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Need of sanction for inquiry or trial: the dilemma of Courts for crimes on high seas

Crimes have been committed by the humanity since times immemorial and shall be continued to future times unknown. The only change what the human civilisation witnessed is the manner in which person(s) were treated after the commission of crimes i.e., the process of trial based on legal principles of evidence and then the punishment thereon. Each of these things witnessed a great deal of change in past century, many of the laws governing accused and punishment underwent a change. Earlier, the historic form of punishment such as beheading, maiming, gibbeting was used by almost every civilisation slowly eroded and more tolerant form of punishments such as life imprisonment, forced labour are now accepted by every country on the globe.

But, even with the fast changing world some of the procedures left behind and one of the things are the crimes committed outside the jurisdiction of a country. Crimes committed on high seas, international waters and in foreign countries. Courts in India have always found themselves in dilemma while dealing with cases on high seas with particular reference to taking cognizance, conducting investigation and necessary sanction from the Government of India. The particular provision dealing with the procedure of crimes committed outside India is under section 188 of Code of Criminal Procedure.

Section 188 reads as –

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.

Initial response by the authorities –

The Police can register a FIR based on the information received from the victim but could not investigate the crime if it has occurred beyond the territorial waters. The police can investigate only within the territorial limits of Indian waters. The said section however does not provides as to who has to find the accused whether by the police or the court or the victim. The Supreme Court in Om Hemrajanai vs. State of U.P., (2005) 1 SCC 617 said that the finding has to be done by the Court and neither by the complainant nor by the Police. It means that the victim can approach any court and may file complain against an Indian who has committed crime.

Requirement of Sanction-

The section begins with a non obstante clause that no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government. This proviso has put the courts in India into a dilemma as to whether the prior permission of the government is necessary even to carry out the investigation or trial. The word “tried” is what, not the “trial” appears in the section. These two terms are not synonymous and have different meaning in the code though both of these terms are not defined in the CrPC.

The Supreme Court in case of State of Bihar vs. Ram Naresh Pandey, AIR 1957 SC 389 held that the words ‘tried’ and ‘trial’ appear to have no fixed or universal meaning. No doubt, in quite a number of sections in the Code to which our attention has been drawn the words ‘tried’ and ‘trial’ have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration.

So, now the question arises as to when the sanction of the Central Government would be necessary i.e. prior to investigation or prior to commencement of trial. The Supreme Court answered in Thota Venkateswarlu vs. State of A.P., (2011) 9 SCC 527 that upto the stage of taking cognizance, no previous sanction would be required from the Central Government in terms of the proviso to Section 188 Cr.P.C. However, the trial cannot proceed beyond the cognizance stage without the previous sanction of the Central Government. It is only after the decision to try the offender in India was felt necessary that the previous sanction of the Central Government would be required before the trial could commence.

The case of requirement of sanction of central government came up before the Supreme Court in Italians Marines case when the FIR was lodged by the Kerala Police for murdering two fishermen off the coast of Kerala. The offence was not committed in territorial waters but on continuous waters wherein the State of Kerala being a federal unit of India did not had any jurisdiction to investigate the said offence. It was pleaded before the Supreme Court that the police prior to filing of chargesheet was supposed to obtain the sanction of Central Government. The Supreme Court however left the question of jurisdiction open as the Union of India did not press it.

Conclusion-

The courts in India do not have a clear definition to the terms provide in section 188 of Code of criminal procedure i.e. “inquiry” , “tried” and “trial” as these terms have different connotations from cases to case basis and thus continue to create confusion for victim who has suffered at the hand of accused. The Courts have thus left the question of requirement of sanction for inquiry purposes or for trial open for future debates.

-India Legal Bureau

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