Sanction U/S 188 CrPC Not Required As Part Offence Occurred In India: Kerala High Court Upholds Conviction In Sharjah Job Visa Fraud, Rape & Prostitution Case
The Court upheld conviction of accused who lured victim with fake Sharjah supermarket job, detained and raped her for three days, then forced her into prostitution.
Justice A. Badharudeen, Kerala High Court
The Kerala High Court has held that prior sanction of the Central Government under Section 188 CrPC is not required to prosecute an accused where the conspiracy, procurement and initial acts constituting the offence occurred in India, even if the subsequent acts of rape and prostitution were committed in a foreign country.
The Court held that Section 188 CrPC sanction is attracted only when the entire offence is committed outside India, and where the offences straddle both Indian territory and a foreign country, the trial can proceed without such sanction.
Justice A. Badharudeen dismissing the appeal of the second accused and confirming conviction and sentence under Sections 376 and 506(ii) IPC and Sections 5 and 6 of the Immoral Traffic Prevention Act, 1956, observed, “…the entire offences were not committed in foreign country so as to obtain sanction under Section 188 Cr.P.C, and the initial part of the occurrence was in India and latter part was in Sharjah”.
On the 22-days delay in filing FIR, the Bench observed, “…the same is of no serious consequence since a reasonable delay in sexual assault cases would occur because of the thinking time taken by the victim or her relatives after the trauma and consequential dilemma. Therefore, this contention cannot be appreciated. On re-appreciating evidence, it could be found that the learned Special Judge is right in finding commission of offences punishable under Sections 376 and 506(ii) of IPC as well as under Sections 5 and 6 of the ITP Act and herefore the conviction doesn't require any interference”.
Advocate Arun B. Varghese appeared for the appellant and Vipin Narayan A, Senior Public Prosecutor appeared for the respondent.
The prosecution case was that the first accused offered the victim, PW2, a job in a supermarket in Sharjah. On January 03, 2004, after collecting money from her, he sent her to Sharjah where the appellant, the second accused, received her at the airport and took her to his flat. Telling her that the flat was the supermarket, he forcibly tied her to the bed and raped her repeatedly for three days.
Thereafter he supplied her to several other persons for sexual molestation, receiving money from them. The victim was eventually rescued after a doctor to whom she disclosed the events contacted her brother. The FIR was registered 22 days after her return to India.
Before the High Court, the appellant contended that since the rape and prostitution occurred entirely in Sharjah, the trial was vitiated for want of Central Government sanction under Section 188 CrPC.
The Court rejected this contention, holding that the decision to take the victim for prostitution was made jointly by the first and second accused while the victim and the first accused were still in India, and that the subsequent acts in Sharjah were in continuation of that common intention formed on Indian soil.
Placing reliance on Darvin Dominic v. State of Kerala 2024 KHC 482 and the Supreme Court's judgment in Sartaj Khan v. State of Uttarakhand [2022 (2) KHC 846, the Court held that the offences were not fully committed in a foreign country and Section 188 sanction was therefore not required.
The Court also independently held that under Section 5(3)(a) of the ITP Act, offences of procurement are triable at the place from which the person is procured, which was India, providing an additional ground to dispense with Section 188 sanction.
Cause Title: Ashraf v. State of Kerala (Neutral Citation: 2026:KER:45787)
Appellant: Arun B. Varghese and Rakhi Raj, Advocates.
Respondent: Vipin Narayan A, Senior Public Prosecutor.