Sanction U/S.188 Of CrPC Is Required For Commencement Of Trial & Not For Taking Cognizance Of Offence Which Took Place In Foreign Country: Kerala High Court

The High Court was considering a matter where the accused was facing trial in a case registered under Section 376 IPC.

The Single Bench of Justice C. Pratheep Kumar held, “In the light of the above decisions, it can be seen that at the stage of taking cognizance of an offence, sanction under Section 188 of Cr.P.C is not required, while it is required for commencement of the trial. Therefore, in the instant case, 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.”

Advocate Benoj C Augustin represented the Petitioner.

Factual Background

The case dates back to the year 2007, when the accused committed rape upon the complainant witness in the bedroom of a rented house in Kuwait. The police registered the crime on the basis of the statement given by the de facto complainant and filed a final report before the Judicial First Class Magistrate Court, Malappuram. The same was received by the Magistrate. After complying with the statutory requirements under Section 209 Cr.P.C, the Magistrate committed the case to the Court of Session. The Sessions Judge received the file and made over the same to the Additional Sessions Court. Thereafter, the Additional Sessions Judge framed a charge against the accused, read over and explained it to him, to which he pleaded not guilty.

When the Additional Sessions Judge took up the matter for trial, the defence counsel raised the question of the jurisdiction of the Sessions Judge to try the case in view of Section 188 of Cr.P.C. It was contended that since the offence took place in Kuwait, a foreign country, a previous sanction of the Central Government was required under Section 188 Cr.P.C. It was contended that the cognizance of the offence was taken without such sanction. When the matter was placed before the Judge in charge of the District, the matter was directed to be placed as Criminal Revision on the judicial side of the High Court, and the same was approved by the Chief Justice. It was in such circumstances that the suo motu proceeding was initiated under Section 401 of the CrPC.

Reasoning

The Bench explained that at the stage of taking cognisance of an offence, a sanction under Section 188 of Cr.P.C is not required, while it is required for the commencement of the trial.

As per the Bench, the Magistrate was justified in committing the case to the court of sessions and the court of sessions was justified in taking cognisance of the offence.

The Bench thus held that the trial of the case could not be commenced without obtaining a sanction under Section 188 of Cr.P.C.

Cause Title: Suo Motu v. State Of Kerala (Neutral Citation: 2026:KER:4417)

Appearance

Respondent: Advocates Benoj C Augustin, U.M. Hassan, P.Parvathy, Rafeek. V.K., Saijo Hassan, Vishnu Bhuvanendran, Senior Public Prosecutor Bindu O.V.

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