Rape Committed In Oman But Genesis Of Crime In India? Kerala High Court Says Centre's Sanction U/S 188 CrPC Not Required For Trial

The Court referred to the Apex Court judgment in Sartaj Khan v. State of Uttarakhand (2022), wherein it was laid down that there was no necessity of any sanction if a part of the offence was committed in India.

After analyzing the facts of the present case, Justice A. Badharudeen observed that sanction was not required under Section 188 CrPC to proceed against the petitioner since the offence has been partly committed in India and partly abroad.

“ Thus, it appears that, as per the prosecution allegations and as per the charge framed by the Court against accused Nos. 1 and 2, offences punishable under Sections 366, 370, 370(A)(2), 354(A)(1) (ii), 354(A)(2), 376(2)(K)(N), 506(1), 420 read with 34 of IPC have been partly committed in India and partly abroad. If so applying the ratio in Sartaj Khan's case (supra) in order to proceed with the trial, sanction provided under Section 188 of Cr.P.C. is not necessary in the facts of this particular case. Therefore, the challenge in this regard on the ground of want of sanction would not yield.”

In this case, the petitioner is the second accused who allegedly obtained a visa for the woman after sharing a common intention with the first accused to cheat and defraud her by bringing her to Muscat after offering her the job of a housemaid. The first accused allegedly offered nursing job to the woman in Muscat in 2005 and she was taken to Surat where she was raped and threatened by him. Again in 2018, the first accused contacted the woman and offered her job in Muscat as a house maid at the house of the second accused. While working there, she was subjected to rape and was threatened saying that she was brought to Muscat for this purpose. The first accused refused to help the woman and encouraged her to cooperate with the second accused. The woman was unable to tolerate the sexual assault and was forced to leave her job and sent back to India. On returning to India, the woman filed case against the first and second accused.

The Counsel for the petitioner submitted that the entire proceedings must be quashed. He submitted that he has bonafidely given employment to many persons in Muscat and false case was filed against him by the complainant since she was unsatisfied with her job. It was stated that the acts alleged against the petitioner occurred in Muscat and not in India. It was thus stated that sanction of Central government was necessary under Section 188 of CrPC to proceed with the trial against the petition.

The Court referred to the decisions in Sartaj Khan (supra) and the Kerala High Court decision in Darvin Dominic v. State of Kerala (2024) wherein the scope of sanction under Section 188 of CrPC was elaborately discussed. It noted that in Sartaj Khan (supra), the Apex Court laid down that Section 188 would not be attracted if a part of the offence was committed in India and the provision gets attracted only when the entirety of offence was committed outside India.

The Court went on to that the ratio in Shajan Theruvath v. State of Kerala and Another (2018) was not good in law in the light of the Apex Court decision in Sartaj Khan (supra). It said, “Adverting to the ratio in Sartaj Khan's case (supra), the ratio in Shajan Theruvoth's case (supra) rendered by this Court, holding the view that, even if the transaction was effected partially in India and partially outside India, sanction under S.188 of the Cr.P.C. is required, runs contra to the ratio in Sartaj Khan's case (supra) and the same is not a good law to be followed.”

As such, the Court stated that prosecution has a definite case that the petitioner obtained visa for the complainant to take her to Muscat to have forceful sexual intercourse with her after sharing common intention with the first accused.

The Court thus stated that prosecution prima facie raises serious allegations against the petitioner, and it cannot be quashed.

Accordingly, the Court dismissed the petition and held that sanction under Section 188 CrpC was not required and directed the Trial Court to proceed with the trial.

Counsel for Petitioner: Advocates P Chandy Joseph, C K Vidyasagar

Counsel for Respondents: Public Prosecutor Renjith George

Citation: 2024 LiveLaw (Ker) 448

Case Title: Rajesh Gopalakrishnan v State of Kerala

Case Number: Crl.M.C. No. 946 of 2024

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