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JURISDICTION[2] OF THE INDIAN PENAL CODE

Table of Contents

(Ss. 1 to 5)

QUESTION BANK

Q.1. Clearly indicate to what persons and acts the I.P.C. applies

Q.2. Discuss the Intra-territorial and Extra territorial operation of the

I.P.C. referring to decided cases.

Q.3. Jurisdiction under I.P.C. is both personal and territorial Explain?

Q.4. Write a critical note on inter-territorial and extra-territorial operation of the I.P.C.

Q.5 State and explain the applicability of Indian Penal Code.

SHORT NOTES

Application of Indian Penal Code to extra-territorial offences
Author of Crime- natural and legal person.

SYNOPSIS

I] Title and extent of the operation of the Code (S.1.)

II] Jurisdiction of the Code: –

A) Personal application of Code (S.2).

Exceptions: –

1) Presidents and Governors.

2) Foreign sovereign.

3) Foreign Ambassadors and other diplomatic representatives.

4) Alien enemies.

5) Foreign army.

6) Warships.

B) Territorial Jurisdiction.

1) Intra territorial operation of the Code (S. 2)

2) Extra-territorial operation of the Code (S. 3 and 4.)

a)
b) Extra-territorial operation.

1) On Land.

2) On high seas. (Admiralty Jurisdiction)

3) On air craft’s.

I] TITLE AND EXTENT[3] OF OPERATION OF THE CODE (S.1):-

S[4].1 of the I.P.C declares that the Code shall be the ‘Indian Penal Code’ and will operate throughout the territory of India except for the State of Jammu and Kashmir. The State of Jammu and Kashmir enjoys a special status and has its own penal Code. The Indian Penal Code came into force in 1860.

II] JURISDICTION OF THE CODE

Jurisdiction of the Code is personal as well as territorial.

A) Personal application[5] of the Code[6] (S. 2): –

(Author of Crime- Natural and Legal Person)-

The Code applies to ‘every person who may be guilty of any act or omission contrary to the provisions of this Code within India’.

S.2 provides the general principle of criminal jurisdiction over persons. It provides that ‘every person’, irrespective of nationality, allegiance, rank, status, caste, colour or creed, is liable to punishment under this Code 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[7]. 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[8]

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.

Likewise, an English man committing adultery in India can not plead that in his country, adultery is not an offence. He can be held liable for adultery in India.

To hold a foreigner liable, his corporal presence in India at the time of the commission of the actual offence is not necessary.

Exceptions[9]: –

There is no exception in favour of anyone in the Penal Code, but the following persons are always exempted from the jurisdiction of criminal courts of every country:-

1) President 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[10]:-

A foreign sovereign cannot be punished under the Code according to the rules of International law. This is because it would be incompatible with the sovereign’s independence and sovereignty to exercise jurisdiction over him by the court of any other nation. Secondly, one sovereign who is in no respect is amenable to another since he enters that country only under an express licence or in the confidence that his independence and sovereignty will be respected.

3) Foreign Ambassadors and other diplomatic representatives: –

The immunity of an ambassador from the jurisdiction of the court of the country he is accredited is based upon his being representative of the independent sovereign State. The State which sends him upon the faith of his being admitted to be clothed with the same independence of and superiority to all adverse jurisdictions as the sovereign authority to whom he represents would be (i.e. as in his own country).

4) Alien Enemies[11]: –

Alien enemies can not be tried by criminal courts in respect of war. If an alien enemy commits any offence unconnected with war, e.g., theft, he will be tried by an ordinary criminal court. They are usually dealt with under martial law (Military Law).

5) Foreign Army: –

When the army of one State is by consent on the soil of a foreign State, it is exempted from the jurisdiction of the State on whose soil it is.

6) Warships: –

Men-of-war of a State in foreign waters are exempted from the jurisdiction of the State within whose territorial jurisdiction they are.

B) Territorial Jurisdiction[12]: –

1) Intra-Territorial Operation[13] of the Code (S. 2)4: –

The words “within India” used in S. 2 denote the intra-territorial application of the Code in India.

It is a well-recognised principle of criminal jurisprudence that the exercise of criminal jurisdiction depends upon the offence’s place and not the offender’s nationality or domicile. Thus, to invoke the provisions of the Code, it must be established that the offence for which the accused is charged was committed within the territory of India. For the application of its laws, the territory of India would comprise not only its lands and internal waters, such as rivers, lakes and canals but also that portion of the sea lying along and washing its coast. It is commonly called its Maritime Zone.

The Maritime Zones of India Act, 19815, extends the maritime zone’s limit to 200 nautical miles into the sea from the shore baseline.

In Kastya Ram V/s State6

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[14] (Ss.3 and 4)7: –

Ss.3 and 4 extend to the extra-territorial operation of the Code. As discussed earlier, in order to invoke liability under S.2, the offence should have been committed in India. However, some persons enumerated in S.4 of the Code are liable to be tried by Indian Courts, even though the offence is committed by them outside India.

Thus, the offence, though committed outside India, may be tried as an offence committed in India in the following cases: –

1) If it is committed by any citizen of India in any place and beyond

India:-

The act of a foreigner committed by him in a territory beyond the limits of India does not constitute an offence against the Penal Code. Consequently, a foreigner can not be held criminally responsible under the Code by the Court of India for an act he committed beyond its territorial limits.

2) If it is committed by any person on any ship or aircraft registered in

India, wherever it may be (S.4):-

For the purpose of this section, the word “offence” includes every act committed outside India, which, if committed in India, would be punishable under I.P.C.

Illustration

‘A’, who is a citizen of India, commits a murder in Uganda. He can be tried and convicted of murder in any place in India in which he may be found.

If an offence is committed outside India by the persons mentioned above and if (he is) found within India.

He may be: –

given up for trial in the Country where the offence is committed. (Extradition), or
tried in India (extra-territorial operation).

i) Extradition[15]: –

When a criminal (whether a citizen or non-citizen of India) is found in India after having committed an offence in a foreign State with which India is on friendly terms, he can be sent back on the proper requisition of that State to stand the regular trial there. This is known as extradition proceedings effected in pursuance of extradition treaties entered with that State.

In India, the Extradition Act of 1962 regulates extradition proceedings. Before the Act, the Fugitive Offender’s Act, 1881, provided for the extradition of fugitive criminals within commonwealth countries.

In Dharma Tejas Case.

Facts: The accused, Dharma Teja, escaped to Cuba after committing a serious offence of cheating the Shipping Corporation of India and misappropriating crores of rupees. Cuba refused his extradition to India, but when he came to England, English police caught him. He was extradited to India by the English court on the Indian Government’s application.

However, extradition is not available for purely political offences.

ii) Extra-territorial Operation: – (Ss. 3 and 4)

Indian courts are empowered to try out offences committed outside of India.

1) On Land: –

The language used in Ss. 3 and 4 of the I.P.C. and S. 188 of the Criminal Procedure Code plainly mean that if at the time of the commission of the offence, the person committing it is a citizen of India, then, even if the offence is committed outside India, he is subject to the jurisdiction of the Courts of India. It clearly indicates that the jurisdiction of courts does not lose by reason of committing an offence in any other place beyond India. Thus, if an Indian citizen commits adultery in England, he may be punished in India. Though in England adultery is not an offence, it is an offence in India. Therefore, a great Indian Freedom fighter, Savarkar8 was tried by Britishers in Nasik for escaping from the custody of lawful authority in France.

Facts: – The accused of British India, Savarkar, was brought by police officers from London to Bombay. On the way, he escaped at Marseilles, Port in France, but was rearrested there, and brought to Bombay, and committed for trial for escaping from the custody of a lawful authority.

Held:- The trial is valid though the offence of escaping was committed in France.

2) On high seas (Admiralty Jurisdiction): –

The jurisdiction to try offences committed on the high seas is known as the admiralty jurisdiction. It is founded on the principle that the ship on the high seas is a floating island belonging to the nation whose flag she is flying.

Admiralty jurisdiction extends over-

i) Offences committed on Indian ships on the high sea.
ii) Offences committed on foreign ships in Indian territorial water.

Piracy[16]: –

‘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 aircraft: –

The Code’s provisions apply to any offence committed by any person on any aircraft registered in India, wherever it may be.

*****

[2] आधिकार क्षेत्र.

[3](भारतीय दंड) संहीतेचे शिर्षक व व्याप्ती. [(भारतीय दंड) संहिता का शीर्षक और दायरा।]

[4] [Note- The term “S” denotes “Section”, and “Ss.” denotes “Sections”].

[5] व्यक्तीगत अधिकार क्षेत्र. [व्यक्तिगत क्षेत्राधिकार।]

[6] S.2 provides that every person liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India.

[7] 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.

[8] (1836) 7 C& P. 456.

[9] अपवाद

[10] परकीय सार्वभौम व्यक्ती(राजा, पंतप्रधान ई.). [एक विदेशी संप्रभु (राजा, प्रधान मंत्री ई।)]

[11] परकीय शत्रू [विदेशी दुश्मन]

[12] भौगोलिक अधिकार क्षेत्र. [भौगोलिक क्षेत्राधिकार।]

[13] भुप्रदेषाअंतर्गत अधिकार क्षेत्र [भूप्रदेश के अधीन क्षेत्राधिकार।]

4 ibid Note 1.

6 (1871) 8 BHC 63.

[14] बाहय प्रदेषावर असलेले अधिकार क्षेत्र. [एक विदेशी क्षेत्र पर अधिकार क्षेत्र।]

7 S. 3, any person liable, by any Indian Law, to be tried for an offence committed beyond India, shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India.

S.4, The provision of this Code apply also to any offence committed by – 1) any citizen of India in any place without and beyond India, 2) any person on any ship or aircraft registered in India wherever it may be.

[15] गुन्हेगार हस्तांतरण.[ आपराधिक स्थानांतरण।]

8Savarkar’s Case (1910) B.L.R. 296.

[16] समुद्री चाचे.[ समुद्री लुटेरे।]