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‘‘Law Master’s Publication”
“Jurisdiction”
Prof. Santosh D. Bhosale
(..3..)
JURISDICTION OF THE INDIAN PENAL CODE
(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
1. Application of Indian Penal Code to extra-territorial offences
2. Author of Crime- natural and legal person.
SYNOPSIS
I]
Title and extent of the operation of the Code (S.1.)
Jurisdiction of the Code: -
II]
A)
Personal application of Code (S.2).
Exceptions: -
1)
2)
3)
4)
5)
6)
Presidents and Governors.
Foreign sovereign.
Foreign Ambassadors and other diplomatic representatives.
Alien enemies.
Foreign army.
Warships.
B)
Territorial Jurisdiction.
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‘‘Law Master’s Publication”
“Jurisdiction”
Prof. Santosh D. Bhosale
1)
2)
Intra territorial operation of the Code (S. 2)
Extra-territorial operation of the Code (S. 3 and 4.)
a)
b)
Extradition.
Extra-territorial operation.
1)
2)
3)
On Land.
On high seas. (Admiralty Jurisdiction)
On air craft’s.
I]
TITLE AND EXTENT OF OPERATION OF THE CODE (S.1):-
S.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 of the Code (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
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).
Facts: - A person was indicted for an unnatural offence committed on board
2
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.
3
(1836) 7 C& P. 456.
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‘‘Law Master’s Publication”
“Jurisdiction”
Prof. Santosh D. Bhosale
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: -
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:-
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: -
Alien enemies cannot 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
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‘‘Law Master’s Publication”
“Jurisdiction”
Prof. Santosh D. Bhosale
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)
1)
Territorial Jurisdiction: -
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.
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)
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: -
4 ibid Note 1.
6 (1871) 8 BHC 63.
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.
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“Jurisdiction”
Prof. Santosh D. Bhosale
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: -
i. given up for trial in the Country where the offence is committed.
(Extradition), or
ii.tried in India (extra-territorial operation).
i)
Extradition: -
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.
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‘‘Law Master’s Publication”
“Jurisdiction”
Prof. Santosh D. Bhosale
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,
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)
ii)
Offences committed on Indian ships on the high sea.
Offences committed on foreign ships in Indian territorial water.
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 aircraft: -
The Code's provisions apply to any offence committed by any person on any
aircraft registered in India, wherever it may be.
*****
8Savarkar’s Case (1910) B.L.R. 296.