The Bharatiya Nyaya Sanhita (BNS), 2023, which replaces the Indian Penal Code (IPC), 1860, defines its jurisdictional reach in its preliminary chapter (Sections 1 to 3, formerly Sections 1 to 5 of the IPC). The BNS’s jurisdiction is founded on two core principles: territoriality and nationality.

II. Title and Extent of the Operation of the Code BNS, 2023-

Title- The Act is called the Bharatiya Nyaya Sanhita, 2023 (BNS).

Extent and Commencement (Section 1)- The Sanhita extends to the whole of India.

The BNS is the substantive criminal law of the land, meaning all acts contrary to its provisions committed within India are punishable under it, and not otherwise. It operates throughout India.

III. Jurisdiction of the Code-

A) Personal Application of the Sanhita (Principle of Liability)-

Section 1(3) establishes the rule of general application:

"Every person shall be liable to punishment under this Sanhita and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India."

It provides that ‘every person’, irrespective of nationality, allegiance, rank, status, caste, colour or creed, is liable to punishment under this Sanhita for an offence committed within India. The term ‘every person’ includes not only citizens but even non-citizens (foreigners) and a company, association, or body of persons, whether incorporated or not. However, a company or a corporate body cannot be indicted for an offence which cannot be committed by its very nature of being an artificial personality [Company cannot do all offences which could only be committed by individual human being e.g. offence of murder, treason, bigamy, rape, perjury, etc. Barring such incidences a corporate body is indicted for the criminal act or omission of its directors, authorised agents or servants whether there involve mens rea or not, provided they have acted under authority of the corporate body.]. It cannot commit offences like treason, murder, rape etc., or offences which are compulsorily punishable with imprisonment or corporal punishment.

A foreigner is as liable for committing an offence as a resident of India. A foreigner can not take the defence of ignorance of the law, not that the same act is not a crime in his State (Country).

In Crown V/s Esop [(1836) 7 C& P. 456.]

Facts: - A person was indicted for an unnatural offence committed on board an East India ship, lying in St. Katherine’s Dock (Calcutta, India). It was argued that he was a native of Baghdad, where his act would not have amounted to an offence.

Calcutta High Court held: - that it was not a legal defence he was held liable under IPC.

To hold a foreigner liable, his corporal presence in India at the time of the commission of the actual offence is not necessary. The principles of IPC are carried forward under BNS also.

This principle implies:

Uniformity: The law applies equally to all persons—citizens, foreigners and entities—committing an offence within the territorial limits of India.

Act or Omission: It covers both positive acts and failures to act (omissions) where there is a legal duty to act.

Exceptions to Personal Application

While Section 1(3) is broad, the application of BNS is subject to immunities granted by the Constitution of India and principles of Public International Law (PIL) to the following persons-

1) Presidents and Governors-

Under Art. 361 of the Constitution, the president and Governors of India are exempt from the jurisdiction of the courts. No criminal proceeding whatsoever shall be instituted or continued, and no process for arrest or imprisonment shall be issued against these high dignitaries of the State.

2) Foreign Sovereign-

Sovereign Immunity: Public International Law (Doctrine of Sovereign Immunity).

Rule: Rulers of foreign states and sovereign heads who are not subjects of the jurisdiction of the courts of India are generally immuned from criminal prosecution unless such immunity is waived by the concerned country.

3) Foreign Ambassadors and other diplomatic representatives-

Source of Immunity: The Vienna Convention on Diplomatic Relations, 1961, and customary PIL.

Rule: Diplomats, including ambassadors, high commissioners, and members of their staff, enjoy complete immunity from criminal jurisdiction in the receiving State (India). They cannot be arrested or prosecuted under the BNS, even for serious crimes, though the host government can request their recall.

4) Alien Enemies-

Rule: Alien enemies (persons belonging to a country at war with India) are subject to the BNS for criminal acts not connected with acts of war. For acts of war, they are usually subject to international laws of war or military tribunals.

5) Foreign Army-

Rule: The members of foreign armed forces passing through or stationed in India, by express or implied consent of the Government of India, are often exempt from the jurisdiction of ordinary criminal courts for offences committed in the course of their duty, especially under specific agreements (like the Status of Forces Agreement).

6) Warships-

Rule: By international convention, foreign warships and other government ships operated for non-commercial purposes are considered floating parts of their sovereign state. They enjoy absolute immunity from the criminal jurisdiction of Indian courts when in India's territorial waters.

B) Territorial Jurisdiction-

1) Intra-territorial operation of the Code (Section 1(3))-

The BNS applies to all offences committed “within the territory of India” (Intra). The territory of India is defined broadly to include:

a. The entire landmass.

b. The territorial waters (up to 12 nautical miles from the baseline).

c. The airspace above the land and territorial waters.

d. The subsoil below the land and territorial waters.

In Kastya Ram V/s State [(1871) 8 BHC 63.]

Facts: - In this case, decided in 1871, the accused sailed into the sea within three miles of the coast and removed the fishing stake belonging to the complainant.

Bombay High Court held: - that an offence committed on the high seas but within three miles from the coast of India (being committed within the territorial limits of India) was punishable under the provisions of the Indian Penal Code.

2) Extra-territorial operation of the Code (Sections 1(4) and 1(5))-

The BNS extends its reach beyond the geographical boundaries of India based on the nationality principle and the principle of protective jurisdiction. In other words, Indian courts are empowered to try out offences committed outside of India under BNS in the following circumstance-

a) Extradition-

Nature: Extradition is a separate legal process governed by the Extradition Act, which allows a fugitive offender to be surrendered by one State (where the offender is found) to another State (where the offence was committed or where the offender is liable for trial).

Relation to BNS: While BNS defines the crime, extradition is the mechanism for transferring the person to face trial under BNS or the law of the foreign country.

b) Extra-territorial Operation-

As discussed earlier, to be punished in India under BNS, the offence should have been committed in India. However, some offenders can be tried under BNS, even though the offence is committed by them outside India. The BNS directly extends its penal provisions to the following scenarios:

1) On Land (Citizens abroad and Cybercrime)-

Indian Citizens Abroad (Section 1(5)(a)): Any citizen of India committing an offence in any place without and beyond India is liable to be tried in India as if the act was committed in India.

Example: An Indian citizen commits fraud in Dubai and is later found in Mumbai; he can be tried in India under the BNS.

Protective Jurisdiction (Cybercrime) (Section 1(5)(c)): Any person committing an offence in any place without and beyond India targeting a computer resource located in India is liable to be tried in India. This is a key provision for addressing modern transnational cybercrimes.

2) On high seas (Admiralty Jurisdiction) (Section 1(5)(b))-

The BNS applies to any person on any ship or aircraft registered in India, wherever it may be.

A ship or aircraft flying the Indian flag is treated as Indian territory. This allows Indian courts to exercise Admiralty Jurisdiction over any offence committed on such vessels/aircraft, whether they are on the high seas, in foreign territorial waters, or even in foreign ports.

Piracy: -

‘Piracy jure gentium’ is an offence against all nations. According to Stephen, ‘a person is guilty of piracy jure gentium who-

a) seizes or attempts to seize any ship by violence or by putting those in possession of such ship in fear or

b) takes and carries away or attempts to take and carry away any of the goods thereon, by violence to those in possession of such ship or by putting them in fear’.

Irrespective of nationality, a pirate can be tried anywhere.

3) On air craft’s (Section 1(5)(b))-

This is covered under the same clause as ships. Any offence committed by any person on any aircraft registered in India, regardless of its physical location in the air or on the ground, falls under the jurisdiction of the BNS.

The preliminary provisions of the Bharatiya Nyaya Sanhita, 2023, lay a clear and expansive foundation for India's criminal jurisdiction, adapting colonial-era principles to modern contexts, especially regarding cybercrime and extra-territorial application.

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References-

1. “Application of BNS” https://www.youtube.com/watch?v=2Efki_KYQnQ

2. Professional’s “The Bharatiya Nyaya Sanhita, 2023”, Bare Act. 2024

3. “Explaining Section 1 of the Bharatiya Nyaya Sanhita (BNS), 2023: Understanding the Foundation of India’s New Penal Code”
https://www.legalbites.in/bharatiya-nyaya-sanhita/explaining-section-1-of-the-bharatiya-nyaya-sanhita-bns-2023-understanding-the-foundation-of-indias-new-penal-code-1068845https://www.legalbites.in/bharatiya-nyaya-sanhita/explaining-section-1-of-the-bharatiya-nyaya-sanhita-bns-2023-understanding-the-foundation-of-indias-new-penal-code-1068845

4. Bharatiya Nyaya Sanhita (BNS) 2023 – An Overview

https://www.taxmann.com/post/blog/analysis-bharatiya-nyaya-sanhita-bns-an-overview/

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