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Analyse The Concept Of Intra-Territorial And Extra-Territorial Jurisdiction In IPC

The Indian Penal Code, 1860 is one of the most comprehensive penal code anywhere in the world as it came into force on 1st January 1862 where it is a territorial law. It extends to the whole of India except the State of Jammu and Kashmir.

Sections 1 to 5 of Indian Penal Code, 1860 deals with the provisions relating to title, extent, operation and Jurisdiction of the code.

Jurisdiction:

It is an aspect of state sovereignty and it refers to judicial, legislative and administrative competence. Jurisdiction may be defined as power or authority of a court to hear and determine a case, to adjudicate and exercise any judicial power in relation to it by taking cognizance of matters presented before the court. There are two kinds of the jurisdiction of courts-
  1. Inherent Jurisdiction- Here the court is not empowered to try the case;
  2. Local Jurisdiction- It means the limit of the area in which the court can exercise its powers.

Intra-Territorial Application Of The Code (Section- 2)

Section 2 talks about the Punishment of offences committed within India. It lays down that for every act or omissions contrary to the provisions of the Code, every person shall be held liable. To hold a person liable under this Code, the act or omission contrary to the law must have been committed within India.

As seen above, the territorial jurisdiction of a State, therefore, extends into the sea as far as twelve miles. The territorial jurisdiction includes land plus the portion of the sea washing its coasts up to twelve miles into the sea. This is called as Maritime territory of a State. In India, it extended to twelve miles under the Notification of the Government of India on 30th September 1967.

In a case decided by Bombay High Court, Emp. V Kastya Rama (1871) 8 Bom H.C.R. 63, the accused sailed into the sea within three miles of the coast, and removed the number of fishing stakes belonging to the complainant. It was held that the local criminal court had jurisdiction over the offenders, that the Code applied to the case, and offence amounted to mischief,
Under Section 2, all persons are held liable for offences committed by them without any reference as to rank or nationality, caste, or creed.

Thus if a German or Frenchman commits adultery in India, he will be held liable under this code, He cannot plead that, in his country adultery is not an offence. Although such ignorance of Indian law is not the defence, yet, it is a matter to be considered by the court for mitigation or punishment.

There is an interesting case decided by the Calcutta High court (Crown v. Esop, (1836) 7 C & P. 456), the accused was indicted for an unnatural offence committee on board an East India ship, lying in St. Katherine's Docks. It was argued that he was a native of Baghdad where his actions would not have amounted to an offence. However, the court held that this was not a legal defence.

Section 2 mentions Every Person-

The IPC is primarily meant to punish offences committed by natural persons. Section 2 of the Code makes it clear that ‘every person' shall be amendable to the jurisdiction of the code irrespective of caste, creed, nationality[1], religion, rank, or sex, for offences committed within Indian territory.

In case of Mobarak Ali vs. State of Bombay AIR 1957 SC 857, a Pakistani citizen, while staying in Karachi made false representations and induced the complainant to part with money amounting to over rupees five lakh to the agents of the accused at Bombay, so that rice could be shipped from Karachi to India as per agreement.

But the rice was never supplied. The accused was arrested, while he was in England, and brought to Bombay through extradition proceedings, where he was prosecuted and convicted under Section 420 of the Penal Code for Cheating. The Supreme Court upheld the conviction and held that the offence was committed by the accused at Bombay, even though he was not physically present there at that material time.

It includes not only citizens but non- citizens and even foreigners visiting the country. However, it does not include a non- judicial person such as a corporation or a company, because a company cannot be indicted and charged for offences, such as murder, dacoity, robbery, adultery, bigamy, rape, etc as these can only be committed by a human being. Of course, a corporation is liable for criminal acts or omissions of its directors or agents or servants[2] and for contempt of court on the principles of vicarious liability.

Thus, a foreigner entering into India and committing an offence is punishable under the Code. Section 2 is based on the principle that every person present on the country's soil is under the protective net of its laws and therefore, must also be accountable for any offence, that he may commit while present in that contrary, according to its laws.

But there are a few classes of persons who are not liable to be punishable for any crime under the code:
  • The President and the Governor of the State: Under Article 361of Constitution of India, the President and the Governor of States are exempted from civil and criminal proceedings.
  • Foreign Sovereigns: A foreign Sovereign cannot be punished under the code according to the rules of international law[3].
There are mainly two reasons for the exemption of Sovereign from jurisdiction of the courts.
  1. Firstly, the exercise of jurisdiction of the Courts of one country over a foreign Sovereign of another country would be incompatible with the independence and Sovereignty of the Sovereign
     
  2. Secondly, on Sovereign being no respect amenable to another, can be supposed to enter a foreign country only under an express license, or in the confidence that the immunities belonging to his independent sovereign status, though not expressly stipulated are reserved by implication, and that the same would be extended to him. Whatever the reasoning behind the principle may be, the States do extend immunities to Sovereigns on the principle of comity and reciprocity.

In Schooner Exchange v. M. Faddon [(1812) 7 Cranch 116] Chief justice Marshall observed that one Sovereign being bound by the obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license or in confidence that the immunities belonging to his independent sovereign nation, though not expressly stipulated, are reserved by implication, and will be extended to him.
  • Officers of the UNO and its institutions[4]: UN is an intergovernmental organisation. It has its branches and affiliated institutions in each and every country. In carrying out their object of the officers of the above organisation and its institution are exempt from the jurisdiction of criminal courts.
     
  • Ambassadors: An ambassador cannot be punished under the code according to the rules of international law[5]. Ambassadors are exempted from the jurisdiction of the Indian Criminal Courts. They enjoy the same immunity as the Sovereign or the State, which they represent. They enjoy the immunity on a mutual basis.
     
  • Alien Enemies: The military persons of alien enemies cannot be tried by Criminal Courts of India in respect of their acts of war. If an alien enemy commits a crime unconnected with war as theft, cheating, etc he would be tribal under Criminal Court. For acts of war, they shall be dealt under martial law.
     
  • Foreign Army: When by consent of one State the armies of other State are on the soil they are exempted from the jurisdiction of State.
     
  • Warships: Warships of one State, when in foreign waters, are exempt from the jurisdiction of the State within whose territorial jurisdiction they are. This is in according to the rules of international law[6]. A State or nation can waive this immunity.

Extra-Territorial Operation Of The Code:

Section 3 and 4 relate to the extraterritorial operation of the code. As seen above, in order to invoke liability under Section 2, the offence should have been committed in Indian soil. But there are certain types of persons enumerated in Section 4 of the Code, who are liable to be tried by Indian Courts, even though they have committed offences outside India.

Section 3 and 4 lay down that an offence committed outside India may be tried as an offence committed in India in the following three causes, namely when an offence is 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;
  3. Any person in any place without and beyond India committing an offence targeting a computer resource located in India.
For the purpose of this Section, the word offence includes every act committed outside India which, if committed in India would be punishable under the Indian Penal Code.
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, but the offender is found within India:
  • He may be given up for trial in the country where the offence was committed (extradition); or
  • He may be tried in India (extraterritorial jurisdiction)

Extradition:
Extradition means the surrender of a fugitive offender by one State to another, in which he is liable to be punished. Such a surrender of a person, whether a citizen or an alien, is a political act done in pursuance of treaty or an ad hoc arrangement between the two States. It is based on the principle that the crimes should not go unpunished. It is thus a part of the comity of nations that one State should offer to another, every assistance in punishing persons guilty of such crimes. The procedure for securing the extradition of a person from India is to be found in the Extradition Act, 1962.

In the case of Remia v. Sub-inspector of Police, Tanur, 1993 CrLJ 1998 (Ker):
In this case, an Indian citizen murdered another Indian citizen in a foreign country. The police refused to register an FIR on the ground that, the offence was committed outside India. The court held the refusal was illegal and directed to register the crime and proceed for investigation in accordance with the law under Section 3 of the Indian Penal Code.

Extraterritorial Jurisdiction:
In exercise of their extraterritorial jurisdiction, Indian courts are empowered to try offences committed outside India:
  1. On Land;
  2. On the High Seas; and
  3. On Aircraft.

A) On Land:
By virtue of Section 3 and 4 of IPC, Indian Courts can take cognizance of offences committed outside the limits of India. In this connection, it is also relevant to refer to the provisions of the Criminal Procedure Code, which provide that when an offence is committed by:
  • Any citizen of India in any place without and beyond India;
  • Any person on any ship or aircraft registered in India, wherever it may be-
He may be dealt with, in respect of such an offence, as if the offence had been committed at any place in India at which such a person may be found.

In the case of Emperor v. Vinayak Damodar Savarkar, (1911) 13 Bom LR 296, the accused, Savarkar was being brought by police officers from London to Bombay. On the way, he escaped at Marseilles, France, but was rearrested there, and brought to Mumbai, and committed for trial by the Special Magistrate at Nasik. It was held that the trial was valid. It was immaterial that Savarkar was brought in India against his wishes.

An Indian citizen is liable to be tried by the Indian courts for acts done by him partly within and partly outside India, provided that such acts amount together to an offence under IPC.

B) On the High Seas:
The High Courts of Mumbai, Kolkata, and Chennai and the Presidency Magistrates in India have the power to try offences committed on High seas. The jurisdiction to try offences committed on the high seas known as Admiralty Jurisdiction. It is founded on the principle that a ship on the High Seas is floating island belonging to the nation whose flag is flying.

Such jurisdiction extends over:
  • Offences committed on Indian ships. Such offences may be committed – on the high seas or river, or at a spot where the municipal authorities of a foreign country might exercise concurrent jurisdiction.
  • Offences committed on foreign ships in Indian territorial waters.
  • Piracy- Piracy Jure Gentium is an offence against all nations. It consists of any illegal act of violence, detention or any act of depredation committed for private ends, by those abroad a private ship or private aircraft, and directed against a ship or persons or property on the high seas.
As a pirate is one who is dander to the vessels of all nations, irrespective of the nationality of the pirate, he can be tried everywhere. Admiralty jurisdiction extends to pirates who are foreigners in the case of Piracy Jure Gentium.

C) On Aircraft:
The provision of the IPC also applies to any offence committed by any person on any aircraft registered in India, wherever it may be.

Liability Of Foreigner:
A foreigner who is in no way connected to India, either as being a citizen of India, or as being a citizen of India, or as being on an Indian ship or aircraft, is not liable to be tried in Indian Courts for an offence committed by him outside India.

Therefore, Jurisdiction in Indian Penal code is one of the essential element to hold the person liable if he has committed an offence within India or where an Indian national has committed any offence outside India should be held liable and need to be tried in Indian courts such that no one escapes from the punishment and proper action is done against the accused.
In a nutshell according to Section 2 of IPC Every Person is held liable without discrimination in terms of sex, creed, nationality, caste, etc with certain exceptions which are according to the norms of International law thus if any person commits an offence under the code of IPC within India he/ she would be prosecuted in Indian soil and in the jurisdiction of Indian courts.

On the other hand, the according to Section 3 and 4 IPC also extends its hands to the extraterritorial operation were Indian national commits any offence outside India he would be charged and prosecuted in Indian courts with one of the processes of Extradition.

But there is a drawback where the code does not lay down any time- limit for prosecution of the accused, the Criminal Procedure Code lays down the certain time limit for taking cognizance of offences by the courts. The reason for not laying down any time- limit for prosecution of serious offences is based on the Latin maxim- ‘Nullum Tempus occurrit regi'- meaning, the right of a State to prosecute an accused is not barred by lapse of time.

When can the right to private defence extend to the causing of death of a person?
The right of private defence is the right to protect one's own person and property against the unlawful aggression of others. It is inherent in man and is based on the cardinal principle that it is the first duty of man to help him.

The right of private defence of body extends, under the restrictions mentioned in the preceding section, to the voluntary causing death or of any other harm to the assailant, if the offence which occasions the exercise of the right is of any of the descriptions hereinafter enumerated, namely:
  1. Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
  2. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
  3. An assault with the intention of committing rape;
  4. An assault with the intention of gratifying unnatural lust;
  5. An assault with the intention of kidnapping or abducting;
  6. An assault with the intention of wrongfully confining a person under circumstance which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release;
  7. An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.[7]
The right of private defence of the body can be used to cause the assailant's death[8] but this right is subject to restriction laid down by Section 99. In other words, the apprehension must be reasonable and force inflicted must be proportionate, that is, not greater than what is necessary. If it is disproportionate the inflictor is not protected.

In the case of Karamat Hussain vs. Emperor, AIR 1938 Lah. 269: Here the accused in order to save/ protect his sister from a merciless beating by her husband intervened and killed him. It was held that the accused was entitled to the right of private defence under such circumstances.

In the case of State of U.P vs. Gajey Singh (2009) 11 SCC 414, the defendant was allowed the right of private defence when upon being hit on his head with a sharp-edged weapon, he fired a single gunshot killing one of the assailants.

Essential Four Conditions:

Moreover, before taking the life of a person four cardinal conditions must be present:
  • The accused must be free from fault in bringing the encounter;
  • Presence of impending peril to life or of great bodily harm, either real or apparent as to create an honest belief of existing necessity;
  • No Safe or reasonable mode of escape by retreat;
  • A necessity for taking the assailant's life.

Apprehension Of Death:

The apprehension must be reasonable. Whether it was reasonable or not is a question of fact. In deciding this weapon used, the manner of using it, the nature of the assault and other surrounding circumstances must be taken into account[9].

Punishment:

The court will decide the punishment after considering whether there was a reasonable apprehension of death or not.

References
Webliography:
  • http: //lawtimesjournal.in/ jurisdiction.php

Bibliography:
  • Code of Criminal Procedure, B.B.Mitra, 21st edition, Kamal Law House Kolkata, Vol 1
  • Indian Penal Code, B.M. Gandhi's Fourth Edition
  • R.V. Kelkar's Criminal Procedure
  • Ratanlal & Dhirajlal, Commentary on The Code of Criminal Procedure, 18th enlarged Ed, Vol.1
  • Ratanlal & Dhirajlal, Law of Crimes, Enlarged Edition
  • Takwani, Criminal Procedure, 3rd Ed. Lexis Nexis
  • The Code of Criminal Procedure, by Batuklal
  • The Code of Criminal Procedure, S.N.Misra, Central law Publication

End-Notes:
  1. Mobarik Ali Ahmed vs. State of Bombay, AIR 1957 SC 857
  2. State of Maharashtra v. Syndicate Transport Co.(P) Ltd., AIR 1964 Bom 195
  3. United Nations Privileges and Immunities Act, 1947
  4. Walker, Oxford Companion to law(1980) 600
  5. United Nations Privileges and Immunities Act, 1947
  6. United Nations Privileges and Immunities Act, 1947
  7. Ins. By Criminal Law (Amendment) Act, 2013
  8. Abdul Kadir vs. State of Assam, 1985 SCC 603
  9. Darshan Singh vs. State of Punjab(2010) 2 SCC 333

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