THOTA VENKATESWARLUversusSTATE OF A.P. TR. PRINCL. SEC. & ANR.

       ~ ..

                                      [2011] 11 S.C.R. 95
          \.,.

                           . '· ~   THOTA VENKATESWARLU                A
              ..   '                          ~

              ., STATE OF A.P. TR. PRINCL. SEC. & ANR.
                      (SLP ( Crl.) No~ 7640 of 2008)
                                     SEPTEMBER 02, 2011
                                                                       B
  [ALTAMAS KABIR, CYRIAC JOSEPH AND SURINDER
                SINGH NIJJAR, JJ.]

        Code of Criminal
                •  J'
                            Procedure, 1973:
                       ., . •



        s. '188 proviso :...oifence 'committed outside India· by c
 citizen of India - Previous sanction of Central Government.for
 inquiring Into or trying such offences in India - Requirement
 of~ }ield:· Upto·the stage· of taking cognizance; no previous·
 sariction is required from the Central Government irf:terms of D
 tlfe ·proviso to s. '188 - However, the''trialcanriotproceed,
 lieyond the cognizance stage without the previous sanction.
 of the Central Government.       · ·· . · '        · · •· ··
                                                            ' 'i

        s. 188 -~Offence committed outside India - Petitioner-
  husband and respondent No. 2-wife married in lndi~ - At the          E
  time of marriage, cash and gold given by father of respondent
  No;t 2,to. the petitioner
                         .
                            - Petitioner- left for abroad~Botswana
                                                        . ..... ....
  and respondent No., .2 joined him .one, month, later -
  Respondent No. 2 allegedly ill-treated by" the petiiioner as also
  demand for dowry raised by the petitiOrJer, af!d his immediate       F
  relatives eyway of phone ca/fs-: _Respon<j(3n_t{\Jo. ?. addressed
  a complaint to the police in India : R~gistiation of C011Jplaint
  ulss. 498-A and. 506 /PC and ss .. 3 and 4, of the Dowry
· Prohibition Act;. 1986 - Charge-sheet. filed ?gainst Jhe
  petitioner and his close relatives-co-accused - Cognizance           G
  taken by Magistrate - Petition filed by the petitioner and co-
  accused seeking quashing of the same - High Court quashed
  proceedings against 'the co-accused, ·however dismissed the
  petition·
   I<     ~
            filed by the petitioner - on appeal, held: Alleged
                       ,

   .                             95                                    H
    96       SUPREME COURT REPORTS                [2011] 11 S.C.R.

A offences u/ss. 3 and 4 of the Dowry Prohibition Act occurred
  within the territorial jurisdiction of the criminal courts in India
  and could, therefore, be tried by the courts in India without
  obtaining the previous sanction of the Central Government -
  Magistrate may proceed with the trial relating to offences -
B However, in respect of offences alleged to have been
  committed outside India, the Magistrate shall not proceed with
  the trial without the sanction of the Central Government as
  envisaged in the proviso to s. 188 - Penal Code, 1860 - ss.
  498-A and 506 - Dowry Prohibition Act, 1986 - ss. 3 and 4.
C        Petitioner-husband and respondent No.2-wife got
    married in India. At the time of marriage, father of
    respondent No. 2 gave cash and gold to the petitioner
    and his relatives (accused Nos. 1 to 4). The petitioner left
    for abroad-Botswana and respondent No. 2 joined him
D   one month later. It is alleged that while in Botswana, the
    petitioner ill-treated respondent No.2 as also raised dowry
    demands. The petitioner's immediate relatives also raised
    dowry demands by way of phone calls. Respondent No.
    2 addressed a complaint to the police in India from
E   Bostwana. The case was registered ulss. 498-A and 506
    IPC and ss. 3 and 4 of the Dowry Prohibition Act, 1986.
    The charge-sheet was filed against the petitioner and his
    close relatives. The Magistrate took cognizance of the
    case and ordered issuance of summons against the
F   accused. The petitioner and accused Nos. 2 to 4 filed a
    criminal petition seeking quashing of the cognizance
    taken by the Magistrate u/s. 482 Cr.P.C. The High Court
    allowed the criminal petition filed by accused Nos ..2 to
    4, however, dismissed the one filed by the petitioner.
G   Therefore, the petitioner filed the instant Special Leave
    Petition.
      The question which arose for consideration in the
  instant case was whether in respect of a series of
  offences arising out of the same transaction, some of
H which were committed within India and some outside
  THOTA VENKATESWARLU v. STATE OF A.P. TR.                    97
            PRINCL. SEC. & ANR.
India, such offences could be tried together, without the           A
previous sanction of the Central Government, as
envisaged in the proviso to Section 188 Cr.P.C.

     Disposing of the Special Leave Petition, the Court
     HELD: 1.1 From the complaint made by respondent                B
No.2, it is clear that the cases relating to alleged offences
under Section 498-A and 506 l.P.C. had been committed
outside India in Botswana, where the petitioner and
respondent No.2 were residing. At best it may be said that
the alleged offences under Sections 3 and 4 of the Dowry            C
Prohibition Act occurred within the territorial jurisdiction
of the criminal courts in India and could, therefore, be
tried by the courts in India without having to obtain the
previous sanction of the Central Government. [Para 9]
[102-G-H; 103-A-B]                                                  D
      1.2 The language of Section 188 Cr.P .C. is quite clear
that when an offence is committed outside India by a
citizen of India, he may be dealt with in respect of such
offences as if they had been committed in India. The                E
proviso, however, indicates that such offences could be
inquired into or tried only after having obtained the
previous sanction of the Central Government. The
proviso to Section 188 is a fetter on the powers of the
investigating authority to inquire into or try any offence
                                                                    F
mentioned in the earlier part of the Section, except with
the previous sanction of the Central Government. The
fetters, however, are imposed only when the stage of trial
is reached, which clearly indicates that no sanction in
terms of Section 188 is required till commencement of the
trial. It is only after the decision to try the offender in India   G
was felt necessary that the previous sanction of the
Central Government would be required before the trial
could commence. Accordingly, upto the stage of taking
cognizance, no previous sanction would be required
from the Central Government in terms of the proviso to              H
    98      SUPREME COURT REPORTS             [2011] 11 S.C.R


A Section 188 Cr.P.C. However, the trial cannot proceed
  beyond the cognizance stage without the previous
  sanction of the Central Government. The Magistrate is,
  thereforej free to proceed against the accused in 'l'esj:>ect
  of offences having been committed in India and to
B complete the trial and pass judgment therein, without
  being inhibited by the other alleged offences for which
  sanction would be required. [Paras 10 and 11] [103-C-H;
  104-A-D]

       1.3 The provisions of the Penal Code, 1860 have
C been extended to offences committed by any citizen of
  India in· any place within and beyond India by virtue of
  Section 4 thereof. Accordingly, offences committed in
  Botswana by an Indian citizen would also be amenable
  to the provisions of the Penal Code, 1860 subject to the
D limitation imposed under the proviso to Section 188
  Cr.P.C. [Para 12] [104-E]
                        '
       1.4 While there is no reason to interfere with the High
  Court's decision to reject the petitioner's prayer for
E quashing of the proceedings in the complaint case it is
  also clear that the Magistrate may proceed with the trial
  relating to the offences alleged to have been committed
  in India. However, in respect of offences alleged to have
  been committed outside India, the Magistrate shall not
F proceed with the trial without the sanction of the Central
  Government as envisaged in the proviso to Section 188
  Cr.P.C. [Para 13] [104-F-G]

        Ajay Aggarwal vs. Union of India and Ors. (1993) 3 SCC
    609: 1993    (3) SCR 543 - referred to.
G
                       Case Law Reference:
         1993 (3) SCR 543       Referred to          Para 10
      CRIMINAL APPELLATE JURISDICTION: SLP (Crl.) No.
H 7640 of 2008.
       THOTA VENKATESWARLU v. STATE OF A.P. TR.                   99
                 PRINCL. SEC. & ANR.
         From the Judgment & Order dated 27 .08.2008 of the High        A
     Court of Judicature of Andhra Pradesh at Hyderabad 'in
     Criminal Petition No. 3629 of 2008.

     •· G.V.R. Choudary, K. Shivraj Chaudhuri, A. Chandra
     Sekhar for the Petitioner.
                                                                        B
         D. Mahesh Babu, Sawita, D. Bharathi Reddy, P. Venkat
     Reddy, Anil Kumar Tandale for the Respondents.

         The Judgment of the Court was delivered by

          ALTAMAS KABIR, J. 1. This Special Leave Petition is
                                                                        c
     directed against the judgment and order dated 27th August,
     2008, passed by the High Court of Andhra Pradesh at
'·   Hyderabad in Criminal Petition No.3629 of 2008 dismissing the
     Petition filed by the Petitioner under Section 482 Criminal
     Procedure Code ('Cr.P.C.' for short) for quashing the              0
     proceedings in Complaint Case No.307 of 2007 pending
     before the Additional Munsif Magistrate, Addanki. This case
     raises certain interesting questions of law and to appreciate
     the same, some of the facts are required to be reproduced.
                                                                        E
          2. The Petitioner, Thota Venkateswarlu, was married to the
     Respondent No.2, Parvathareddy Suneetha, on 27th November,
     2005, as per Hindu traditions and customs in the Sitharama
     Police Kalyana Mandapam, Ongole, Prakasam District, Andhra
     Pradesh. At"the 1time of marriage· 12 lakhs in cash, 45            F
     sovereigns of gold and 50,000/-as Adapaduchu Katnam is
     alleged to have been given to the Accused Nos.1 to 4, who are
     the husband, the mother-in-law and other relatives of the
     husband. According to the Respondent No.2, the Petitioner left
     India for Botswana in January 2006 without taking her along with   G
     him. However, in February, 2006, the Respondent No.2 went
     to Botswana to· join the Petitioner. While in Botswana, the
     Respondent No.2 is alleged to have been severely ill-treated
     by the Petitioner and apart from the above, various demands
     were also made including a demand for additional dowry of 5        H
    100     SUPREME COURT REPORTS               (2011) 11 S.C.R.


A lakhs. On account of such physical and mental torture not only
  by the Petitioner/husband, but also by his immediate relatives,
  who continued to demand additional dowry by way of phone
  calls from India, the Respondent No.2 addressed a complaint
  to the Superintendent of Police, Ongole, Prakasam District,
B Andhra Pradesh, from Botswana and the same was registered
  as Case (Crl.) No.25 of 2007 under Sections 498-A and 506
  Indian Penal Code ('l.P.C.' for short) together with Sections 3
  and 4 of the Dowry Prohibition Act, 1986, by the Station House
  Officer, Medarametla Police Station, on the instructions of the
c Superintendent of Police, Prakasam District. Upon
  investigation into the complaint filed by the Respondent No.2,
  the Inspector of Police, Medarametla, filed a charge-sheet in
  CC No.307 of 2007 in the Court of the Additional Munsif
  Magistrate, Addanki, Prakasam District, under Sections 498-
D A and 5061.P.C. and Sections 3 and 4 of the Dowry Prohibition
  Act against the Petitioner and his father, mother and sister, who
  were named as Accused Nos.2, 3 and 4. The learned
  Magistrate took cognizance of the aforesaid case and by his
  order dated 19th February, 2007, ordered issuance of
  summons against the accused.
E
       3. The cognizance taken by the learned Magistrate was
  questioned by the Petitioner and the other coaccused before
  the Andhra Pradesh High Court in Criminal Petition Nos.3629
  and 2746 of 2008 respectively and a prayer was made for
F quashing of the same under Section 482 of the Code of
  Criminal Procedure. The High Court by its order dated 27th
  August, 2008, allowed Criminal Petition No.2746 of 2008 filed
  by the Accused Nos.2 to 4 and quashed the proceedings
  against them. However, Criminal Petition No.3629 of 2008 filed
G by the Petitioner herein was dismissed. The present Special
  Leave Petition is directed against the said order of the High
  Court rejecting the Petitioner's petition under Section 482
  Cr.P.C. and declining to quash Complaint Case No.307 of
  2007 initiated against him.
H
  THOTA VENKATESWARLU v. STATE OF A.P. TR.                101
    PRINCL. SEC. & ANR. [ALTAMAS KABIR, J.]

     4. The submissions made by the learned counsel for the A
Petitioner before this Court have raised certain important
questions which warrant the attention of this Court.

      5. It has been submitted on behalf of the Petitioner that as
will appear from the complaint made by the Respondent No.2 8
to the Superintendent of Police, Ongole, Prakasam District,
Andhra Pradesh on 22nd March, 2007, no grounds had been
made out therein to continue with the proceedings in India,
having regard to the provisions of Section 188 Cr.P.C., which
provides as follows :
                                                                  c
    "188. Offence committed outside India - When an
    offence is committed outside India-
    (a} by a citizen of India, whether on thehigh seas or
    elsewhere; or                                                 o
    (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 anyplace within India at which he may E
    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   F
    sanction of the Central Government."

     6. Learned counsel urged that Section 188 Cr.P.C.
 recognizes that when an offence is committed outside India by
a citizen of India, he would have to be dealt with as if such
offence had been committed in any place within India at which G
he may be found. Learned counsel, however, laid stress on the
proviso which indicates that no such offence could be inquired
into or tried in India except with the previous sanction of the
Central Government [Emphasis Supplied). Learned counsel
                                                                  H
    102      SUPREME COURT REPORTS               [2011] 11 S.C.R.


A   submitted that in respect of an offence committed outside India,
    the same could not be proceeded with without previous sanction
    of the Central Government and that, accordingly, even if any of
    the offences was allegedly committed inside India, trial in
    respect of the same could continue, but the trial in respect of
s   the offences committed outside India could not be continued,
    without the previous sanction of the Central Government.

       7. On behalf of the Respondents it was urged that a part
  of the alleged offences relating to the Dowry Prohibition Act did
  appear to have arisen in India, even at the initial stage when
C various articles, including large sums of cash and jewellery were
  given in dowry by the father of the Respondent No.2. It was
  submitted that since a part of the cause of action had arisen in
  India on account of alleged offences under Sections 3 and 4
  of the Dowry Prohibition Act, 1968, the learned Magistrate
D trying the said complaint could also try the other offences
  alleged to have been committed outside India along with the
  said offences. Reliance was placed on the decision of this
  Court in Ajay Aggarwal vs. Union of India & Ors. [(1993) 3
  sec 609], wherein it had been held that obtaining the previous
E sanction of the Central Government was not a condition
  precedent for taking cognizance of offences, since sanction
  could be obtained before trial begins.

       8. The question which we have been called upon to
F consider in this case is whett:ier in respect of a series of
  offences arisihg out of the same transaction, some of which
  were committed within India and some outside India, such
  offences could be tried together, without the previous sanction
  of the Central Government, as envisaged in the proviso to
G Section 188 Cr.P.C.

         9. From the complaint made by the Respondent No.2 in
    the present case, it is clear that the cases relating to alleged
    offences under Section 498-A and 506 l.P.C. had been
    committed outside India in Botswana, where the Petitioner and
H   the Respondent No.2 were residing. At best it may be said that
  THOTA VENKATESWARLU v. $TATE OF A.P. TR.                        103
    PRINCL. SEC. & ANR. [ALTAtl:i1AS KABIR, J.]
th.e alleged offences under Sections 3 and 4 of the Dowry               A
Prohibition Act occurred witl;lin the territorial jurisdiction of the
Criminal° Courts i11 India and could, therefore, be tried    by 'the
 c·o.urts in India withouf having to.obtain the previous ·sarfotion
of the Central Government." However, we are 'still left witti the
  1   ... •·       I         44   .           . ,   ·   ·         '

question as to whether in cases where the' offences are alleged         B
to have been committed outside India, any previous sanction
is required to:be taken by the prosecuting agency, before the
trial can commence.
                                      <   l
         10. The language of Section 188 Cr.P.C. is quite clear that
when an offence is committed outside India by a citizen of India,       C
he may be dealt with in respect of such offences as if they had
been committed in lf!dia. The proviso, however, indicates.that
such offences could be inquired into or tried .only after having
obtained the previous sanction of the Central Government. As
mentioned hereinbefore, in Ajay Aggarwa/'s case (supra), it was         D
held that sanction under Section 188 Cr.P.C. is not a condition
precedent for taking cognizance of an offence and, if need be,
it could be obtained before the trial begins. Even in his
concurring
        . judgment, R.M. Sahai, J., observed
               '       \                 .     .
                                                 as follows :
                                                                        E
      "29. 'Language of the section is plain ~md simple. It
      operates where an offence is committed by a citizen of
      India outside the country. Requirements are, therefore, one
      - coll}mission of an offence; second - by~_an ·Indian
, _,. citi~en; ,anq_third T- that it should have been ,committed        F
     1outside the,country."
     Although the decision in Ajay Aggarwal's case (supra) was
rendered in the background of a conspiracy alleged to have
been hatched by the accused, the ratio of the decision is
confined to what has been observed hereinabove in the                   G
interpretation of Section 188 Cr.P.C. The proviso to Section
188, which has been extracted hereinbefore, is a fetter on the
powers of the investigating authority to inquire into or try any
ooffence mentioned in the earlier part of the Section, except
with the previous sanction of the Central Government. The               H
    104      SUPREME COURT REPORTS                [2011) 11 S.C.R.


A   fetters, however, are imposed only when the stage of trial is
    reached, which clearly indicates that no sanction in terms of
    Section 188 is required till commencement of the trial. 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
s   required before the trial could commence.
       11. Accordingly, 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 cognizanr.e stage
C without the previous sanction of the Central Government. The
  Magistrate is, therefore, free to proceed against the accused
  in respect of offences having been committed in India and to           1,
  complete the trial and pass judgment therein, without being
  inhibited by the other alleged offences for which sanction would
o be required.
        12. It may also be indicated that the provisions of the Indian
  Penal Code have been extended to offences committed by any
  citizen of India in any place within and beyond India by virtue
  of Section 4 thereof. Accordingly, offences committed in
E Botswana by ari Indian citizen would also be amenable to the
  provisions of the Indian Penal Code, subject to the limitation
  imposed under the proviso to Section 188 Cr.P.C.
        13. Having regard to the above, while we see no reason
  to interfere with the High Court's decision to reject the.
F petitioner's prayer for quashing of the proceedings in Complainf
  Case No.307 of 2007, we also make it clear that the learned
  Magistrate may proceed with the trial relating to the offences
  alleged to have been committed in India. However, in respect
  of offences alleged to have been committed outside India, the
G learned Magistrate shall not proceed with the trial without the
  sanction of the Central Government as envisaged in the proviso
  to Section 188 Cr.P.C.
          14. The Special Leave Petition is disposed of accordingly.
H N.J.                                            SLP disposed of.