Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Q Slinger (NA)     20 September 2014

Crpc 188 and central govt permission procedure in 498a

Hello All: 

 

I filed for discharge Petition CrPC 239 read with CrPC 188 in the trial court. The reason I filed this is because as per the 498a FIR and the Chargesheet, all the alleged crimes happened in a foreign country and non happened in India

 

As per CrPC 188, Central Govt permission is required to inquire into by the police or tried  by public prosecutor for any crimes committed by an Indian national in a foreign country. 

 

- Can you tell me how the process is initiated? 

- What is the process and how long does it take for it to be approved or denied?

- What are the grounds for approval or denial of permission? 

- Who should the police/Public Prosecutor/Complainant approach for such permission?

- If Central Govt. gives permission to the public prosecutor to proceed with the case, can I appeal it?

 

Regards



Learning

 8 Replies

ROHIT SHARMA (Legal Advisor )     20 September 2014

1. If the F.I.R. mentions the occurance of incident of domestic violence in foreign land then the complaint itself is not maintainable.

2. Cr.P.C. 188 is a rescue only if the complaint is about commission of objectionable ( civil or penal) act of  of a govt servant while during discharging his duties.

3. You should opt to file a special leave criminal petition u/s 482 of Cr.P.C. before the H.C. seeking quashing of the F.I.R.

4. If need be have a personal private legal consultation with this lawyer on (M) : 0-9824047971. E-mail : lawgate1349@gmail.com - so that the case facts can be discussed at length and viable legal solution can be envisaged.

Adv. Rohit Sharma.

(B.Sc. L.L.B. L.L.M.)

 

 

 

 

 

Q Slinger (NA)     21 September 2014

Rohit, thank for the input...but as per your point 2.. CrPC 188 is applicable to all Indian citizens regardless if they are govt servants or not.

I am not too keen on going to HC first without exhausting my chances at trial court. HC in AP are in the worse shape ever...with one judge getting 852 cases in one day!!!

 

Also, I am not looking for alternatives to the discharge petitions..but specific answers to my questions about the CrPC 188 process.

Ashok, Advocate (Lawyer at Delhi)     21 September 2014

Section 188 of Cr.P.C. is reproduced below:

 

188. Offence committed outside India.— When an offence is committed outside India

(a) by a citizen of India, whether on the high seas or elsewhere; or

(b) by a person, not being such citizen, on any ship or aircraft registered in India,

he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found:

Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.”

 

It is quite obvious from the above section that it is NOT confined ONLY to cases in which government servants are involved while discharging their duties. Section 188 is applicable when an offence is committed outside India, “by a citizen of India…” or “by a person, not being a citizen of India, …”. Therefore, these provisions are wide enough to take into their cover various categories of persons even other than government servants.

 

The previous sanction under S. 188 Cr.P.C. is required to be accorded by the Central Government, which basically means the President of India, in view of the provisions of Article 77 of the Constitution of India. Now, under clause (3) of Article 77 of the Constitution, “rules of business” have been framed by the President of India in the form of the Government of India (Allocation of Business) Rules, 1961, which being the statutory rules govern as to how the business of the Government of India has to be transacted by various Ministries, Departments, etc. Under clause (c) of Rule 3(3) of the said Rules, where sanction for the prosecution of any person (other than Government servants or other public servants) for any offence is required to be accorded, it has to be accorded by the Department which administers the Act under which the alleged offence is committed. It is pertinent to submit that in your case, since you appear to be a private person, therefore, above clause (c) will be applicable.

 

In your case, the case is of Section 498-A of IPC. And, the IPC is administered by the Ministry of Home Affairs (Department of Internal Security) of the Government of India. Therefore, the sanction for prosecution under Section 188 Cr.P.C. will be required from the Secretary of the above Ministry / Department.

 

This sanction is required to be obtained by the police agency which conducted the investigation into the case. Such sanction is required to be attached with the charge sheet.

 

 

If the charge sheet does not contain such sanction under Section 188 Cr.P.C., and if the offence had taken place outside India but coming within the meaning of Section 188 Cr.P.C., then the trial court cannot begin the trial in the absence of such sanction. Therefore, you are well within your rights to challenge the absence of the sanction and to get the case quashed from the appropriate court.

2 Like

Q Slinger (NA)     21 September 2014

Ashok,

 

Finally a good answer!!! Thank you so much for the insightful reply. I have filed for discharge in trial court and if that fails, I will proceed on to Session and then to HC. I have a quash case for A2 to A4 and its taking for ever so don't want to approach HC or me (A1)

 

Now, are you familiar with the process of getting the sanction? Because I fear that the opposite party might approach the central govt for sanction before the discharge arguments are completed. So if you are able to answer the my initial questions, I would be very appreciative. 

satya (self)     23 September 2014

THERE IS a citation on similar to the said  Issue . Here it is bigamy in foreign country . BIGAMY WAS committed out of india. Prosecution can be launched in  India with the sanction of central Government. ( 1980 CRLJ (NOC) 57)

Ashok, Advocate (Lawyer at Delhi)     23 September 2014

Answers to your initial questions are as under (as requested by you):

 

(1) As I mentioned in my previous reply, the police authorities (who are investigating the case) have to request the competent authority, i.e., the Union Home Secretary, MHA, Govt. of India, in this case, buy giving details of the facts of the case, seeking sanction under Section 188 Cr.P.C.

 

(2) I have already explained the process. The sanction is expected to be granted or refused generally in 3 months time.

 

(3) Grounds of denial or approval depend upon facts of the case. I cannot comment.

 

(4) Investigating agency (i.e., police officer) has to approach.

 

 

(5) You can challenge it on the grounds of non-application of mind, competence of the authority, and other valid grounds on which a sanction is generally challenged. Read the judgments on Section 188 Cr.P.C. [also the judgments on sanction under Section 197 Cr.P.C. and Section 19 of the Prevention of Corruption Act, 1988, because some of the legal principles would be the same.].

1 Like

Q Slinger (NA)     23 September 2014

@Ashok Advocate:

 

Finally a brilliant and a perfect answer! I am surprised that knowledge is quite sparse that even lawyers and police personnel had problem telling me what the process is.

 

Thank you for everything and a million thanks for your efforts!

Mohammed Khan (Engineer)     26 June 2017

Hi,

I am currently residing out of the country since number of years with no travel taken place to India since 2 years.

I gave issued divorce to my ex-wife under muslim divorce act an year ago. After an year of divorce, My ex-wife made lot of allegations against to my 498a case now most of them written as the offenses commited outside of india over the phone calls as harrassment by the husband. I am currently making petition to quash in high court as we have a clear evidences with passport stamps where she claimed tha my family commited offense but my family was out of country on the dates she mentioned as offense occured. In addition to arguments with evidences that we made, I am thinking to add section 188 central goverment sanction note as police did automatic arrest to my dad with any sancations or investigations. Can I go and add in my quash petition about this secton 188 as most of the offenses she mentioned as out of the country and also if the central government investigates this case to approve we have a clear Police investigation reports (50 pages of document) provided by a police out side of the country [all with NO answers to crime, offense, between my ex-wife and me). Would this be a right approach to add this section in my quash under sec 188 CRPC?

 

thank you.


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