Kerala High Court: 498A Offence Committed Entirely Abroad Cannot Be Tried in India Without Central Government Sanction
In Darvin Dominic v. State of Kerala, the Kerala High Court held that where the entire alleged offence of matrimonial cruelty under Section 498A IPC was committed outside India, prosecution in India could not proceed to inquiry or trial without the previous sanction of the Central Government required by Section 188 of the Code of Criminal Procedure, 1973.
What the case was about
The petitioner was the first accused in a criminal case alleging cruelty punishable under Section 498A of the Indian Penal Code. The matrimonial couple had resided in Australia, and the husband argued that the acts attributed to him in the First Information Statement had all allegedly occurred there.
He sought quashing of the proceedings on the ground that the prosecution could not proceed in India without the previous sanction of the Central Government under Section 188 CrPC.
Kerala High Court's ruling
Justice A. Badharudeen accepted the petitioner's contention after examining the allegations relied upon for the Section 498A charge. The Court found that the overt acts constituting the alleged cruelty by the first accused were stated to have taken place outside India.
The High Court therefore held that the case fell within Section 188 CrPC and that the proceedings against the first accused were vitiated for want of previous Central Government sanction.
Why a telephone call from abroad did not change the result
The prosecution argued that there had been a threatening telephone call while the complainant was in India. The High Court nevertheless examined the specific allegations relevant to the Section 498A charge and concluded that the entire set of overt acts constituting cruelty attributed to the petitioner had occurred in Australia.
On that factual basis, the Court treated Section 188 CrPC as applicable and quashed the proceedings against the husband. It directed the Magistrate to continue the criminal case against the second accused.
Supreme Court principle in Sartaj Khan
The Kerala High Court relied on the Supreme Court's decision in Sartaj Khan v. State of Uttarakhand. The Supreme Court had explained that Section 188 CrPC is attracted when the offence is committed in its entirety outside India. If part of the offence is committed within India, normal territorial-jurisdiction principles apply and sanction under Section 188 is not required.
The decisive question is therefore not simply whether some background events occurred abroad, but whether the offence sought to be tried in India was committed wholly outside India or partly within India.
Current law after 1 July 2024
The Bharatiya Nyaya Sanhita, 2023 and the Bharatiya Nagarik Suraksha Sanhita, 2023 came into force on 1 July 2024. For new offences and proceedings governed by the new criminal laws, the corresponding provisions have changed in numbering but preserve the core legal structure.
- BNS Section 85: punishes a husband or relative of the husband who subjects a woman to cruelty.
- BNS Section 86: defines "cruelty" for purposes of Section 85.
- BNSS Section 208: governs offences committed outside India by an Indian citizen or by a person on an Indian-registered ship or aircraft.
- Previous sanction: the proviso to Section 208 states that such an offence shall not be inquired into or tried in India except with the previous sanction of the Central Government.
Section 188 CrPC and Section 208 BNSS compared
| Old law | Section 188, Code of Criminal Procedure, 1973. |
|---|---|
| Current equivalent | Section 208, Bharatiya Nagarik Suraksha Sanhita, 2023. |
| Who is covered | Indian citizens committing offences outside India and specified offences committed on Indian-registered ships or aircraft. |
| Sanction requirement | Previous Central Government sanction is required before such an offence is inquired into or tried in India under the extraterritorial provision. |
| Partial offence in India | Where a material part of the offence occurs in India, the special sanction rule may not be attracted, depending on the facts and applicable jurisdiction provisions. |
What happens to cases that began before BNSS?
The BNSS contains a saving provision for criminal proceedings that were already pending immediately before the new law came into force. Therefore, older investigations, inquiries, trials, appeals and applications may continue to be governed by the CrPC, 1973, depending on the stage and nature of the proceeding.
Final order in Darvin Dominic
The Kerala High Court allowed the petition and quashed all further proceedings in C.C. No. 153/2021 arising from Crime No. 216/2021 of Ettumanoor Police Station insofar as they concerned the first accused. The Magistrate was directed to proceed against the second accused.
Representation
Advocates Thomas J. Anakkallunkal, Anupa Anna Jose Kandoth, Jayaraman S. and Litty Peter appeared for the petitioner. Senior Public Prosecutor Renjit George appeared for the State, and Advocate Luke J. Chirayil appeared for the de facto complainant.
This article summarises the Kerala High Court judgment dated 6 June 2024 and adds the current BNS/BNSS statutory framework applicable from 1 July 2024. It was updated on 5 September 2026.