Offences Committed Outside India: Central Govt. Sanction Not Required To Arrest An Accused During Investigation [Read Judgment]

The Kerala High Court has held that the bar under Section 188 of the Code of Criminal Procedure does not affect the power of arrest and detention available to the Police authorities in cases where the allegations pertains to commission of offences allegedly committed outside India, even when the sanction of the Central Government has not been obtained.

Justice Alexander Thomas observed that, only those inquiries within the meaning of Sec. 2(g) of the Cr.PC. which are in the post-cognizance stage, alone would come within the zone of prohibition contained in the proviso to Sec. 188 of the Cr.PC.

The contention raised in this case [Mohammed Shameer Ali vs. State of Kerala], on behalf of the accused was that, since almost all the alleged incidents narrated in FIS had happened in Dubai, outside the territorial limits of the Union of India, the mandatory provisions contained in Sec.188 of the Cr.PC. would regulate the scenario and that by virtue of the proviso appended to the operative portion of Sec.188 of the Cr.PC, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government. Reliance was placed on a recent single bench judgment in Sanoop v. State of Kerala  which had held that matters relating to remand consideration under Sec. 167(2) Cr.P.C. by the Magistrate in respect of a case involving offence committed outside India without the sanction of the Central Government under the proviso to Sec. 188 of the Cr.P.C. would be barred by the said proviso and that therefore arrest and detention of the accused in such cases is also hit by the bar as per the proviso to Sec. 188 of the Cr.P.C., etc.

The Court noted that, in Sanoop, the single bench had held that even inquiries at the stage of remand consideration under Sec. 167(2) of the CrPC. would also come within the sweep of the "inquiries" covered by the proviso to Sec. 188 of the CrPC.

Disagreeing with the said view and observing that the same does not reflect the correct legal position and is per incuriam, Justice Alexander Thomas opined that even if the proceedings in relation to remand matters under Sec. 167(2) of the Cr.P.C. is otherwise held to be "inquiry" within the meaning of Sec. 2(g) of the Cr.P.C. the term "inquiry" as found in the proviso to Sec. 188 of the Cr.P.C. has to be understood and appreciated in the context of the provision made in Sec. 188 of the Cr.PC. Referring to various Supreme Court and Kerala High Court judgments on this subject, the court observed:

All the steps in the investigation process, from the commencement of the registration of the crime up to the filing of the final report would form an integral part and parcel of the investigation process. Since the investigation is not the subject matter of the bar in the proviso to Sec. 188 of the Cr.PC., it goes without saying that the power to investigate has to proceed unfettered and unhampered in any manner and in accordance with law. If the interpretation that the matters in relation to remand consideration under Sec.167 of the Cr.P.C. would form part of the inquiry as understood in Sec. 2(g) read with Sec.188 of the CrPC. is accepted, then the inevitable result would be that though the Police can formally investigate the offence committed outside India even without the sanction, they will be totally denuded with the power of arrest, detention, etc. and therefore virtually the entire investigation process would be put to a stand-still and no investigating agency will be able to make any effective progress in the investigation so as to finalise the same in accordance with law and to file the final report.

Therefore, if the said approach is taken, then it will lead to a scenario, whereby the investigating agency would be totally stultified and denuded of its power and no worthwhile investigation could be conducted. Hence a purposive and contextual interpretation that is to be made in the context of the specific provision made in Sec. 188 of the Cr.PC. is that only those inquiries within the meaning of Sec. 2(g) of the Cr.PC. which are in the post-cognizance stage, alone would come within the zone of prohibition contained in the proviso to Sec. 188 of the Cr.PC. The interpretation to the contrary would lead to an irrational and undesirable consequences leading to a situation whereby the investigation agency would be totally deprived and denuded of its substantial and real power of investigation."

The judge further observed that it is impractical and rather imprudent a heavy burden on the Central Government:

There is yet another aspect of the matter. It is a matter of common knowledge that such cases involving offences committed outside India will not be very few and there could be many such cases in many States in India and if the view canvassed by the petitioner is accepted, then it would amount to holding that after registration of the FIR, even for arrest of the accused where it is found necessary, would have to wait until the Central Government takes a decision on the question of sanction as per the proviso to Sec. 188 of the Cr.P.C. , etc. and if such a view is taken it will be placing enormous and unrealistic burdens on the Central Government to take decisions on the question of sanction in each and every case, which may arise in various parts of the country, even before the arrest of the accused is effected in such cases.

It has to be borne in mind that the question of sanction in respect of all such cases which arise in any part of the country, be it in the various States or the Union territories, will have to be decided by the Central Government and to place such a heavy burden on the Central Government is impractical and rather imprudent. 

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