CODE OF CRIMINAL PROCEDURE, 1973

PROJECT TOPIC:-

Trial of Offences Committed Outside India

Group Project Submitted by:-

 Shayon Sen, Roll no. 177/18
 Abhishek Bindal, Roll no. 183/18
 Jainender Singh Kataria, Roll no. 192/18
 Sampark Kohli, Roll no. 202/18

Group Project Submitted to:-

Professor Sanjeev Sharma
 ACKNOWLEDGEMENT

We deem it our proud privilege to express our indebtedness and sincere thanks to all those
who have in various ways, helped us in the successful completion of the project titled ‘Trial
of Offences Committed Outside India’ and without their invaluable help this project would
not have been a reality.

We are extremely thankful to Professor Sanjiv Sharma and Professor Sangita Bhalla, who
were a constant source of knowledge and inspiration at all levels throughout our project and
provided a lot of guidance in the fulfillment of project.

Finally, we express our most sincere gratitude to our parents and our friends for supporting
and encouraging us to do this project and helping us to complete it with a lot of efficiency
and on time.
 TRIAL OF OFFENCES COMMITTED OUTSIDE INDIA

Section 177 to 189 contained in Chapter XIII, Crminial Procedure Code, 1973 (CrPC)
enunciate the general principles for determining which shall be the proper Court to inquire
into or try an offence. The basic general rule is that, in the context of local jurisdiction,
Section 177 provides that Ordinarily every offence is to be inquired into or tried by a Court
1
within whose local jurisdiction it was committed.

However, when the offence has been committed outside the territorial jurisdiction of India, it
is then dealt under a different provision of CrPC, under Section 188, for the purpose of
inquiring into or trying the offence that has been committed outside India.

Section 188 is as follows :-

188. Offence committed outside India. When an offence is committed outside India-

(a) by a citizen of India, whether on the high seas or elsewhere; or

(b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be
dealt with in respect of such offence as if it had been com- mitted at any place within India at
which he may be found:
Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no
such offence shall be inquired into or tried in India except with the previous sanction of the
Central Government.

Earlier, when any offence was committed in Jammu & Kashmir, it would be consider as an
offence committed outside India because CrPc is applicable to whole of India except Jammu
& Kashmir as given in Section 1(2). The result was that if a citizen of India, whether he is a
resident of that State or of some other State in India, commits an offence in Jammu, he may
be dealt with at any place in any other State of India where he may be found, but no such
offence shall be inquired into or tried in India except with the previous sanction of the Central
Government.

1
R.V. Kelkar’s Criminal Procedure, p 203, ( Eastern Book Company, 6th Edition, Reprinted 2020)
Current provisions regarding commission of an offence in Jammu & Kashmir

However, in 2019, The Constitution (Application to Jammu & Kashmir) Order 2019,
(C.O. 272) was issued under Article 370, which gave special status to J&K, which superseded
the Constitutional (Application to Jammu and Kashmir) Order, 1954. The order stated that all
the provisions of the Indian Constitution applied to Jammu and Kashmir. Later on, the
Cabinet also approved the Central Acts in the Union Territory under Section 952 of the
Jammu and Kashmir Reorganisation Act, 2019. As a result, 37 central laws which were not
applicable to the union territory will now be applicable. This include various central laws
such as The Indian Penal Code, 1860, Code of Civil Procedure, 1908, Criminal Procedure
Code, 1973, Representation Of People Act, 1950 etc.3

Coming back to Section 188, we need to make it clear that Section 188 is not governed or
controlled by the preceding Sections 178 to 187. This is amply clear from the non-obstante
clause –“Notwithstanding anything in any of the previous sections…” On the other hand,
Section 188 controls and governs the provisions contained in section 178 to 187.

Why is a Sanction required?

The object of requiring sanctions of the Central Government appears to be to prevent the
accused person from being tried over again for the same offence in two different places. This
object is to secure by refusing to extradite the offender if he is wanted for being tried in a
foreign country subsequent to his trial in an Indian Court, or by refusing to sanction a
prosecution against him if he has been already tried in a foreign country in respect of the
same offence.

On the other hand, if a person has been convicted and sentenced to nominal punishment or
has been acquitted after a colourable trial in a foreign Court, and if he is afterwards found
2
All Central laws in Table -1 of the Fifth Schedule to this Act, on and from the appointed day, shall apply in the
manner as provided therein, to the Union territory of Jammu and Kashmir and Union territory of Ladakh.
3 th
5 Schedule, THE JAMMU AND KASHMIR REORGANISATION ACT, 2019
here in India, the Central Government might give the sanction to prosecute him herein an
Indian Court for the same offense.

The flexible rule regarding the sanction for the prosecution prevents a person from being
tried twice for the commission of the same offense and at the same time ensures that the
person is not able to take advantage of a sham or colourable trial in a foreign country in order
to avoid being tried here for that offence. Therefore, it is quite essential, that the Central
Government should take into consideration all the aspects of the case before granting
sanction under Section 188.

The proviso to Section 188, however, has caused a lot of conflicting decision between various
Court Judgement. For instance, in the case of Mohd. Sajeed K. v. State of Kerela4, the judge
differed with another Judge’s opinion in the case of Samarudden v. Director of Enforcement5
(where it was held by the Judge that, the Court had no jurisdiction to direct investigation or
trial of a crime committed by a person in a foreign country without the sanction of the Central
government.), but the Judge in Mohd. Sajeed Case said that the stage prior to the framing of
charges is inquiry and the stage after framing of charges is trial. The Court further ruled that
what is prohibited in the proviso to Section 188 is only inquiry or trial without the previous
sanction of the Central Government and not investigation by the police for the purpose of
collection of evidence.

(2011) 9 Supreme Court Cases 527 : (2011) 3 Supreme Court Cases (Cri) 772

4
1995, Cri LJ 3313 (Ker)
5
1995 Cri LJ 2825 (Ker)
 In the Supreme Court of India

(BEFORE ALTAMAS KABIR, CYRIAC JOSEPH AND S.S. NIJJAR, JJ.)

THOTA VENKATESWARLU .. Petitioner;

Versus

STATE OF ANDHRA PRADESH AND ANOTHER ….Respondents

SLP (Crl.) No. 7640 of 2008, decided on September 2, 2011

 STATEMENT OF FACTS

 The petitioner, Thota Venkateswarlu, was married to Respondent 2, Parvathareddy

Suneetha, on 27-11-2005 as per Hindu traditions and customs in Prakasam District,
Andhra Pradesh. At the time of marriage, Rs. 12 Lakhs in cash, 45 sovereigns of gold
and Rs. 50,000 as Adapaduchu Katnam is alleged to have been given to Accused 1 to
4, who are the husband, the mother –in-law and other relatives of the husband.
 According to Respondent 2, the petitioner left India for Botswana in January 2006
without taking her along with him. However, in February 2006, Respondent 2 went to
Bostwana to join the petitioner. While in Botswana, Respondent 2 is alleged to have
been severely ill-treated by the petitioner and apart from the above, various demands
were also made including a demand for additional dowry of Rs. 5 Lakhs.
 On account of such physical and mental torture not only by the petitioner husband,
but also by his immediate relatives, who continued to demand additional dowry by
way of phone calls from India, Respondent 2 addressed a complain to the
Superintendent of Police, Prakasam District, Andhra Pradesh, From Botswana and the
same was registered as Case (Crl.) No. 25 of 2007 under Section 498-A6 and 5067 of

6
498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or
the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for
a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this
section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her
to meet any unlawful demand for any property or valuable security or is on account of failure by her or any
person related to her to meet such demand.]
7
506. Punishment for criminal intimidation.—Whoever commits, the offence of criminal intimidation shall be
punished with imprisonment of either description for a term which may extend to two years, or with fine, or
with both; If threat be to cause death or grievous hurt, etc.—And if the threat be to cause death or grievous hurt,
or to cause the destruction of any property by fire, or to cause an offence punishable with death or
1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute,
unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend
to seven years, or with fine, or with both.
  the Indian Penal Code, 1860 together with Section 38 and 49 of the Dowry Prohibition
Act, 1961, by the Station house Officer, on the instructions of the Superintendent of
Police, Prakasam District.
 Upon investigation into the complaint filed by respondent 2, the Inspector of police,
filed a charge-sheet in CC no. 307 of 2007 in the court of the additional Munsif
Magistrate, Prakasam District, under Sections 498-A and 506 of IPC and Section 3
and 4 of Dowry Prohibition Act against the petitioner and his father, mother and
sister, who were named as accused 2,3 and 4. The learned magistrate took cognizance
of the aforesaid case and by his order dated 19-2-2007, ordered issuance of summons
against the accused.
 The cognizance taken by the learnt magistrate was questioned by the petitioner and
the other co-accused before the Andhra Pradesh high court in criminal petitions Nos.
3629 and 2746 of 2008 respectively and prayer was made for quashing of the same
under section 48210 of the code of criminal procedure.

8
3. Penalty for giving or taking dowry.—(1) ] If any person, after the commencement of this Act, gives or takes
or abets the giving or taking of dowry, he shall be punishable 2[with imprisonment for a term which shall not be
less than 3[five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the
value of such dowry, whichever is more]: —1[(1)] If any person, after the commencement of this Act, gives or
takes or abets the giving or taking of dowry, he shall be punishable 2[with imprisonment for a term which shall
not be less than 3[five years, and with fine which shall not be less than fifteen thousand rupees or the amount of
the value of such dowry, whichever is more]\:" Provided that the Court may, for adequate and special reasons to
be recorded in the judgment, impose a sentence of imprisonment for a term of less than 4[five years].] 5[(2)
Nothing in sub-section (1) shall apply to, or in relation to,— 1[(2) Nothing in sub-section (1) shall apply to, or
in relation to,—"(a) presents which are given at the time of a marriage to the bride (without any demand having
been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the
rules made under this Act;(b) presents which are given at the time of a marriage to the bridegroom (without any
demand having been made in that behalf): Provided that such presents are entered in a list maintained in
accordance with the rules made under this Act: Provided further that where such presents are made by or on
behalf of the bride or any person related to the bride, such presents are of a customary nature and the value
thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such
presents are given.]
9
4. Penalty for demanding dowry.—If any person demands, directly or indirectly, from the parents or other
relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with
imprisonment for a term which shall not be less than six months, but which may extend to two years and with
fine which may extend to ten thousand rupees: 2[4. Penalty for demanding dowry.—If any person demands,
directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may
be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but
which may extend to two years and with fine which may extend to ten thousand rupees\:" Provided that the
court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than six months.]
10
482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the
inherent powers of the High Court to make such orders as may be necessary to give effect to any order under
this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
  The high court by its order dated 27-8-2008, allowed criminal petition no. 2746 of
2008 filed by accused 2 to 4 and quashed the proceedings against them. However,
criminal petition No. 3629 of 2008 filed by the petitioner herein was dismissed. The
present Special leave petition is directed against order of the high court rejecting the
petitioner's petition under section 482 of CrPc and declining to quash complaint Case
No. 307 of 2007 against him.11

11
https://www.scconline.com/Members/NoteView.aspx?
enc=KDIwMTEpIDkgU0NDIDUyNyYmJiYmNDAmJiYmJlNlYXJjaFBhZ2U= ( Accessed at 11th January’ 2021 11:47
pm )
 ARGUMENTS ADVANCED

Arguments Advanced by the Counsel for Petitioner

The submissions made by the learnt counsel for the petitioner before this Court have raised
certain important question which warrant the attention of this court.

The counsel for the Petitioner submitted that in accordance with the complaint made by
Respondent 2 to the Superintendent of the Police, no grounds had been made out for carrying
on with the proceedings in India keeping in mind the provisions of Section 188 CrPC.
Section 188 CrPc says that :-

“188. Offences Committed outside India. – When an offence is committed outside India –

(a) by a Citizen of India, whether on the high Seas or elsewhere ;or

(b) by a person, not being such a citizen, on any ship or aircraft registered in India,

He may be dealt with in respect of such offence as if it had been committed at any place
within India at which he may be found :

Provided that notwithstanding anything in any of the preceding sections of this chapter,
no such offence inquired shall be into or tried in India except with the previous sanction
of the Central Government.”

The Learned Counsel urged that Section 188 CrPc recognises that when an offence is
committed outside India by a citizen of India, it would have to be dealt with as if such
offence had been committed in any place within India at which he may be found.
However, he laid stress on the proviso which indicates that no such offence could be
inquired into or tried in India except with the previous sanction of the Central
Government. He submitted that in respect of an offence committed outside India, the
same could not be preceded with without the previous sanction of the central government
and that, accordingly, if any of the offences was allegedly committed inside India, trial in
respect of the same could continue, but the trial in respect of offences committed outside
India could not be continued, without the previous sanction of the Central Government.
 Arguments advanced by the Counsel for Respondents

On behalf of the respondents it was urged that a part of the alleged offences relating to the
Dowry Prohibition Act did appear to have arisen in India, even at the initial stage when
various articles, including large sums of cash and jewellery given in dowry by the father
of respondent 2. It was submitted that since a part of the cause of action had arisen in
India on account of the alleged offences under section 3 and 4 of the Dowry Prohibition
Act, 1961, the Learned Magistrate trying the said complaint could also try the other
offences alleged to have been committed outside India along with the said offences. In
this case, the reference to ‘other offences’ has been given to the offence that was
exclusively committed in Botswana that is, cruelty by husband or a relative of husband
and criminal intimidation as covered under Section 498-A and 506, IPC.

Reliance was placed on the decision of this Court in Ajay Aggarwal v. Union Of India12,
Wherein it had been held that obtaining the previous sanction of the central government
was not a condition precedent for taking cognizance of offences, since sanction could be
obtained before the trial begins.

12
(1933) 3 SCC 609 : 1993 SCC (Cri) 961
 LEGAL PRINCIPLE INVOLVED

Whether in respect of a series of offences arising out of the same transaction, some
of which were committed within India and some outside India, such offences could
be tried together, without the previous sanction of the Central Government, as
envisaged in the proviso to Section 188 CrPc ?

Is sanction required for taking Cognizance of an offence committed outside India.

From the complaint made by respondent 2 in the present case, it is clear that the cases
relating to alleged offences under sections 498-A and 506 IPC had been committed
outside India in Botswana, where the petitioner and respondent 2 were residing. At the
best it may be said that the alleged offences under Sections 3 and 4 of the Dowry
Prohibition Act occurred within the territorial jurisdictions of the Criminal Courts of India
and could, therefore, be tried by the Courts in India without having to obtain the previous
sanction of the central government. However, we are still left with the question as to
whether in cases where the offences are alleged to have been committed outside
India, any previous sanction is required to be taken by the prosecuting agency,
before the trial can commence ?

 The language of section 188 CrPc is quite clear that when an offence is committed
outside India by a citizen of India, he may be dealt with in respect of such
offences as if they had been committed in India. The proviso, however, indicate
that such offences could be inquired into or tried only after having obtained the
previous sanction of the central government. As mentioned before, in Ajay
Aggarwal Case, It was held that sanction under section 188 CrPc, is not a
condition precedent for taking cognizance of an offence and, if need be, it could
be obtained before the trial begins. Even in his conferring judgement, R.M. Sahai,
J., observed as follows (SCC P. 628, Para 29) :-
“Language of the Section is plain and simple. It operates where an offence is
committed by a citizen of India outside the Country. Requirements are, therefore,
one – Commission of an offence; second – by an Indian citizen; and third – that it
should have been committed outside the country.”
 The proviso to Section 188, which has been extracted hereinbefore, is a fetter on
the powers of the investigating authority to inquire into or try any offence
mentioned into the earlier part of the section, except with the previous sanction of
Central Government. The fetters, however, are imposed only when the stage of
trial is reached, which clearly indicates that no sanction in terms of section 188
CrPc is required till the commencement of trial.
 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.
 Accordingly, up to the stage of taking cognizance, no previous sanction would be
required from the central government in terms of the proviso to Section 188 CrPc.
However, the trial cannot proceed beyond the cognizance stage without the
previous sanction of the central government. The magistrate is, therefore, free to
proceed against the accused in respect of offences having been committed in India
and to complete the trial and pass judgement therein, without being inhibited by
the other alleged offences for which sanction would be required.
 It may also be indicated that the provisions of the Penal code have been extended
to offences committed by any citizen of India in any place within and beyond
India by virtue of Section 4 thereof. Accordingly, offences committed in
Botswana by an Indian citizen would also be amenable to the provisions of penal
code, subject to the limitations imposed under the proviso of Section 188 CrPc.
 Having regard to the above, there was no reason to interfere with the high court's
decision to reject the petitioner's prayer for quashing of the proceeding in
complaint case No. 307 of 2007, the learnt magistrate, could however, may
proceed with the trial relating to the offences alleged to have been committed in
India. However, in respect of the offences alleged to have been committed outside
India, the Learned Magistrate shall not proceed with the trial without the sanction
of Central Government as envisaged in the proviso to Section 188 CrPc.
 JUDGEMENT OF THE SUPREME COURT

AS discussed above, the Supreme Court made the following points clear in the Thota
Venkateshwarlu Case :-

Sanction from the Central Government is not required for taking cognizance of an offence
committed outside India.

Once cognizance of an offence committed outside India has been taken by the Magistrate,
getting a sanction from Central Government becomes necessary before proceeding with the
Inquiry and Trial of the same offence.

In respect of offences, some of which are committed in India, and some outside India, the
Courts are in their rights to proceed with the trial of offences that were committed in India,
However, for proceeding with the offences that were committed outside India, sanction from
Central Government becomes necessary.