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INDIAN PENAL CODE

PROJECT

TERRITORIAL AND EXTRA-


TERRITORIAL JURISDICTION
UNDER THE INDIAN PENAL
CODE, 1860

Submitted to: MS. Ivneet Submitted By: Alok


Walia Anand
Assistant Professor of Law Roll No. - 15211
Group No. 29
Acknowledgement

I have taken efforts to this project. However, it would not have been possible
without the kind support and help of many individuals and organisations. I
would like to extend my sincere thanks to all of them. I am highly indebted to
Dr. Shilpa Jain for their guidance and constant supervision and for providing
necessary information regarding the project. I would like to express my
gratitude towards my parents and members of Rajiv Gandhi National University
of Law for their kind co-operation and encouragement which helped me in
completion of this project.
Table of Content
Contents
Acknowledgement ............................................................................................................................. 2
Table of Content ................................................................................................................................ 3
TERRITORIAL AND EXTRA- TERRITORIAL JURISDICTION UNDER THE INDIAN PENAL
CODE, 1860...................................................................................................................................... 4
Intra-Territorial Jurisdiction of the Indian Criminal Courts ................................................................ 5
Extra Territorial Jurisdiction .............................................................................................................. 7
Provisions Related with “Extra Territorial Jurisdiction of CRPC” .................................................. 7
CRIMES COMMITTED OUTSIDE INDIA: ..................................................................................... 9
Extradition: .................................................................................... Error! Bookmark not defined.
Extra territorial Jurisdiction of CRPC: ............................................................................................... 9
Offences Committed on Land: ....................................................................................................... 9
Offences Committed on ship:......................................................................................................... 9
Committed on Aircraft: ................................................................................................................ 10
Offences Committed by Indian Citizens beyond India: ................................................................. 10
Offences committed by Foreigners in India: ................................................................................. 10
Offences Committed By Foreigners outside India: ....................................................................... 11
Sanction under Section 188:......................................................................................................... 11
Which Court Can Try Such Offences: .......................................................................................... 11
Conclusion: ................................................................................................................................. 13
CONCLUSION .................................................................................. Error! Bookmark not defined.
References....................................................................................................................................... 14
BIBLIOGRAPHY .............................................................................. Error! Bookmark not defined.
1. TERRITORIAL AND EXTRA- TERRITORIAL
JURISDICTION UNDER THE INDIAN PENAL
CODE, 1860

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.1

There are two kinds of jurisdiction of courts-

a) inherent jurisdiction,

b) local jurisdiction.

By want of inherent jurisdiction, it is meant that the court is not empowered to try the case. The
local jurisdiction means the limit of the area in which the court can exercise its power.2 The lex
fori or law of jurisdiction controls all matters pertaining to remedial as distinguished from
substantive rights. If question of jurisdiction is raised the trial can be commenced after deciding
that question.3

Territorial Jurisdiction or local jurisdiction is provided just as a matter of convenience, keeping


in mind the administrative point of view with respect to the work of a particular court, the
convenience of the witnesses who have to appear before the court.4 Under the English Law, 'all
crimes are local' and are triable at the common law by the courts within whose jurisdiction they
are committed.5

Section 2 of the Indian Penal Code deal with the intra-territorial jurisdiction and section 3 & 4
deals with Extra-territorial jurisdiction.

In Cr.P.C, the basic rule is reflected in Section 177 which reads that proper and ordinary venue
for trial of a crime is the area of jurisdiction in which, on the evidence, the facts occur and
which are alleged to constitute the crime. 6 The word "ordinarily" 7 , however, suggests that
certain exceptions are implicit and they are not limited to these specially provided in the CRPC.
Specific Exceptions have been laid down in Sections 179 to 185 and 188.8

1
Ujjam Bai vs Uttar Pradesh, AIR 1962 SC 1621
2
The Code of Criminal Procedure, Batuk Lal, 2nd ed., p. 291
3
The Code of Criminal Procedure, Dr. N.V. Paranjape, 3rd ed., p. 212
4
Janardan Reddy v. State of Hydrabad, AIR 1951 SC 217
5
Abraham v. Inspector of police ,AIR 2004 SC 4286
6
Narumal v. State of Bombay, AIR 1960 SC 1329
7
Section177 of Criminal Procedure Code, 1973
8
TAKWANI CRIMINAL PROCEDURE, 3rd ed., p. 110
2. Intra-Territorial Jurisdiction of the
Indian Criminal Courts
As per Section 2 of the Indian Penal Code, which deals with the, intra-territorial jurisdiction-
every person shall be 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.

The words “Every person” clearly say that subject to the General Exceptions (Chapter-IV),
every person, irrespective of his caste, region, religion, etc., shall be punished, if he is proved
guilty under the provisions of this Code.

Foreigner

A foreigner, who is a guilty of any offence under this Code, shall be punishable under this
Code, if he has committed any offence in India, although the alleged offence might have not
been an offence in his motherland.

In State of Maharashtra v. Mayer Hans George9, a German National left Zurich for Manila by
a Swiss Plane with 34 Kilos of gold. He had not declared it in the manifest for transit. The
plane arrived at Bombay. The passenger had remained in the plane. The Indian custom
authorities, on search, recovered the gold carried by him on his person. He was prosecuted for
importing gold into India under the Foreign Exchange Regulation Act, 1973.

Corporations
A company is liable to be persecuted and punished for criminal offenses. Although there are
earlier authorities to the fact that the corporation can not commit a crime, the generally accepted
modern rule is that a corporation may be subject to indictment and other criminal process
although the criminal act may be committed through its agent.

However, a corporation can’t be imposed corporal punishments for the offences which can be
committed by human beings only, viz., murder, treason, perjury, etc.

“Within India”10
The expression “within India” in section 2 of the IPC points out towards the intra-territorial
jurisdiction of the Indian Penal Code. This includes the whole land territory of India, the
maritime belt of India which presently extends up to twelve nautical miles in the sea, the whole
air space over and the area underneath this total area. The maritime belt, which is also known
as territorial waters, is measured from the appropriate base line.

9
1965 (1) SCR 123 : AIR 1965 SC 722 : 1965 (1) CrLJ)
10
Sec 2 of the Indian Penal Code, 1860
The Indian Parliament has kept itself abreast with the latest development in the field of
international law and has enacted the Territorial Waters, Continental Shelf, Exclusive
Economic Zone and other Maritime Zones Act, 1976 Section 3 (2) of which has extended the
territorial waters of India to twelve nautical miles.

In 1977 the Exclusive Economic Zone has also been extended to two hundred nautical miles.
If any offence relating to property is committed within this zone, the Indian criminal
jurisdiction will naturally extend to it.

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.

2.1 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: Foreign Sovereigns are the persons completely exempted from
the jurisdiction of the Indian Criminal Courts. 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: 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.

Foreign army: The Foreign army personnel entered into the Indian territories with the
permission of the Indian Government is exempted from the jurisdiction of the criminal
courts. There are many instances when a foreign army is based on the soil of another
country with the consent of the host country.

Every person
This provision subjects every person to punishment under this Code who violates any provision
of the Code by his act or omission of which he shall be guilty within India. The use of the
expression ‘every person’ in this section and not ‘any person’ as in sections 3 and 4 (2) is
deliberate. No distinction has been made of nation, rank, caste or creed of the person and
whoever violates any provision is liable to punishment. A foreign national committing an
offence within India can be punished.

Mobarik Ali v. State of Bombay


In the famous case of Mobarik Ali v. State of Bombay a national of Pakistan made certain false
representations from Karachi by letters, telegrams and telephones to the complainant at
Bombay on the belief of which the complainant paid a certain amount of money to the agent
of the Pakistani at Bombay.

The Supreme Court held that the Pakistani national was subject to the jurisdiction of the Indian
Courts for having committed the offence of cheating and as the appellant had already
surrendered to the authorities of India under the provisions of the Fugitive Offenders Act, 1881
in connection with another case, his conviction was valid under section 420, Indian Penal Code.

Esop’s case
In the Esop’s case a foreigner had committed an unnatural offence on an Indian ship lying in
St. Katherine’s Docks. His defence that he was a foreigner and that in his country such an act
was not an offence was rejected on the ground that the act was an offence under the Indian
Penal Code and that it was committed on an Indian ship which was Indian Territory.

3. Extra Territorial Jurisdiction

Sections 3 and 4 of the IPC deals with the extra-territorial operation of the Indian Penal Code.

Section 3 provides for the 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 of the IPC is an Extension of Code to extra-territorial offences. It applies to –

• Any citizen of India in any place of the world.


• Any person on any ship or aircraft registered in India wherever it may be.

• any person in any place without and beyond India committing offence targeting a
computer resource located in India

In this Section the word “offence” includes every act committed outside India which, if committed in
India, would be punishable under this Code.

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

Sections 3 and 4 of the IPC give the Indian Courts to inquire into offences, done by the
Indians, committed outside India. If the offences committed on any ship or aircraft registered
in India, irrespective of his nationality, he can be inquired by the Indian Courts.

Provisions Related with “Extra Territorial Jurisdiction of CRPC”


Section 188 of the CRPC deals with the 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 com- mitted at
any place within India at which he may be found

189. 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.

The Section 188 of the CRPC provides for extra-territorial jurisdiction over
Indian citizens as well as Non-Indian Citizens.

Language of the Section is plain and simple. It operates where an offence is


committed by a citizen of India outside the country. Requirements are, therefore,
one - commission of an offence; second - by an Indian citizen; and third - that it
should have been committed outside the country.
The Section specifies two cases in which a person is triable for offence committed
out of India, namely, - (a) When an Indian citizen commits an offence in any
place either on the high seas or elsewhere, and (b) When any person, not being
such citizen, commits an offence on any ship or aircraft registered in India.

CRIMES COMMITTED OUTSIDE INDIA


Where an offence is committed beyond the boundary of India but the offender is
found within limits, two contingencies arise: - a) the offender may be given up
for trial to the country where the offence was committed (extradition) and b) the
offender may be tried in India (extra-territorial jurisdiction).

Extra territorial Jurisdiction of CRPC


The Indian courts are empowered to try offences committed out of India either
on land or on ship, or on aircraft.

Offences Committed on Land

By virtue of Section 3 and 4 of Indian penal Code and Section 188 of CRPC, local
courts can take cognizance of offences committed beyond the territories of
India.11 It was held in Om Hemrajani v. State of U.P.12, that section 188 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 convenience of victim is of importance. It
is clear that neither the place of business nor place of residence of the petitioner
and for that matter of even the complainant is of any relevance.

Offences Committed on ship

The jurisdiction to try offences committed on high seas is known as admiralty


jurisdiction. It is founded on the principle that a ship on high seas is a "floating
island" belonging to the nation whose flag she is flying. It extends over Indian
vessel, not only when they are sailing on the high seas, but also when they are in
the rivers of a foreign country at a place below bridges, where tides ebbs and
flows and where great ships go. It makes no difference whether ship is made fast
to the bottom of the river by anchor and cable, the admiralty jurisdiction extends
over Indian ships although they may be at a spot where municipal authorities of
a foreign country might exercise concurrent jurisdiction, if invoked.
11
Central bank of India v. Ram Narain, AIR 1955 SC 36
12
2005 1 SCC 617
The accused, an English sailor, stole three chests of tea out of a British vessel,
when it was lying in a river in China. It was urged that as the vessel was 20-30
miles from the sea, the offence was committed on high seas. It was held the
offence was committed within the admiralty jurisdiction.13

Committed on Aircraft

The provisions of the CRPC have been made applicable to any offence committed
by any person on any aircraft registered in India, wherever it may be. In Mayor
Hans George14 the accused was a German national travelling in a Swiss aircraft
from Zurich to Manila. When the aircraft landed at Bombay on 28 the November,
1962, in transit, he remained within the aircraft. He had not filed a declaration
regarding the Gold he was carrying on his personas required under Foreign
Exchange Regulation Act, 1947 as amended on 8 November, 1962. He was
therefore, apprehended, tried and convicted in India for the violation.

Offences Committed by Indian Citizens beyond India

Clause (a) of Section 188 of CRPC deals with the offence committed by Indian
Citizen at any place beyond India. The jurisdiction of the courts is not lost because
venue of offence is in foreign country. The case of Central Bank of India v.
Ram Narain15 dealt with the offence committed outside India, by a person who
acquired Indian citizenship after he had committed the said offence – It was held
that the person had not acquired the citizenship of India at the time of offence,
and therefore Section 4 of the Indian Penal Code and Section 188 of the Code of
Criminal Procedure Code was not applicable.

Offences committed by Foreigners in India


Crimen trahit personam: The Crime carries the person. 16 The commission of
Crime gives the court of the place where it is committed jurisdiction over the
person of the offender. The fastening of criminal liability of a foreigner for
offences committed in India are judicially attributable to him notwithstanding that
he is corporeally not present here at the time of commission of a crime is not give

13
Thomas Allen 1837 1 Mood CC 494
14
AIR 1965 SC 722
15
AIR 1955 SC 36
16
Law of Crimes ,Ratan Lal Dhirajlal, Enlarged
extra-territorial operation of the law; for it is in respect of an offence whose
locality is in India, that the liability is fastened on that person.17

Offences Committed By Foreigners outside India

There is no express enactment by which the Indian legislature can assume to


render foreigners subject to the criminal law of India with reference to acts
committed by them beyond the limits of India.18

In Fatma Bibi Ahmed Patel vs State of Gujarat & Anr19 on a complaint by the
appellant's daughter-in-law, C.J.M., Gujarat take cognizance of the offence
alleged to have been committed by the appellant. But the appellant was not a
citizen of India and according to the provision of 188 of Cr.P.C, this Section will
be attracted only when alleged accused has to be a citizen of India even if offence
was committed outside India or by any person or any ship or aircraft registered
in India. An act will not be construed as applying to foreigners in respect to acts
done by them outside the dominions of the sovereign power enacting. That is a
rule based on international law, by which one sovereign power is bound to respect
the subjects and the rights of all other sovereign powers outside its own territory.

Sanction under Section 188

Sanction under sec. 188 is not a condition precedent to taking cognizance of the
offence. If it need be, it could be obtained before the trial begins. Where the
conspiracy was hatched at Chandigarh mere presentation of bill of lading at Dubai
or payment at Dubai which were not isolated acts and were part of chain activities
between the appellant side and his associates to cheat the bank at Chandigarh;
prior sanction prior sanction of Central Government under the Section was not
necessary.20

Which Court Can 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. Maganlal21 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

17
Mobarik Ali Ahmed, AIR 1957 SC 857
18
Supra Note 17
19
2008 6 SCC 789
20
Ajay Agarwal v. Union of India, AIR 1993 SC 1637
21
ILR Bom 6 622
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 said to have found him.

In Emperor v. Vinayak Damodar Sarvarkar22 the contention that the accused


is charged before a Magistrate with an offence under the Penal Code and was
brought there illegally from a foreign country was rejected. An illustration was
given in that a man commits a crime, say murder, in a country but he escapes to
some other country before he is apprehended, the Police finding him in some
other country, brings him to England and produces him before a Magistrate. It
would not be open to the Magistrate to refuse to commit him.

The Court held that "If he were brought here for trial, it would not be a plea to
the jurisdiction of the Court that he had escaped from justice, and that by some
illegal means he had been brought back". In the above decision of the Court
cannot be said to be a good law in the present times when we have to follow due
process of law where even a legal act done through illegal means will be illegal
only. The principle of fruit of a poisonous tree must follow here. I hold that the
above observation of the court does not qualify to be a good law in a democratic
society.

In the case of in Om Hemrajani v. State of U.P. 23 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.
22
1910 (35) ILR 223
23
2005 1 SCC 617
Conclusion
As a general rule, every offence must be inquired into and tried by the court within
whose jurisdiction it was committed. At the same time however, if any offence is
inquired into or tried by a magistrate who has no territorial jurisdiction over the
place of offence, it would amount to irregularity and the trial would not be vitiated
nor the conviction and sentence set aside on the ground of wrong place of trial
unless it has occasioned failure of justice.

At the same time, however, the prosecution cannot choose a wrong court by
ignoring the clear provision of the code. The provision of Section 462 of Cr. P.C.
protect proceedings initiated in a wrong court if failure of justice has not
occasioned thereby. But that Section does not empower the magistrate to proceed
with a trial with his eyes open to the fact of want of territorial jurisdiction.

Whenever an objection as to jurisdiction of the court is raised, trial cannot proceed


unless that question is decided. If the defect regarding jurisdiction is pointed out
before the commencement of the trial, it should be set right immediately. But if
an objection as to the place of trial is not raised at the preliminary stage, such
objection may not be raised by an appellate or revisional court if no prejudice is
caused to the accused.

Finally it should be remembered that the court has to decide the question of
jurisdiction with reference to the facts stated, allegations levelled and averments
made in the complaint and charge-sheet not on the basis of the defense of the
accused. But the facts are positively disproved or the court is satisfied that it has
no jurisdiction to entertain the complaint, the court will have to return the
complaint to the complainant for the presentation to the proper court.
References
1. Ujjam Bai vs Uttar Pradesh, AIR 1962 SC 1621
2. The Code of Criminal Procedure, Batuk Lal, 2nd ed., p. 291
3. The Code of Criminal Procedure, Dr. N.V. Paranjape, 3rd ed., p. 212
4. Janardan Reddy v. State of Hydrabad, AIR 1951 SC 217
5. Abraham v. Inspector of police ,AIR 2004 SC 4286
6. Narumal v. State of Bombay, AIR 1960 SC 1329
7. Section177 of Criminal Procedure Code, 1973
8. TAKWANI CRIMINAL PROCEDURE, 3rd ed., p. 110
9. 1965 (1) SCR 123 : AIR 1965 SC 722 : 1965 (1) CrLJ)
10. Sec 2 of the Indian Penal Code, 1860
11. Central bank of India v. Ram Narain, AIR 1955 SC 36
12. 2005 1 SCC 617
13. Thomas Allen 1837 1 Mood CC 494
14. AIR 1965 SC 722
15. AIR 1955 SC 36
16. Law of Crimes ,Ratan Lal Dhirajlal, Enlarged
17. Mobarik Ali Ahmed, AIR 1957 SC 857
18. Supra Note 17
19. 2008 6 SCC 789
20. Ajay Agarwal v. Union of India, AIR 1993 SC 1637
21. ILR Bom 6 622
22. 1910 (35) ILR 223
23. 2005 1 SCC 617