Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Concept Application 1.4 (Essay Type Answers 12/16 Marks)

These are the FAQs asked on territorial jurisdiction of BNS. These are 12/16 Marks questions and answer is expected in about 1000 to 1200 words.

Essay Type Questions on Territorial Jurisdiction of BNS

Q1. Discuss Intra-Territorial Jurisdiction of the Bharatiya Nyaya Sanhita with relevant case laws.

Sections 1 of the Bharatiya Nyaya Sanhita, 2023 (BNS) talks about the jurisdiction of the Sanhita. Section 1(3) BNS discusses territorial or intra-territorial jurisdiction, while Sections 1(4) BNS and 1(5) BNS discuss extra-territorial jurisdiction of the Sanhita. The Sanhita is applicable to the whole of India.

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

The definition of the word “person” 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 India, 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 BNS 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 BNS, then the person is not liable under BNS.

The person should not be in the list exempted from liability under Section 1(3) of the Sanhita like Presidents, Governors, Foreign Sovereigns, Foreign ambassadors, Diplomatic representatives, alien enemies, foreign army, and warships.

The phrase “within India” used Section 1(3) of the BNS gives intra-territorial jurisdiction of the Sanhita which includes land, rivers, a territorial area in the high sea within 12 nautical miles from the coast of India. By this section, all the offences committed on the Indian Territory and defined by the Sanhita are punishable under the Sanhita.

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, 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.

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 appellant. 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) BNS) 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 Mayer Hans George v. the State of Maharashtra, AIR 1965 SC 722 case the accused was a German national. He was on his way from Zurich to Manila on a Swiss aircraft that 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.

Conclusion:

The Bharatiya Nyaya Sanhita, 2023 (BNS) is applicable to the whole of India. Under Section 1(3) BNS, the Sanhita is applicable to all persons including foreign nationals 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 Sanhita.

Q2. Discuss Extra-territorial Jurisdiction of the Bharatiya Nyaya Sanhita, 2023. OR Under what circumstances may an offence outside India be tried as an offence committed in India? OR Can an offence committed outside India be tried in India under Indian Criminal Law? Explain in the light of relevant case laws.

Sections 1 of the Bharatiya Nyaya Sanhita, 2023 (BNS) talks about the jurisdiction of the Sanhita. Section 1(3) BNS discusses territorial or intra-territorial jurisdiction, while Sections 1(4) BNS and 1(5) BNS discuss extra-territorial jurisdiction of the Sanhita. The Sanhita is applicable to the whole of India.

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 specifically provides that an act committed outside India may be dealt with under that law in India.

For example, an Indian citizen commits cheating in United Arab Emirates. The Bharatiya Nyaya Sanhita, 2023 makes him liable for that offence, hence he can be tried and punished in India under the BNS..

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.

Extension of Extra-Territorial Application of Sanhita:

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.

The provision of Section 1(5)(b) BNS 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 BNS.

Section 1(5)(c) BNS was inserted by the Information Technology (Amendment) Act, 2008. Section 75 of the Information Technology Act 2000 must be read along with Section 1(5)(c) BNS.

Section 75 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.

Under Sections 1(4) and 1(5) of the Bharatiya Nyaya Sanhita, 2023 and Section 208 Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, 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.

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.

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.

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(4) and 1(5) BNS and S., 208 BNSS) held that refusal by the sub-inspector was illegal.

Conclusion:

Section 1(4) and Section 1(5) of the Bharatiya Nyaya Sanhita, 2023 (BNS) confers extraterritorial jurisdiction to the Sanhita. According to Section 1(4) BNS, 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) BNS expands the ambit of application of Section 1(4) BNS.

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