Introduction:

In Suo Motu v. State of Kerala and Another, Criminal Revision Case No. 55 of 2017, reported as 2026 LiveLaw (Ker) 43, the Kerala High Court was called upon to interpret the true scope and stage-wise applicability of Section 188 of the Code of Criminal Procedure, 1973, which governs the procedure for offences committed outside India by Indian citizens or on Indian ships or aircrafts, and to determine whether prior sanction of the Central Government is mandatory at the stage of taking cognizance or only before commencement of trial, in a case where the prosecution alleged that the accused committed rape upon the de facto complainant (CW1) in Kuwait inside a rented house, after which the victim returned to India and lodged a complaint leading to registration of crime, investigation, filing of final report before the Judicial First Class Magistrate, committal to the Sessions Court, and transfer to the Additional Sessions Judge, Manjeri; at this stage, the defence questioned the jurisdiction of the Sessions Court by invoking Section 188 CrPC, contending that since the offence occurred in a foreign country, the entire prosecution was vitiated for want of previous sanction from the Central Government, and that continuation of proceedings without such sanction would amount to illegality going to the root of jurisdiction.

Arguments:

On behalf of the accused, it was forcefully argued that Section 188 CrPC uses the phrase “no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government,” and therefore, the moment judicial machinery in India is set into motion for inquiry, committal, or trial, the statutory mandate of sanction becomes a condition precedent, without which even cognizance could not be legally taken, and that allowing prosecution to proceed without sanction would defeat the very purpose of Section 188 which acts as a safeguard in cases involving extra-territorial offences, diplomatic sensitivities, and international jurisdictional concerns; the defence further submitted that the committal by the Magistrate and acceptance of the case by the Sessions Court were void ab initio, as they lacked competence to entertain the matter at all in absence of sanction, thereby rendering the proceedings non est in the eyes of law; on the other hand, the prosecution contended that Section 188 does not bar the court from taking cognizance of the offence but only restricts commencement of trial without sanction, and that investigation, filing of charge sheet, committal, and even framing of charges can legally occur before sanction, provided that actual trial proceedings such as recording of evidence do not begin without Central Government approval, and to support this interpretation, reliance was placed on authoritative precedents of the Supreme Court, particularly Thota Venkateshwarlu v. State of Andhra Pradesh (2011) 9 SCC 527 and Nerella Chiranjeevi Arun Kumar v. State of Andhra Pradesh (SLP No. 3978 of 2021), which clarified that sanction under Section 188 is not a precondition for cognizance but only for trial, and that courts should not quash proceedings merely because sanction has not yet been obtained at the pre-trial stage.

Judgment:

After carefully examining the statutory scheme of Section 188 CrPC, the legislative intent, and binding judicial precedents, Justice C. Pratheep Kumar held that the language of Section 188 draws a clear distinction between the court’s power to take cognizance and its authority to commence trial, and that the embargo imposed by the provision operates only at the stage when the court begins trial proceedings, not at the stage of registration of FIR, investigation, filing of final report, committal, or even framing of charges; the Court emphasized that the words “inquired into or tried” in Section 188 must be read in harmony with the overall procedural framework of the CrPC and cannot be interpreted so strictly as to stall the criminal justice process at its very inception, especially when the accused and victim are both within Indian jurisdiction and the offence has substantial connection to India; placing reliance on Thota Venkateshwarlu, where the Supreme Court categorically held that sanction is required only before trial and not at the stage of taking cognizance, and reaffirmed later in Nerella Chiranjeevi Arun Kumar, the Court reiterated that absence of sanction at the cognizance stage does not render the proceedings void, but trial cannot proceed further unless sanction is secured; the Court therefore rejected the defence contention that the Sessions Court lacked jurisdiction to take cognizance and commit the case, and held that the committal proceedings and cognizance were legally valid, but at the same time issued a clear and mandatory direction that the trial shall not commence unless and until sanction under Section 188 CrPC is obtained from the Central Government, thereby striking a balance between procedural efficiency and statutory compliance; accordingly, the criminal revision petition was disposed of with the clarification that while the prosecution is not invalid at its inception, continuation into trial without sanction would be impermissible, reaffirming that Section 188 CrPC acts as a checkpoint before trial and not as a gatekeeper at the threshold of criminal proceedings.