Law and You > Criminal Laws > Bharatiya Nyaya Sanhita > Extent and Jurisdiction (S. 1 BNS)

List of Sub-Topics:

• Title and Date of Enactment (Ss. 1(1) and 1(2))
• Intra-Territorial Application of Sanhita (S. 1(3))
• Persons Exempted From Criminal Liabilities
• Territorial Water Jurisdiction
• Extra-territorial Application of the Sanhita (S. 1(4))
• Extension of Extra-Territorial Application (S. 1(5))
• Some Important Cases Related to Extra-Territorial Jurisdiction
• Impact of Special and Local Laws (S. 1(6))

Bharatiya Nyaya Sanhita, is the primary criminal code of India. It has replaced previous Indian Penal Code, 1860. The Bharatiya Nyaya Sanhita serves multiple objectives aimed at maintaining law and order, protecting individual rights, ensuring justice, promoting social welfare, and facilitating the orderly functioning of society. It provides a comprehensive legal framework for addressing criminal behaviour and upholding the rule of law in India.

Section 1 of the Bharatiya Nyaya Sanhita talks about title and extent of operation of the Bharatiya Nyaya Sanhita, 2023. Section 1(4) discusses intra-territorial jurisdiction, while Section 1(5) discuss extra-territorial jurisdiction of the Snhita. In this article, we shall discuss the territorial jurisdiction of the Bharatiya Nyaya Sanhita, 2023.

Title and Date of Enactment of the Sanhita:

Section 1(1) and 1(2) BNS Bare Act Provisions:

S. 1(1): This Act may be called the Bharatiya Nyaya Sanhita, 2023.

S. 1(2): It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Sanhita.

The Bharatiya Nyaya Sanhita (2) Bill was passed on December 20, 2023 by the Lok Sabha. Rajya Sabha passed it on December 21, 2023. President Draupadi Murmu on December 25, 2023 gave her assent to it. The Government has notified that the Bharatiya Nyaya Sanhita, 2023 will come in force from July1, 2024.

Intra-territorial Application of Bharatiya Nyaya Sanhita:

Section 1(3) BNS Bare Act Provisions:

S.1(3): 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.

Essentials of Section 1(3) BNS:

• An offence must be committed by any person. (Refer Section 2(26) of the Sanhita)
• The person should have committed some act or omission as per the provisions of this Sanhita.
• The person will be guilty of the offences committed within India.
• The person will be liable only under this Sanhita and not otherwise.
• The person should not be from persons in the exempted list

Explanation:

• An offence must be committed by any person. The definition of the word “person” (Section 2(26)) includes a Company or Association or body of persons, whether incorporated or not is an artificial entity created for the purpose of business. Similarly, it includes Indian nationals and foreign nationals. As long as a person is within the territories of the Indian subcontinent, they shall be liable under this Sanhita irrespective of caste, creed, nationality or rank. A foreigner is also liable for punishment under this Sanhita if he commits any act or omission within the territory of India, irrespective of whether the act or omission is an offence in their native country.
• The person will be liable only under this Sanhita and not otherwise. This means that intra-territorial jurisdiction under this Sanhita only applies to offences committed under the Sanhita and does not hold persons liable for offences committed under other Indian laws.
• The person should have committed some act or omission as per the provisions of this Sanhita. If the act or omission is not covered under the Sanhita, then the person is not liable under the Sanhita.
• The person will be guilty of the offences committed within India. They will only be held accountable in India for their actions or omissions that were committed in India as per the Sanhita.
• The person should not be in the list exempted from liability under the Sanhita like Presidents, Governors, Foreign Sovereigns, Foreign ambassadors, Diplomatic representatives, alien enemies, foreign army, and warships.

Notes:

• The phrase “of which he shall be guilty within India “limits the territorial operation of the Sanhita i.e. the offence should have been committed in Indian territory. But S.1(3) is to be read with Sections 1(4), 1(5), 47, etc. which (directly or indirectly). These Sections provide the Sanhita with its extraterritorial jurisdiction. By this section, all the offences committed on the Indian Territory are punishable under the Sanhita.
• The term “person” is defined in S.2(26).  The word “person” is an individual and includes any Company or Association or body of persons, whether incorporated or not. Company or Association or body of persons, whether incorporated or not is an artificial entity created for the purpose of business. A company is liable for the prosecution and punishment for criminal offences. The company itself cannot commit a crime but its agents may do in the name of the company. The company can be punished in terms of fines only, while its agents may be prosecuted for the criminal conspiracy.
• Here the section uses the phrase “any person”, which means it is applicable irrespective of his nationality, rank, status, caste, race, or creed. Foreigners can be tried under the Sanhita provided their acts are connected with transactions or part of transactions arising in India. Members of legislative bodies can also be tried for a criminal offence.
• The phrase “within India” means Indian Territory (land, rivers) and a territorial area in the high sea within 12 miles from the coast of India. The territorial area in the high sea within 12 miles from the cost of India is included in Indian Territory by the notification by the Government of India.

Persons Exempted from Criminal Liability Under BNS:

President and Governors: 

The President and Governors are exempt from the jurisdiction of courts in India under Article 361 of the Constitution. No criminal proceedings whatsoever shall be instituted or continued and no process for arrest or imprisonment shall issue against these high dignitaries of the States.

Foreign Sovereigns: 

A foreign sovereign (A person possessing supreme or ultimate power like monarch or supreme leader) is exempt from the jurisdiction of local courts. This protection will extend to foreign Heads of State as well.

In Shooner Exchange v. M’ Faddon, (1812) 7 Cranch 116, 136, 137 case, the question was, whether an American citizen can assert, in an American court, a title to an armed national vessel, found within the waters of the United States. Marshall C.J. observed: “One sovereign being in no respect amenable to another and being bound by 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 licence, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him.”

In the Parlement Belge Case, (1880) 5 PD 197, 207 case, there was a collision in Dover Bay between paddle ship Parlement Belge and tug Daring. Parlement Belge was owned by the king of Belgians and was carrying passengers and merchandise, as well as mail between Ostend and Dover. The owners of daring instituted proceedings in rem against a sovereign who was the owner of the vessel.  Per Brett, L.J. observed: “The real principle on which the exemption, of every sovereign from the jurisdiction of every Court, has been deduced is that the exercise of such jurisdiction would be incompatible with his legal dignity …. that is to say, with his absolute independence of every superior authority.”

Foreign Ambassadors and Other Diplomatic Representatives: 

The immunity of an ambassador (an accredited diplomat sent by a state as its permanent representative in a foreign country) and diplomats (officials representing their country abroad) from the jurisdiction of the courts of the country to which he is accredited is based upon his being representative of the independent Sovereign or State which sends him upon the faith and should enjoy similar to the sovereign of that country. Ambassadors and Diplomats are exempted due to the International Laws (United Nations Privileges and Immunities Act, 1947; Diplomatic relations Act, 19972 also known as Vienna Convention) which is part of national law.

In the Parlement Belge Case, (1880) 5 PD 197, 207 case, Per Brett, L.J. observed: “The immunity of an ambassador from the jurisdiction of the Courts of the country in which he is accredited is based upon his being the representative of the independent Sovereign or State which sends him, and which sends him upon the faith of his being admitted to be clothed with the same independence of and superiority to all adverse jurisdiction as the sovereign authority whom he represents would be.”

In Magdalena Steam Navigation Company v. Martin, (1859) 2 E & E 94, 111 case, the defendant was public minister of a foreign state. He had been received by the Court and given formal accreditation. He had no real property in Britain. A case was instituted against him. Per Lord Campbel C.J. observed: “he does not owe even temporary allegiance to whom he is accredited, and he has at least as great privileges from suits as the Sovereign whom he represents. He is not supposed even to live within the territory of the SOvereign to whom he is accredited, and if he has done nothing to forfeit or to waive his privilege, he is for all judicial purposes supposed still to be in his own country.”

Alien Enemies: 

With respect to acts of war, alien enemies cannot be tried by criminal courts. It has been held that ‘aliens’ who in a hostile manner invade our country, whether their nation is at war or peace with ours shall be dealt with by Martial Law. If an alien enemy commits a crime unconnected with war, e.g. theft, he would be triable in Criminal Courts.

Foreign Army: 

Armies of a State are exempted from the jurisdiction of the State on whose soil they are when they are on the soil of that foreign State by the consent of their State.

Warships: 

The men on warships lying in foreign waters are exempt from the jurisdiction of the State within whose territorial jurisdiction they are. This immunity is based on the principle that the Territorial State which admits to its territory an armed force or warship of a friendly foreign power undertake not to exercise any jurisdiction over such force or its ship which would be inconsistent with its existence as an efficient force.

In Shooner Exchange v. M’ Faddon, (1812) 7 Cranch 116 case, Emperor Napoleon had commissioned a French ship. According to French Law, it was a French warship. When the ship was in American territorial waters, an American citizen Monsieur Faddon claimed that the ship originally belonged to him and requested the Supreme Court to deliver the same to him. The US Supreme Court held that it could not exercise jurisdiction over this ship.

IMP: No Privileges to Members of Legislative Bodies: 

In Justice Ripusudam Dayal (Retd.) v. State of MP, AIR 2014 SC 1335 case, the Court held that no privilege is available to the Legislative Assembly to give immunity to them against the operation of laws.

Territorial Water Jurisdiction of BNS:

The territory of India is defined under Article 1 of the Constitution of India as “India, that is Bharat, shall be a Union of States. The States and the territories thereof shall be as specified in the First Schedule. The territory of India shall comprise (a) the territories of the States; (b) the Union territories specified in the First Schedule; and (c) such other territories as may be acquired.”

Article 297 of the constitution deals with the maritime territory. It authorizes the Parliament to specify from time to time the limits of various maritime zones such as territorial waters, continental shelf, etc.

The phrase “within India” means Indian Territory (land, rivers) and a territorial area in the high sea within 12 nautical miles from the coast of India. The territorial area in the high sea within 12 nautical miles (22.2 km) from the cost of India is included in Indian Territory by the notification by the Government of India dated 39^th September 1967. Section 7 of the 1976 Act defines the Exclusive Economic Zone of India as an area beyond and adjacent to territorial waters up to a limit of 200 nautical miles (370 km).

The territory of a State comprises its ports and harbours, the mouth of its rivers, and its land-locked bays. By the usage of nations, territorial jurisdictions extend also to marine league sea-wards. This belt of the sea is known as “Territorial waters”.

Thus Section 1(3) of the Sanhita should be read with S.3 and 7 of Territorial Water Act with reference to Exclusive Economic Zone (up to 200 nautical miles from the coastline of India).

Beyond the territorial limit, in the high seas, the Code is ineffective against foreign property and foreigners.

In Kastya Rama v. State, (1871) 8 BHC, the fishers of village ‘A’ lawfully fixed fishing stakes in the sea within three miles from the shores. The fishers of village B, annoyed with their act, removed all the fishing stakes. On prosecution accused pleaded that their act could not come within the purview of the Indian Penal Code. The Bombay High Court held that the act of fishers of village ‘B’ was within the purview of the Indian Penal Code (Now the Bharatiya Nyaya Sanhita), and particularly their act would be “mischief” as defined in the Code, and place of the offence was within three miles from the shores and were covered within the territory of India.

Crime Committed in India by a Foreigner:

In R v. Esop, (1836) 173 E.R. 203 case, where the person charged with violating a published law is a stranger to the jurisdiction (India) and claims in defence that the act in question was not an offence under the law of that person’s home jurisdiction (Baghdad). The Court rejected this defence and convicted him for the offence.

In Mobarik Ali v. The State of Bombay, AIR 1957 SC 857 case, Mobarik Ali, a rice merchant in Karachi, promised to supply 2000 tons of rice and received the maximum amount from a rice merchant in Goa. While staying in Karachi he made false representations through letters, telephone conversations and telegrams to the rice merchant in Goa and did not supply the rice. He fled to England and settled in London. His partners Santran, A. A. Rowji, and S. A. Rowji absconded. The Indian authorities made an application to the Metropolitan Magistrate, Bow Street, London. who ordered the arrest of the appelant. He was brought to Bombay where, he was prosecuted for cheating. The Supreme Court observed that the basis of jurisdiction under S. 2 IPC (S. 1(3) of the Bharatiya Nyaya Sanhita) is the locality where the offence is committed and that the corporeal presence of the offender in India is immaterial. The Supreme Court held that the offence was committed by the accused at Bombay even though he was not physically present there.

In State Of Maharashtra vs Mayer Hans George, AIR 1965 SC 722 case the accused was a German national. He was on his way from Zurich to Manila on a Swiss aircraft which arrived in Bombay while in transit. He remained within the aircraft and did not come out. He did not file a declaration under the Foreign Exchange Regulation Act, 1947, regarding the gold he was carrying. During the checking, the customs found the gold on aircraft. The accused was booked under the Foreign Exchange Regulation Act, 1947. The cause of action arose in India. The Supreme Court held that his trial and conviction under the Indian law was valid.  The Court also held that it is not necessary for Indian law to be published outside India so that foreigners can know about them. Thus Ignorance about the Law or any change in it cannot be pleaded.

In Issub Ibrahim, Pary’s Oriental Cases, (1945) 57 case, the Court held that the courts of the state have jurisdiction over its port, harbours, the mouths of its rivers and its land-locked bays.  The right of innocent passage granted to a foreign state and the privileges granted to public ships in port and in part to private ships are concessions, which leave the general principles of sovereignty intact.

Extra-territorial Application of Bharatiya Nyaya Sanhita:

Section 1(4) BNS Bare Act Provisions:

S. 1(4): Any person liable, by any law for the time being in force in India, to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Sanhita for any act committed beyond India in the same manner as if such act had been committed within India.

Illustration: A, who is a citizen of India, commits a murder in any place without and beyond India. He can be tried and convicted of murder in any place in India in which he may be found.

Essentials of Section 1(4) BNS:

• An offence must be committed by any person. The definition of the word “person” (Section 2(26) BNS) includes a Company or Association or body of persons, whether incorporated or not is an artificial entity created for the purpose of business. Similarly, it includes Indian nationals and foreign nationals.
• A person must be liable under Indian law.
• The offence must be committed beyond the territory of India, either geographical or marine.
• Such persons shall be bound by Indian law for any offence committed outside India, as though the offence was committed within India.

In this section, the word “offence” includes every act committed outside India which, if committed in India, would be punishable under this Sanhita. Thus the offence in India is also an offence outside India.

A key ingredient of this section is in the phrase “any person liable, by any Indian law”. This section operates only where an Indian Law which specifically provides that an act committed outside India may be dealt with under that law in India. For such thing, there should be a provision similar to S. 1(4) of the Sanhita in that Act. Thus Section 1(4) of the Sanhita postulates that before any person can be tried in India for an offence committed beyond India, there must be in existence a law making him liable to be so tried. It means an Indian citizen who committed an offence outside India which was not an offence according to the laws of the country in which he stays would still be liable to be tried in India if it was an offence under Indian Laws.

In Mobarik Ali v. The State of Bombay, AIR 1957 SC 857 case, The Supreme Court held that the basis of jurisdiction under S. 2 (S. 1(3) of the Bharatiya Nyaya Sanhita) is the locality where the offence is committed and that the corporeal presence of the offender in India is immaterial. In that case, the accused, a Pakistani national, while staying at Karachi made false representations through letters, telephone conversations and telegrams to the complainant at Bombay and induced the latter to part with money at Bombay. When the accused subsequently came to Bombay he was prosecuted for cheating. The Supreme Court held that the offence was committed by the accused at Bombay even though he was not physically present there.

In Sheikh Haidar v. Issa Syed, AIR 1938 Nagpur 235 case, the defendant was charged with taking part in child marriage which is a crime in India but not a crime outside British India. The Court held that the Child Marriages Restraint Act, 1929 does not contain any provision for its extraterritorial application (as S. 4 of IPC / S. 1(5) of the Bharatiya Nyaya Sanhita) and, therefore, does not apply to marriage outside India.

If an Indian citizen commits adultery in England, which is not a crime there, he is guilty of it on the grounds that he is an Indian citizen and adultery is a crime defined under section 497 of the Code.

Extension of Extra-Territorial Application of Anhita:

Section 1(5) BNS Bare Act Provisions:

S. 1(5): The provisions of this Sanhita shall also apply to any offence committed by –

(a) any citizen of India in any place without and beyond India;

(b) any person on any ship or aircraft registered in India wherever it may be;

(c) any person in any place without and beyond India committing offence targeting a computer resource located in India.

Section 1(5)(a) BNS:

“The provisions of this Sanhita shall also apply to any offence committed by any citizen of India in any place without and beyond India“

The rationale behind the extension of criminal jurisdiction of the courts in India, even if the offence is committed by citizen beyond or outside India, is based on the contention that every sovereign state can regulate the conduct of its citizens, wherever they might be for the time being.

The Geneva Conventions (Act VI of 1960) provides for jurisdiction over non-nationals committing offences abroad. Section 1(5)(a) lays down the active Nationality principle as guided by the Geneva Convention. Where an offence is committed beyond the limits of India but the offender is found within its limits, then

1. he may be given up for trial in the country where the offence was committed (extradition), or
2. he may be tried in India (extraterritorial jurisdiction).

Provision of Section 1(5)(a) is applicable to citizens of India only. It is not applicable to persons who are not the citizen of India at the time of the offence.

The term ‘without’ of Section 1(5)(a) must be read as a corollary to ‘beyond India’. The term ‘without’ is specified to emphasize on such person who is a citizen of India but his place of residence or presence is such that the Indian Government cannot exercise its sovereign power over him directly. e. g. foreign territory or high seas. The phrase ‘beyond India’ could also mean territories covered by another sovereign State. But ‘Without’ could mean such regions where no other sovereign government exercise its power. International territory in the airport is such a region. Domestic laws could not be exercised in such regions.

The word “found” refers to the place where a person is actually present. Even a man is brought to a place against his will, he can be said to be found there.

In Swatantrya Veer Savarkar Case, (1910) 13 BLR 296 case, the accused Swatantrya Veer Savarkar was being brought by police officers from London to Mumbai. On the way, he escaped 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.

In Sarmukh Singh, (1879) 2 All 218 case, a soldier in the Indian Army, committed murder in Cyprus while on service in such army and was charged with the offence at Agra. The Court held that he is triable for the offence by the Criminal Court at Agra.

In K.T.M.S. Abdul Kader v. Union of India, 1977 CrLJ 1708 (Mad-FB) case, the Court held that Parliament has the power to pass laws having extra-territorial operation. Such law is not invalid merely because of the incapability of enforcement outside the territories. Such law may be ineffective, so long as the foreigner remains outside India, but he may be dealt with when he is found inside the country.

Section 1(5)(b) BNS:

“The provisions of this Sanhita shall also apply to any offence committed by any person on any ship or aircraft registered in India wherever it may be“

The principle of international law is that a ship on the high seas is a floating territory of the country whose flag she is flying. Section1(5)(b) is in accordance with this principle. This ship and aircraft are the floating territories of the country in which they are registered.

The provision of Section1(5)(b) provides jurisdiction to Indian Courts for offences committed by any person, whether Indian or a foreigner, on any ship or aircraft registered in India wherever it may be. An Indian ship wherever sailing, whether in the high seas or in any other waters and Indian aircraft wherever flying are territories of India and any offence committed on them by any person of whatever nationality is subject to be dealt with in accordance with the provisions of the Bharatiya Nyaya Sanhita.

Admiralty Jurisdiction:

Admiralty Jurisdiction is the jurisdiction which confers the power on Courts to try offences which are committed on high seas. This type of jurisdiction was introduced by various statutes such as the Admiralty Offences Act, 1849, Colonial Courts of Admiralty Act 1890 with the Indian Colonial Courts of Admiralty Act 1891, and the Merchant Shipping Act, 1894.

The principle behind this jurisdiction is the notion that a ship which floats on the high seas is like a floating island. Admiralty jurisdiction can be exercised in the following cases:

• Offences which are committed on Indian ships on high seas.
• Offences which are committed on foreign ships within Indian territorial waters.
• Piracy

In the Republic of Italy through Ambassador v. Union of India, (2013) 4 SCC 721  or popularly known as 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. Indian Coast Guard got hold of Enrica Lexie near the Lakshadweep Islands and compelled it to proceed to Kochi. Subsequently, two Italian Marines were arrested and charged for the offence of murder. 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 within the contiguous zone area of India’s Exclusive Economic Zone. Italy cited Article 97 of the United Nations Convention on the Law of the Sea (UNCLOS), which stated that “In the event of a collision or any other incident of navigation concerning a ship on the high seas, only the flag state of that ship can launch penal proceedings”. The writ was quashed as it was held that section 2 of the IPC gave Kerala Police jurisdiction over this incident.

The Italian Government appealed in the Supreme Court. India based its jurisdictional claims on domestic legislation, which confers jurisdiction upon Indian Courts to try any person, citizen, or foreigner, in respect of an offence committed on board a ship registered in India. The Court held that as per the notice by the Indian Government issued in pursuant of the Convention on the Law of the Sea, India has jurisdiction, and thus, the case can be triable in India. Further Coourt held that the prosecution 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, Supreme Court directed the Central Government to set up a Special Court to try this case.

Section 1(5)(c) BNS:

“The provisions of this Sanhita shall also apply to any offence committed by any person in any place without and beyond India committing offence targeting a computer resource located in India”

Section 75 of the Information Technology Act 2000 must be read along with Section 1(5)(c) of the Bharatiya Nyaya Sanhita. Section 75 of the Information Technology Act 2000 states that

“Act to apply for an offence or contravention committed outside India –

(1) Subject to the provisions of sub-section (2), the provisions of this Act shall apply also to any offence or contravention committed outside India by any person irrespective of his nationality.

(2) For the purposes of subsection (1), this Act shall apply to an offence or contravention committed outside India by any person if the act or conduct constituting the offence or contravention involves a computer, computer system or computer network located in India.”

This section of the Information Technology Act 2000 lays down that it will apply to any persons who commit any offence or contravention outside the territory of India. It explicitly mentions that it will apply to any person, irrespective of their nationality.

For the purpose of Section 1(5)(c) BNS, the expression “computer resource” has the same meaning as is assigned to it by S. 2(1)(k) of the Information Technology Act 2000, namely a computer, computer system, computer network, data, computer database or software.

In Mohamed Sajeed v. the State of Kerala, 1995 CRILJ 3313 case the accused committed an offence in Gulf countries, and came back to India. The Division Bench ruled that the police can investigate a crime committed in a foreign country. The prior sanction of the Central Government for purposes of investigation is not necessary.

Piracy:

Piracy is an act of robbery or criminal violence by ship or boat-borne attackers upon another ship or a coastal area, typically with the goal of stealing cargo and other valuable goods. Those who conduct acts of piracy are called pirates, while the dedicated ships that pirates use are called pirate ships. Acts of piracy threaten maritime security by endangering, in particular, the welfare of seafarers and the security of navigation and commerce. These criminal acts may result in the loss of life, physical harm or hostage-taking of seafarers, significant disruptions to commerce and navigation, financial losses to ship owners, increased insurance premiums and security costs, increased costs to consumers and producers, and damage to the marine environment.

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides the framework for the repression of piracy under international law, in particular in its articles 100 to 107 and 110.

The Division for Ocean Affairs and the Law of the Sea, as the secretariat of UNCLOS, has a mandate to provide information and advice on the uniform and consistent application of the provisions of UNCLOS, including those relevant to the repression of piracy. It also has the mandate to provide information on relevant developments in oceans and the law of the sea to the General Assembly, as well as to the Meeting of States Parties to UNCLOS, in the annual reports of the Secretary-General on oceans and the law of the sea. These reports provide updated information on developments in respect of piracy and other crimes at sea.

Section 208 Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (S. 188 CrPC, 1973):

Under the Ss. 1(4) and 1(5) of the Bharatiya Nyaya Sanhita (Ss. 3 and 4 of the Indian Penal Code) and S. 208 Bharatiya Nagarik Suraksha Sanhita (S. 188 CrPC), Local Courts can take cognizance of offences committed beyond the territories of India. This can be done when any Indian citizen does an act outside of India which is not an offence in that country but is in India. Section 208 Bharatiya Nagarik Suraksha Sanhita (S. 188 of CrPC) also provides that when an offence is committed outside India-

• by a citizen of India, whether on the high seas or elsewhere; or
• 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:

In such case, the offence shall be inquired into or tried in India only with the previous sanction of the Central Government.

In Remia v. Sub Inspector of Police, Tanur (1993 Cri LJ 1098 (Ker) ) case a sub-inspector of police refused to register a case of murder on the ground that the offence was committed in Sharjah, UAE, outside his territorial limits. The Kerala High Court after examining Ss. 3 and 4 IPC and S. 188 Cr PC (Ss. 1(34) and 1(5) BNS and S., 208 BNSS) held that refusal by the sub-inspector was illegal.

In Om Hemrajani v. State U.P (2004 (9) SCALE 655) case, the Supreme Court discussed at length the law of the jurisdiction under S. 188, Cr PC (S. 208 BNSS). A Dubai based bank has filed a complaint against the petitioner and another in the Court of Special Judicial Magistrate (CBI) under Ss. 415, 417, 418 and 420 read with S. 120-B IPC. It has been, inter alia, alleged in the complaint that the petitioner obtained loans, executed various documents in proof of his ability to discharge the bank liability and gave his personal guarantee. He had no intention to pay it back. But instead of discharging the liability, the accused absconded from the UAE without liquidating his liability to the bank. The Magistrate took cognizance of the offence and issued processes against the person arraigned in the complaint and also issued non-bailable warrants. The petitioner sought quashing of the complaint case by filing a petition under S. 482 of the Code before the high court and also challenged the order of the Magistrate taking cognizance of the offence along with non-bailable warrants issued against him. The question before the court was whether the court at Ghaziabad had jurisdiction to entertain the complaint? The court held that a victim may come to India and approach any court convenient to him and file a complaint in respect of offence committed abroad by the Indian. The convenience of a person who is hiding after committing offence abroad and is fugitive from justice is not relevant.

In Samaruddin v. Assistant Director of Enforcement, 2009 (1) KLT 943  case, the Court held that Indian courts do not have authority to try any offence committed outside the territory of India without the prior sanction of the Central Government.  

Some Important Cases Related to Extra-Territorial Jurisdiction:

The Bofors Scam:

India signed a deal with Swedish arms manufacturer AB Bofors for the supply of 400 units of 155 mm Howitzer guns for the Army. A year later, a Swedish radio channel alleged that the company had bribed top Indian politicians and defence personnel to secure the contract. The Central Bureau of Investigation (CBI) lodged an FIR against the then president of Bofors Martin Ardbo, the alleged middleman Win Chadda and the Hinduja brothers for criminal conspiracy, cheating, and forgery. The first charge sheet in the case was filed against Chadda, Ottavio Quattrocchi, the then defence secretary S K Bhatnagar, Ardbo, and the Bofors company. A supplementary charge sheet was filed against the Hinduja brothers. The Supreme Court held that the Indian Courts have competent jurisdiction to prosecute and enquire the wrong-doers with the help of foreign countries’ invistigation.

Dr. Ambati Dowry Case:

The family of Dr Balmurali Ambati settled in America. He is an American citizen. He was registered in the Guinness Book of World Records for finishing his M.B.B.S. at the age of 18 years. He married an Indian girl from the State of Karnataka. There was a dispute between the couple and the girl returned to her parent’s home. She registered a complaint in Karnataka Police Station that her husband Dr Ambati demanded dowry and ill-treated her. A case was registered against Dr Ambati under Section 498 A of the IPC. After some time, Dr Ambati visited India for his medical conference, where he was arrested by the police and a criminal case was prosecuted against him. The prosecution is in accordance with the jurisdiction of the IPC. After trial, Dr Ambati was discharged by the Court from the allegation.

Certain Laws not to be Affected by the Sanhita:

S. 1(6) BNS Bare Act Provisions:

S. 1(6): Nothing in this Sanhita shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India or the provisions of any special or local law

In Case of Mutiny or Desertion:

Officers engaged in the Government services are provided with this privilege as they are serving the nation. Treating them in the same manner as all offenders are treated under the Bharatiya Nyaya Sanhita may not be right.

 This section excludes the jurisdiction of the Bharatiya Nyaya Sanhita in cases of mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India. Mutiny and desertion needed to be tackled separately. Many other countries also do likewise. Accordingly, this section specifically mentions that the Code shall not affect the provisions of any Act punishing mutiny and desertion in the Army, Navy or Air Force. The main Acts in this connection are the Army Act, 1950, Navy Act, 1957, Air Force Act, 1950 and Air Force and Army Laws (Amendment) Act, 1975.

If there are situations where the person has been discharged or dismissed from his duty from the services and he is no longer involved in the service of serving the nation, in that case, the provisions of the Bharatiya Nyaya Sanhita will be accordingly applicable to such person.

In Case of Special Law or Local Law:

Special or local laws have not been repealed, modified, suspended or affected by the enactment of the Bharatiya Nyaya Sanhita. Section 2(30) of the Sanhita defines a special law as a law applicable to a particular subject and a local law as a law applicable only to a particular part of India.

It has been held that if an act is punishable under a special or local law as well as under the Bharatiya Nyaya Sanhita, it will be punished under the Sanhita. On the other hand, it has also been held that if a special Act, complete in itself, makes certain act punishable, the jurisdiction under the Sanhita is not permissible.

e.g. MCOCA in Maharashtra a local Law is used for certain crimes than the Bharatiya Nyaya Sanhita.

In no case can a person be punished for an offence under a special or local law as well as under the Sanhita. This is in consonance with section 26, General Clauses Act, 1897 which states that “Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.”

Conclusion:

The Bharatiya Nyaya Sanhita is applicable to the whole of India. Under Section 1(3) of the Code, the Code is applicable to all persons including foreign national who have committed an offence defined in the Sanhita in the territory of India. The person will be liable only under this Sanhita and not otherwise. President, Governors of States, Foreign ambassadors, Diplomatic representatives, Warships, Alien enemies, Foreign army are excluded from the jurisdiction of this code.

Crime is said to be extraterritorial when it is tried in a country other than the one in which he committed it and Jurisdiction refers to the practical authority or the dominion which is conferred upon a legal body so that it can administer justice within that defined field of authority.  Sections 1(4) and 1(5) of Bharatiya Nyaya Sanhita confers extraterritorial jurisdiction to the Sanhita. According to Section 1(4) of the Act, any person who commits an act beyond the territorial limits of the country but the repercussions of such an act is such that it has been committed within the territory of India. Then such a person could be dealt with in accordance with the provisions of the Sanhita for the act committed by him even though in the country in which he committed the act is not an offence under the ordinary laws of that country. Section 1(5) of the Bharatiya Nyaya Sanhita expands the ambit of application of Section 1(4) of the Act. According to Section 1(5) of Indian Penal Code, when an offender has committed an offence outside the territory of India but is found within the territory of India. Then there are two courses of actions which may be resorted to: First he can be sent to the country where the effect of his wrongdoing took place the process is called extradition, or he may be tried in accordance with the criminal laws of India. Section 1(6) of the Sanhita provides a saving clause and excludes its jurisdiction over the matters for which there are separate provisions or separate laws.

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