Tulip Kanth

New Delhi, April 4,2022: In a case of illicit human trafficking, the Supreme Court has dismissed an appeal agaisnt the order of conviction and held that if the offence is not committed in its entirety, outside India, the matter would not come within the scope of Section 188 of the Code of Criminal Procedure, 1973 and there would be no necessity of any sanction as mandated by the proviso to this Section. 

In this case, an Indian boy had imported a minor girl of Nepal origin for the purpose of exploitation. The accused, Sartaj Khan, was arrested and he admitted his guilt. One pocket diary, one packet of condom, two man force tablets, Indian and Nepal currency and two mobile phones were found from his possession. The appellant-accused was tried in the Court of Special Sessions Judge, Champawat, for having committed the offence punishable under Sections 363, 366-B, 370(4), 506 of the Indian Penal Code, 1860 and Section 8 of the POCSO Act.

Though, the Trial Court acquitted the appellant of the charges levelled against him but the State of Uttarakhand preferred the Government Appeal challenging the acquittal. Having found that the Trial Court had not considered the material evidence on record, the High Court set aside the order of acquittal and convicted the appellant of the offence under IPC and POCSO Act.

From the petitioner’s side it was mainly submitted that the requirements under Section 188 of the CrPC were not satisfied and no sanction in terms of said Section was placed on record. It was argued that in the absence of such sanction, the appellant could not have been tried.

Section 188 of CrPC deals with the way in which the Offence committed outside India is to be dealt with and the proviso to this section pertains to the grant of Central Government’s sanction. 

Referring to this section, the Larger Bench of Justice Uday Umesh Lalit, Justice S.Ravindra Bhat and Justice Pamidighantam  Sri Narasimha opined that in terms of Section 188, even if an offence is committed outside India by a citizen whether on the high seas or anywhere else or by a non-citizen on a ship or aircraft registered in India, the offence can still be tried in India provided the conditions mentioned in said Section are satisfied. 

Speaking for the Bench, Justice Lalit asserted,”The Section gets attracted when the entirety of the offence is committed outside India  and the grant of sanction would enable such offence to be enquired into or tried in India.”

Coming to the facts and circumstances of the case, the Bench opined that a part of the offence was definitely committed on the soil of this country and as such going by the normal principles, the offence could be looked into and tried by the Indian courts. 

“Since the offence was not committed in its entirety, outside India, the matter would not come within the scope of Section 188 of the Code and there was no necessity of any sanction as mandated by the proviso to Section 188”, said the Bench.

The Bench further affirmed that the victim had traveled on her own from Kathmandu to Atariya. However, the evidence on record completely established that she was lured into coming to India. The Bench held that the offences alleged against the appellant were thus rightly invoked and were fully substantiated. The Bench also confirmed the victim’s age to be below 18 years by relying on radiological tests and dental test undertaken by the Medical Board.

Thus, dismissing the Appeal, the Top Court concluded that the sentences awarded to the appellant could not be termed to be excessive on any count.

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