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ââLaw Masterâs Publicationâ
âJurisdictionâ
Prof. Santosh D. Bhosale
(..5..)
JURISDICTION OF THE BHARATIYA NYAYA SANHITA, 2023
(Ss. 1 to 5)
QUESTION BANK
Q.1. Clearly indicate to what persons and acts the BNS. applies
Q.2. Discuss the Intra-territorial and Extra territorial operation of the
BNS. referring to decided cases.
Q.3. Jurisdiction under BNS is both personal and territorial Explain?
Q.4. Write a critical note on inter-territorial and extra-territorial operation of the
BNS.
Q.5 State and explain the applicability of BNS.
SHORT NOTES
1. Application of BNS to extra-territorial offences
2. Author of Crime- natural and legal person.
SYNOPSIS
I. Introduction-
II. Title and Extent of the Operation of the Code BNS, 2023-
III. Jurisdiction of the Code-
A) Personal Application of the Sanhita (Principle of Liability)-
Exceptions to Personal Application
1) Presidents and Governors-
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Prof. Santosh D. Bhosale
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 (Section 1(3))-
2) Extra-territorial operation of the Code (Sections 1(4) and 1(5))-
a) Extradition-
b) Extra-territorial Operation-
1) On Land (Citizens abroad and Cybercrime)-
Indian Citizens Abroad (Section 1(5)(a)):
Protective Jurisdiction (Cybercrime) (Section 1(5)(c)):
2) On high seas (Admiralty Jurisdiction) (Section 1(5)(b))-
Piracy: -
3) On air craftâs (Section 1(5)(b))-
I. Introduction-
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 BNSâs 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 âevery personâ, irrespective of nationality, allegiance, rank,
status, caste, colour or creed, is liable to punishment under this Sanhita for an
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offence committed within India. The term âevery personâ 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
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).
Facts: - A person was indicted for an unnatural offence committed on board
an East India ship, lying in St. Katherineâs 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 personsâcitizens, foreigners and
entitiesâcommitting 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
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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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 âwithin the territory of Indiaâ
(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).
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Prof. Santosh D. Bhosale
c. The airspace above the land and territorial waters.
d. The subsoil below the land and territorial waters.
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
6 (1871) 8 BHC 63.
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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: -
âPiracy jure gentiumâ is an offence against all nations. According to Stephen,
âa 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 fearâ.
Irrespective of nationality, a pirate can be tried anywhere.
3) On air craftâs (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.
*****
References-
1. âApplication of BNSâ https://www.youtube.com/watch?v=2Efki_KYQnQ
2. Professionalâs âThe Bharatiya Nyaya Sanhita, 2023â, Bare Act. 2024
3. âExplaining Section 1 of the Bharatiya Nyaya Sanhita (BNS), 2023: Understanding the
Foundation of Indiaâs New Penal Codeâ
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ââLaw Masterâs Publicationâ
âJurisdictionâ
Prof. Santosh D. Bhosale
4. Bharatiya Nyaya Sanhita (BNS) 2023 â An Overview
5. Intra Territorial and Extra Territorial Jurisdiction Under Bhartiya Nyaya