Indian Penal Code extend to extra territorial offences

1.       Does the Indian Penal Code extend to extra territorial offences? Explain.

 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-

Inherent Jurisdiction- Here the court is not empowered to try the case;

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.

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

 

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:

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;

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:

On Land;

On the High Seas; and

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:

Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

An assault with the intention of committing rape;

An assault with the intention of gratifying unnatural lust;

An assault with the intention of kidnapping or abducting;

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;

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.

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.

High seas

High seas are open to all and represent the entire sea-space beyond the three miles limit of the shore. This expression includes all ocean seas, bays, channels, rivers, creeks and waters below low water-mark, and where great ships could go, with the exception only of such parts of such ocean and as were within the territory of some country.

Exceptions to the Intra-Territorial Jurisdiction

Section 2 of the IPC mentions “every person” within India. However, there are certain persons exempted from the jurisdiction of Criminal Courts. These persons are given certain rights, privileges, etc. This is the same position in other countries also. Such persons are:

 

Foreign Sovereigns:

They are the persons completely exempted from the jurisdiction of the Indian Criminal Courts. The principle on which the exemption of every sovereign from every Court has been deduced is that the exercise of such jurisdiction would be incompatible with his real dignity. Since a sovereign is the highest authority of his nation, he is not amenable to the jurisdiction of other countries. He is totally independent and represents the dignity of his country.

Ambassadors:

Certain immunities and privileges have been granted to Ambassadors of other countries by the Diplomatic Privileges Act, 1964 of England, the United Nations (Privileges and Immunities) Act, 1947 (Act No. XLV of 1947) of India, etc., are examples. Therefore, Ambassadors are exempted from the jurisdiction of the Indian Criminal Courts.

Alien Enemies:

An alien enemy is an individual who, due to permanent or temporary allegiance to a hostile power, is regarded as an enemy in wartime. In respect of acts of war, alien enemies cannot be tried by criminal courts. If an alien enemy commits a crime unconnected with war, he would be liable under the IPC.

The military persons of alien enemies do not come under the jurisdiction of ordinary Criminal Courts, for the acts done connecting with the war. However, if they commit theft, robbery, rape, etc., unconnected with war, they shall be tried by the Indian Criminal Courts.

Warships:

The warships entered into the Indian Sea waters cannot be tried under the ordinary Indian Criminal Courts. The Public International Law applies to such men-of-war.

President and Governors:

The President of India and the Governors of the States are exempted from the jurisdiction of the Criminal Courts, by Article 361 of the Indian Constitution.

Extra- territorial Jurisdiction

Section 3 and 4 deal with the extraterritorial operation of the Code.

Section 3 implies that if any Indian citizen does an act outside of India which is not an offence in that country but is in India, he will liable to be tried in India under IPC.

Section 3- Punishment of offences committed beyond, but which by law may be tried within, India:

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.

Section 4- Crimes committed outside India:

When an offence is committed in some other country but the offender is found in India, then

He may be given up for trial in the country where the offence was committed (extradition) or;

He may be tried in India (extra territorial jurisdiction)

Extradition: It is the surrender by one State to another of a person desired to be dealt with for crimes of which he has been accused or convicted and which are justifiable in the Courts of the other State. Though extradition is granted in implementation of the international commitment of the State, the procedure to be followed by the courts in deciding whether extradition should be granted sand on what terms is determined by the municipal law of the land. The procedure for securing the extradition from India is laid down in the Extradition Act, 1962.

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

Admiralty jurisdiction extends over-

Offences committed on Indian ships on the high seas

Offences committed on foreign ships in Indian territorial waters

In Enrica Lexie Case, a fishing boat registered in India, while fishing off the coast of Kerala was fired at from a passing Italian ship named Enrica Lexie. As a result of this, 2 out of the 11 fishermen were instantaneously killed. The ship was arrested and an FIR was registered by the Kerala Police. Later the two Italian marines were also arrested. They filed a writ petition before Kerala High Court for quashing the FIR since the incident occurred at a place which was 20.5 nautical miles from the coast of India. The writ was quashed as it was held that section 2 of the IPC gave Kerala Police jurisdiction over this incident. Subsequently, Supreme Court held that the Union of India was entitled to prosecute the accused but the same was subject to the provisions of Article 100 of UNCLOS 1982 which provides that such cases can only be conducted at the level of the Federal/Central Government and are outside the jurisdiction of the State Governments. Hence the State of Kerala has no jurisdiction to investigate into the incident and it is the Union of India which has jurisdiction to proceed with the investigation. Hence, the Supreme Court directed the Central Government to set up a Special Court to try this case.

Provisions Related to Extra Territorial Jurisdiction of in Criminal Procedure Code

Section 179: Offence triable where act is done or consequence ensues:

When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.

Section 188: offences committed outside India:

When an offence is committed outside India-

(a) by a citizen of India, whether on the high seas or elsewhere; or

(b) by a person, not being such citizen, on any ship or aircraft registered in India,

he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found. Receipt of evidence relating to offences committed outside India.

When any offence alleged to have been committed in a territory outside India is being inquired into or tried under the provisions of Section 188, the Central Government may if it thinks fit, direct that copies of depositions made or exhibits produced before a judicial officer in or for that territory or before a diplomatic or consular representative of India in or for that territory shall be received as evidence by the Court holdings such inquiry or trial in any case in which such Court might issue a commission for taking evidence as to the matters to which such depositions exhibits relate.

 

Jurisdiction of Courts to Try Such Offences

Generally, the rule is that The Courts within whose jurisdiction the offender may be found will have jurisdiction in the matter. But it may not always be so.

In Empress v. Maganlal, decided in the year 1882 interpreting the word 'found', it was opined that it was used to confer the jurisdiction to the court of a place where the accused is actually found, i.e., produced before the Court and not where a person is discovered. In other words, it would mean that an accused may be discovered by the Police at a place, not within the jurisdiction of the Court enquiring or trying but that is not the place contemplated by Section188. For the purpose of jurisdiction, it would be the court where he is actually produced or appears which can be said to have found him.

In the case of in Om Hemrajani v. State of U.P., the scheme underlying Section188 is to dispel any objection or plea of want of jurisdiction at the behest of a fugitive who has committed an offence in any other country. If such a person is found anywhere in India, the offence can be inquired into and tried by any Court that may be approached by the victim. The victim who has suffered at the hands of the accused on a foreign land can complain about the offence to a Court, otherwise competent, which he may find convenient. The convenience is of the victim and not that of the accused. It is not the requirement of Section188 that the victim shall state in the complaint as to which place the accused may be found. It is enough to allege the accused may be found in India. The Court where the complaint may be filed and the accused either appears voluntarily pursuant to issue of process or is brought before it involuntarily in execution of warrants, would be the competent Court within the meaning of Section 188 of the Code as that Court would find the accused before him when he appears. The finding has to be by the Court. It has neither to be by the complainant nor by the Police. The Section deems the offence to be committed within the jurisdiction of the Court where the accused may be found.

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