Section 188 of the Criminal Procedure Code provides extra-territorial jurisdiction over Indian citizens (Indian citizens committing any crime outside the territory of India, including high seas) and non-citizens (non-citizens in case of they being involved in a crime committed on any ship or aircraft which is registered in India).
To explain the above sentence in other words, we can say that it specifies two cases in which a person is triable for offences committed outside India:
- When an Indian citizen commits an offence in any place, either on the high seas or elsewhere, or
- When any person, not an Indian citizen, commits an offence on a ship or aircraft registered in India.
In this law note, you will learn about the trial of offences committed outside India and what’s the procedure for this.
Section 188 of CrPC: Offence Committed Outside India
As per section 188 of CrPC, when a crime is committed outside of India by an Indian citizen, whether on the high seas or elsewhere, or by a person who is not an Indian citizen, or by a non-citizen on a ship or aircraft registered in India, he may be treated for the offence as if it had been committed at any location in India where he may be found.
However, regardless of what is stated in any of the sections before this one, no such offence may be investigated or tried in India without the prior approval of the Central Government.
What Is Offence?
An act or conduct that is punished under any currently-in-effect law is referred to as an “offence.” (Section 2(n) of CrPC). Therefore, it must be shown that an accused has been guilty of an act or omission made punishable by some law (the law applicable to India) for the time being in force.
Who Is a Citizen of India?
According to Article 5 of the Indian Constitution, a person is a citizen of India if they have their primary residence in the country’s territory and meet one of the following criteria:
- They were born within Indian territory.
- Both of their parents were born within Indian territory.
- They have lived there regularly for at least five years before the Constitution’s start.
If they meet the qualifications of Article 6 of the Constitution, people who have immigrated to India from Pakistan are also considered Indian citizens.
Important: The conditions for who is a citizen of India are very wide. For full context, please see Part II (Articles 5 to 11) of the Indian Constitution, which talks about citizenship.
Offence on Ship or Aircraft
If an offence is committed by a person who is not a citizen of India but on board a ship or on an aircraft and that ship or aircraft is registered in India, then he may be dealt with in respect of that offence as if the offence had been committed in India at any place.
What Is the Place of Trial?
AV Moan Rao vs M Krishan Rao (2002) 6 SCC 174 AIR 2002 SC 2653
If a person commits an offence outside India, he can be dealt with at any place he is found regarding such an offence. It does not matter whether such a person comes voluntarily, in answer to a summons, or even under an illegal arrest; it is enough that the court should find him present when taking up the case. This section provides for the necessary procedural complement to section 4 of the Indian Panel Code, 1860 and other penal laws which have extra-territorial application.
Found
The word ‘found’ does not mean where a person is discovered but where he is present. Where a person charged with committing an offence outside India is present in this country, he can’t be allowed to say that he was illegally brought from a foreign country.
In other words, the term “found” refers to an individual’s presence rather than their location. If a person charged with committing an offence outside of India is already present in this nation, he cannot claim to have been brought here unlawfully.
Empress of India vs Sarmukh Singh, (1879) ILR 2 All 218 FB
While serving in the army, a soldier (Dewa Singh) from India who belonged to the Indian Army was killed in Cyprus by Sarmukh Singh. In Agra, Sarmukh Singh was charged with such a crime. As a result, it was decided that the Criminal Court in Agra had the authority to try him.
Elsewhere
This section’s (section 188 of CrPC) word ‘elsewhere’ connotes a place outside India.
Proviso
In all those cases where an offence is committed outside India, the previous sanction of the Central Government becomes necessary for the inquiry or trial of such an offence.
Vinod Kumar Jain vs State through CBI, 1991, CrLJ 669 (Del)
The offence of conspiracy to do illegal acts was committed during a meeting in Bombay and not in Singapore. Therefore, it was held that sanction of the Central Government under section 188 of CrPC was not necessary for investigation, trial, etc., of the offence.
Sanction of Central Government
Mohd Sajeed vs State of Kerala, 1995 Cr LJ 3313 (Ker)
Where a resident of Kerala had committed embezzlement in the United Arab Emirates, it was held that the proviso to section 188 of CrPC requiring the prior sanction of the Government of India is mandatory but applies only to enquiries and trials and does not apply to the pre-enquiry stage, such as taking cognizance of an offence, issuing warrant etc.
Remia vs Sub-Inspector of Police, Tanur, 1993 Cr LJ 1098 (Ker)
The police in Kerala refused to entertain a complaint that one Suleman was murdered in Sharjah in the United Arab Emirates by Ali, as the offence was committed outside India. The Kerala High Court directed the police to register the First Information Report (FIR) based on the complaint and take steps for the extradition of the accused, who was an Indian citizen. It was further held that sanction of the Government of India was not required at the investigation stage.
Receipt of Evidence Relating to Offences Committed Outside India
When an offence alleged to have been committed outside India and the sanction of the Central Government as required under section 188 of the CrPC has been received for trying such offence in India, in such a case, the Central Government may direct that the copies of the following document shall be obtained in evidence by the trial Court.
- Copies of the deposition made, or
- Exhibits procedure before:
- A Judicial officer, or
- A consular or diplomatic representative for that territory.
Conclusion
Section 188 of the CrPC deals with offences committed outside India, and where an offence is committed outside India, a previous sanction of the Central Government becomes necessary for the inquiry or trial of such an offence. Section 189 of the CrPC deals with receiving evidence relating to offences committed outside India.
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