This is a fascinating intersection of criminal procedure and extraterritorial jurisdiction. The recent order by the Varanasi Special MP/MLA Court—directing a fresh hearing on a complaint against Rahul Gandhi for remarks made in New York—raises a critical legal question. By reversing the Magistrate’s initial dismissal, the Sessions Court relied heavily on the Supreme Court’s precedent in Ajay Agarwal v. Union of India.
However, a close reading of the statute and the precedent suggests the Special Court may have misapplied the Ajay Agarwal judgment. Here is a critical legal analysis of the court’s reasoning, the application of Section 208 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) / Section 188 of the Criminal Procedure Code (CrPC), and why this ruling is legally vulnerable.
The Procedural Backdrop
The dispute stems from remarks Rahul Gandhi allegedly made at Brown University in the United States in 2025, where he reportedly referred to Lord Ram as a “mythological and fictional character.”
A local advocate filed a complaint seeking the registration of an FIR under various sections of the Bharatiya Nyaya Sanhita (BNS), alleging hate speech and hurt religious sentiments.
- The Magistrate’s Stance: The Chief Judicial Magistrate (CJM) dismissed the plea at the admission stage. The reasoning was straightforward: because the alleged act occurred entirely outside India, Section 208 of the BNSS mandates prior sanction from the Central Government before the court can initiate proceedings.
- The Special Court’s Reversal: The Additional District and Sessions Judge (MP/MLA Court) set aside this dismissal. The judge ruled that government sanction under Section 208 BNSS is only required at the trial stage, not at the initial stage of cognizance or inquiry. To justify this, the court cited Ajay Agarwal v. Union of India, concluding that prior sanction is not a prerequisite to registering an FIR or taking cognizance.
The Statutory Mandate: Section 188 CrPC / 208 BNSS
To understand the flaw in the Special Court’s reasoning, we must look at the exact phrasing of Section 188 of the CrPC (now Section 208 BNSS).
The provision allows Indian courts to prosecute Indian citizens for offences committed abroad. However, it contains a strict safeguard—the proviso states that no such offence shall be “inquired into or tried” in India except with the previous sanction of the Central Government.
The legislature’s use of the phrase “inquired into” is deliberate. Under criminal procedural law, an inquiry encompasses every step a Magistrate takes before the trial actually begins. This includes taking cognizance of an offence or applying judicial mind to direct the police to register an FIR under Section 156(3) CrPC (now 175 BNSS). If a Magistrate lacks the jurisdiction to inquire without a sanction, they inherently lack the jurisdiction to order an investigation.
The Misapplication of the Ajay Agarwal Precedent
The Special Court relied on Ajay Agarwal to rule that sanction is not a condition precedent for taking cognizance. While the Supreme Court did make that observation in Ajay Agarwal, the Special Court seemingly stripped that observation from its defining factual context.
In Ajay Agarwal, the accused were involved in a cheating and forgery conspiracy. Crucially, the criminal conspiracy was hatched in Chandigarh, India, even though the substantive acts of cheating occurred in Dubai. Because criminal conspiracy (Section 120B) is a standalone offence, and because it took place on Indian soil, Indian courts had automatic territorial jurisdiction over the conspiracy. Therefore, the Supreme Court ruled that no prior sanction was needed to take cognizance of the conspiracy. The sanction under Section 188 CrPC was only required later, to try the substantive offences committed in Dubai.
Applying that logic to the Rahul Gandhi case reveals a glaring disconnect:
| Feature | Ajay Agarwal v. UoI | Rahul Gandhi Case |
|---|---|---|
| Locus of the Offence | Chandigarh (India) and Dubai | Entirely in New York (USA) |
| Domestic Nexus | Conspiracy hatched on Indian soil | No part of the act occurred in India |
| Sanction for Inquiry? | Not required (due to domestic conspiracy) | Required (purely extraterritorial) |
The Supreme Court in Ajay Agarwal explicitly noted that its ruling did not disturb previous precedents (such as In Re Varghese) which established that if an offence is committed wholly outside the territory of India, strict adherence to the proviso is mandatory. For entirely extraterritorial offences, sanction is a sine qua non (an absolute prerequisite) even for the court to conduct an inquiry.
Why the Special Court’s Order is Legally Vulnerable
By extending the Ajay Agarwal exception to a purely extraterritorial act, the Varanasi Special Court’s ruling suffers from three foundational flaws:
- Ignoring Statutory Text: The court has effectively rewritten Section 208 BNSS to read “tried” instead of “inquired into or tried.” If sanction is only needed at the trial stage, the words “inquired into” in the statute become entirely redundant, violating basic principles of statutory interpretation.
- Conflating Partial and Pure Extraterritoriality: The court failed to distinguish between an offence with a domestic anchor (like the conspiracy in Ajay Agarwal) and an offence that is factually and geographically isolated to a foreign sovereign’s territory.
- Bypassing Executive Prerogative: The purpose of the sanction proviso is to protect international comity and prevent double jeopardy. It allows the Central Government—not a local Magistrate—to evaluate whether an individual should be subjected to the domestic criminal justice system for acts done abroad. By ordering a fresh hearing without this executive sanction, the Special Court is bypassing a statutory safeguard meant to prevent frivolous parallel prosecutions.
Ultimately, while the Sessions Court has directed the Magistrate to hear the matter afresh, the Magistrate’s original reasoning remains statutorily sound. Without Central Government sanction, the domestic judicial machinery simply lacks the jurisdictional trigger to inquire into remarks made entirely on foreign soil.
Disclaimer & Undertaking: The views and analytical opinions expressed in this article are solely those of the author, Advocate Ishani Goyal, a practicing advocate at the Supreme Court of India and the Punjab & Haryana High Court, Chandigarh. The contents of this article are intended for academic and informational purposes only and do not constitute formal legal advice or representation.
