Section 188 and 189 CrPC: Offences Committed Outside India and Receipt of Foreign Evidence

Sections 188 and 189 of the Code of Criminal Procedure, 1973 dealt with the Indian criminal court process where an offence was committed outside India and with the receipt of evidence relating to such an offence. This article explains the provisions as they applied before the Bharatiya Nagarik Suraksha Sanhita, 2023 came into force.

Legal position: The Bharatiya Nagarik Suraksha Sanhita, 2023 came into force on 1 July 2024. The corresponding provisions are Sections 208 and 209 BNSS. This page is focused on the CrPC provisions applicable under the pre-BNSS legal framework and should be read with the applicable saving and transitional provisions where proceedings span the change in law.

Meaning and scope of Section 188 CrPC

Section 188 CrPC was part of the chapter dealing with the jurisdiction of criminal courts in inquiries and trials. It addressed specified offences committed outside India and created a statutory basis for dealing with the offender in India.

Section 188 CrPC - 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 who is not an Indian citizen, on any ship or aircraft registered in India,

the person may be dealt with in respect of that offence as if it had been committed at any place within India at which the person may be found.

The proviso requires the previous sanction of the Central Government before such an offence is inquired into or tried in India.

The provision therefore dealt with extraterritorial offences in two principal situations: offences committed abroad by Indian citizens, and offences committed by non-citizens on ships or aircraft registered in India.

Previous sanction of the Central Government

The proviso to Section 188 imposed an important condition on the inquiry or trial in India: the previous sanction of the Central Government was required. The sanction requirement relates to the inquiry or trial contemplated by the section and is a significant procedural safeguard in prosecutions based on conduct outside India.

The alleged offence must fall within the extraterritorial situations described in Section 188.
An Indian citizen could be covered whether the alleged offence occurred on the high seas or elsewhere outside India.
A non-citizen could be covered where the offence was committed on an Indian-registered ship or aircraft.
For inquiry or trial in India under Section 188, previous sanction of the Central Government was required.

Section 189 CrPC: Receipt of evidence relating to offences committed outside India

Section 189 operated in connection with an offence being inquired into or tried under Section 188. It enabled the Central Government, where it considered appropriate, to direct that specified foreign depositions and exhibits be received as evidence by the Indian court.

How Section 189 CrPC operated

Where an offence alleged to have been committed outside India was being inquired into or tried under Section 188, the Central Government could direct that copies of depositions made or exhibits produced before a judicial officer in or for the foreign territory, or before an Indian diplomatic or consular representative there, be received as evidence by the court holding the inquiry or trial.

This applied in a case in which the Indian court could issue a commission for taking evidence concerning the matters to which those depositions or exhibits related.

Relationship between Sections 188 and 189 CrPC

Provision	Subject	Practical function
Section 188 CrPC	Offence committed outside India	Provided the jurisdictional mechanism for specified extraterritorial offences and required previous Central Government sanction for inquiry or trial in India.
Section 189 CrPC	Receipt of evidence relating to offences committed outside India	Allowed specified depositions and exhibits from outside India to be received as evidence when the statutory conditions were satisfied.

CrPC provisions and the corresponding BNSS provisions

For current law, Section 188 CrPC corresponds to Section 208 BNSS, while Section 189 CrPC corresponds to Section 209 BNSS. Section 208 BNSS retains the requirement of previous Central Government sanction and also refers to the place where the offence is registered in India. Section 209 BNSS expressly includes depositions and exhibits in physical or electronic form.

Pre-BNSS provision	Corresponding BNSS provision
Section 188 CrPC - Offence committed outside India	Section 208 BNSS - Offence committed outside India
Section 189 CrPC - Receipt of evidence relating to offences committed outside India	Section 209 BNSS - Receipt of evidence relating to offences committed outside India

Key takeaway

Under the pre-BNSS CrPC framework, Sections 188 and 189 formed a connected mechanism for dealing with specified offences committed outside India and for receiving relevant evidence originating abroad. Section 188 addressed jurisdiction and Central Government sanction, while Section 189 addressed the evidentiary mechanism for qualifying foreign depositions and exhibits.

Note: This article is for general legal information. The applicable procedural law may depend on the date of the alleged offence, commencement of proceedings and statutory saving provisions.