In a significant clarification regarding the prosecution of crimes committed by Indian citizens on foreign soil, the Kerala High Court has ruled that previous sanction from the Central Government is not a prerequisite for a court to take "cognizance" of an offence. However, the Court emphasized that such sanction remains a mandatory requirement before the actual "trial" can begin.

The ruling, delivered by Justice C. Pratheep Kumar, settles a crucial procedural question: at what exact point does the "fetter" or restriction imposed by Section 188 of the Code of Criminal Procedure (CrPC) kick in?

The matter reached the High Court through a suo motu (on its own motion) criminal revision petition. The case involved an accused, Abhilash, who was alleged to have committed rape in Kuwait in June 2007. Following a statement by the survivor, the Kerala Police registered a crime at the Vazhakkad police station.

After completing the investigation, the police filed a final report before the Judicial First Class Magistrate Court, Malappuram. The Magistrate subsequently committed the case to the Court of Session, Manjeri, where it was assigned to the Additional Sessions Judge-I.

When the matter was taken up for trial in January 2017, the defense raised a jurisdictional objection. They argued that since the alleged offence took place in a foreign country (Kuwait), Section 188 of the CrPC mandated the "previous sanction of the Central Government." Because no such sanction had been obtained, the defense contended that the entire proceeding—including the Magistrate's decision to take cognizance and the subsequent committal to the Sessions Court—was void and illegal.

Faced with this legal hurdle, the Sessions Judge sent a report to the High Court, questioning whether the proceedings were vitiated (spoiled) due to the lack of sanction.

Section 188 of the CrPC deals with offences committed outside India by Indian citizens or on Indian-registered ships and aircraft. The "proviso" (a condition) to this section states:

"Provided that... no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government."

The core of the dispute was whether "taking cognizance" or "committing a case" falls under the umbrella of "inquiring into or trying."

Justice Pratheep Kumar examined the scope of Section 188 by relying heavily on established precedents from the Supreme Court of India. The Court referred to the landmark judgment in Thota Venkateswarlu v. State of Andhra Pradesh (2011) and the more recent Nerella Chiranjeevi Arun Kumar v. State of Andhra Pradesh (2021).

In the Thota Venkateswarlu case, the Apex Court had clearly demarcated the stages of a criminal proceeding. It held that while Section 188 acts as a "fetter" or a lock on the powers of the court, this lock only snaps shut when the stage of the trial is reached.

The High Court noted:

Investigation and Cognizance: The police can investigate, and the Magistrate can take cognizance of the offence based on the police report without any Central Government intervention.
Committal: The process of sending the case from a Magistrate to a Sessions Court (committal) is also permissible without sanction.
Trial: It is only when the court is ready to actually "try" the offender—meaning the commencement of the trial where evidence is recorded—that the sanction becomes an absolute necessity.

The Kerala High Court held that the Magistrate was perfectly justified in committing the case and that the Sessions Court acted within its rights by taking cognizance. The proceedings were not "void" as the defense had claimed.

However, the Court issued a clear directive for the road ahead:

"It is made clear that the trial of the case cannot be commenced without obtaining sanction under Section 188 of Cr.P.C."

The Court disposed of the revision petition by confirming that while the pre-trial stages were valid, the prosecution must now approach the Central Government to obtain the necessary sanction before the Sessions Court can proceed with the actual trial.

This judgment provides a practical roadmap for law enforcement and the judiciary. It ensures that the initial stages of justice—such as filing a charge sheet and a court acknowledging the crime—are not delayed by administrative paperwork. At the same time, it upholds the statutory requirement of government oversight for international legal matters before a person is put through a full-scale trial.

For legal practitioners, it serves as a reminder that the absence of sanction at the filing stage is not a ground for discharge or for quashing the case, but rather a procedural requirement to be fulfilled before the judge rings the bell for the trial to start.

Case Details:

Case Title: Suo Motu v. State of Kerala and Anr.
Case No: Crl. RC 55 / 2017
Court: High Court of Kerala
Judge: Justice C. Pratheep Kumar
Date of Order: January 19, 2026