The Kerala High Court has held the Trial Court should not proceed with criminal prosecution under Section 498A of the IPC without previous sanction from the Central Government when an offence of marital cruelty was entirely committed outside India by an Indian National.
Justice A. Badharudeen thus quashed the criminal proceedings initiated against the husband under Section 498A IPC for want of previous sanction from the Central Government under Section 188 CrPC. Justice Kabir said Section 188 is a fetter on the powers of the investigating authority to inquire into offence to the extent that it can be done only with the previous sanction of the central government.
The prisoner, however are imposed only when the stage of trial is reached, which clearly indicates that no sanction in terms of Section 188 is required till commencement of the trial. It is only after the decision to try the offender in India was felt necessary that the previous.
In the instant case, it is perceivable that the entire allegations, which would attract offences under Section 498A of IPC alleged to be committed by the 1st accused is outside India, and the matter definitely would come with the ambit of Section 188 of Cr.P.C. Therefore, the present proceedings without obtaining prior sanction as contemplated under Section 188 Cr.P.C. is vitiated.”
The husband has approached the High Court seeking to quash the final report lodged against him stating that sanction was not obtained from the Central Government under Section 188 CrPC for initiating criminal prosecution. He submitted that all allegations of marital cruelty had been committed while the defect complainant was residing with him in Australia.
On analysing Section 188 CrPC and Apex Court judgment in Sartaj Khan v. State of Uttarakhand, the Court held that there was no necessity of any sanction if a part of the offence was committed in India. “At the same time, if part of the overt acts or at least one instance among the overt acts alleged to be committed in India, sanction under Section 188 of Cr.P.C. is not necessary in such cases,” clarified the Court.
In the facts of the case, the Court found that the entirety of the allegations against the husband was committed while they were residing in Australia. It thus held offence against the husband cannot be inquired into or tried without previous sanction from the Central Government.
