Ismail vs State of Kerala

P.V. Narayanan Nambiar, J.—Sabira, wife of the petitioner, committed suicide on 17-8-1994 at Dubai. Her body was brought to India and cremated on 25-8-1994. Thereafter, father of Sabira who is the father-in-law of the petitioner filed a complaint before the Judicial First Class Magistrate''s Court, Calicut as C.M.P. No. 5754 of 1994 alleging offence against the petitioner under Sec. 498(A) I.P.C., which was forwarded to Nallalam police by the Magistrate under Sec. 156(3) Cr.P.C. whereupon the police registered crime and conducted investigation. After investigation final report was filed in which it was alleged that the accused committed offence punishable under Sees. 306 and 498-A I.P.O. and on the basis of the final report, cognizance was taken by this Court. On appearance of the accused, the court framed the charge, copy of which is Annexure I. It is seen from Annexure I charge that the accused cruelly manhandled his wife Sabira at Dubai and disallowed her to go to her house for her sister''s marriage and that Sabira committed suicide due to the abetment of the accused and hence, he committed offence punishable under Secs. 306 and 498-A IPC. After framing of the charge, the complainant was examined as P.W. 1 in part. But the trial was stopped in view of Sec. 188 Cr.P.C. as no sanction was obtained for trying the accused. The court directed the prosecution to produce the sanction.

It is the contention of the petitioner that in view of Sec. 188 Cr.P.C. the trial court could not be conducted by the court in the absence of sanction from the Central Government.

Proviso to Sec. 188 Crl. P.C. which is mandatory says that if an offence is committed outside India, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government. The words used iri the proviso is "previous sanction of the Central Government" which necessarily means that sanction should be obtained before enquiry or trial. In the instant case, charge was framed and P.W. 1 was examined in part Trial commenced without the sanction as required under Sec. 188 Cr.P.C. Subsequent production of sanction will not validate the trial as sanction is a condition precedent for cognizance of the offence and also for trial. this Court in the decision reported in M. Sajeed v. State of Kerala, 1995 (1) KLT 748 held that prior sanction of the Central Government is required for enquiry or trial if the offence is committed outside India and the defect of want of sanction cannot be cured by subsequent production of the sanction after commencement of the trial. I am in respectful agreement with the view taken in the decision referred to above. In view of what is stated above, even if the prosecution produced sanction of the Central Government for trying the accused, it will not be helpful to them as sanction prior to the trial was not obtained. Subsequent production of the sanction will not validate the trial. Hence, the trial and the entire proceedings in S.C. No. 87 of 1996 of the Asst. Sessions Court, Calicut will stand quashed.

The Crl. M.C. is allowed as above.