P.C.”

The Court extracted Section 188 of the Code of Criminal Procedure and recorded that the provision permits inquiry and trial of offences committed outside India, subject to the proviso requiring previous sanction of the Central Government.

Relying on the decision of the Supreme Court in Thota Venkateswarlu v. State of Andhra Pradesh, the Court recorded that “the proviso to Section 188 … is a fetter on the powers of the investigating authority to inquire into or try any offence … except with the previous sanction of the Central Government.” The Court further noted the clarification that “the fetters, however, are imposed only when the stage of trial is reached.”

The Court also referred to the observation that “no sanction in terms of Section 188 is required till commencement of the trial,” and that “it is only after the decision to try the offender in India was felt necessary that the previous sanction of the Central Government would be required before the trial could commence.”

The Court recorded that the Supreme Court further clarified that “upto the stage of taking cognizance, no previous sanction would be required from the Central Government,” but “the trial cannot proceed beyond the cognizance stage without the previous sanction of the Central Government.”

Referring to a later Supreme Court decision, the Court noted that it reaffirmed the position that sanction under Section 188 Cr.P.C. is not required at the stage of cognizance, but is mandatory for commencement of trial. On this basis, the Court proceeded to examine the validity of the committal and cognizance already undertaken in the present case.

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The Court recorded that “the learned Magistrate was justified in committing the case to the court of sessions and the court of sessions is justified in taking cognizance of the offence. The trial of the case cannot be commenced without obtaining sanction under Section 188 of Cr.P.C. The suo motu revision is answered accordingly.”

Advocates Representing the Parties

For the Petitioners: Senior Public Prosecutor Smt. Bindu O.V.

For the Respondents: Sri. Benoj C. Augustine, Sri. U.M. Hassan, Smt. P. Parvathy, Sri. Rafeek V.K., Sri. Saijo Hassan, Sri. Vishnu Bhuvanendran

Case Title: Suo Motu v State of Kerala and Anr
Neutral Citation: 2026: KER:4417
Case Number: Criminal Revision Case No. 55 of 2017
Bench: Justice C. Pratheep Kumar