Law and You > Criminal Laws > Indian Penal Code > Extent and Intra-territorial Jurisdiction of the Code
Section 1 talks about title and extent of operation of a Code. Sections 2 to 4 talk about the jurisdiction of the Code. Section 2 discusses intra-territorial jurisdiction, while Section 3 and 4 discuss extra-territorial jurisdiction of the Code. In this article, we shall study Sections 1 and 2 of the Indian Penal Code, 1860. Section 1 talks about Title and Section 2 talks about the territorial jurisdiction of the court.
Title and Extent of the Code:
S. 1: Title and extent of operation of the Code:
This Act shall be called the Indian Penal Code, and it is applicable to the whole of India except the State of Jammu and Kashmir.
The Indian Penal Code is applicable to the whole of India. Due to the abrogation of article 370 of the Constitution of India, it is also applicable to the State of Jammu and Kashmir.
Intra-territorial Application of Indian Penal Code:
S.2. Punishment of offences committed within India:
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.
Essentials of Section 2:
- An offence must be committed by any person. (Refer Section 11)
- The person should have committed some act or omission as per the provisions of this Code.
- The person will be guilty of the offences committed within India.
- The person will be liable only under this Code 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 11) 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 Code irrespective of caste, creed, nationality or rank. A foreigner is also liable for punishment under this Code 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 Code and not otherwise. This means that intra-territorial jurisdiction under this Code only applies to offences committed under the IPC 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 Code. If the act or omission is not covered under IPC, then the person is not liable under IPC.
- 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 IPC.
- The person should not be in the list exempted from liability under Section 2 of the Code 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 code i.e. the offence should have been committed in Indian territory. But S.2 is to be read with Section 3, 4, 108A, etc. which (directly or indirectly). These Sections provide the Code with its extraterritorial prosecution. By this section, all the offences committed on the Indian Territory are punishable under the Code.
The term “person” is defined in S.11. 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 Code 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.
Exemption from Criminal Liability Under IPC:
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 Jurisdiction of IPC:
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 39th 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 2 of IPC 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, 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 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 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.
Conclusion:
The Indian Penal Code is applicable to the whole of India. Under Section 2 of the Code, the Code is applicable to all persons including foreign national who have committed an offence defined in the code in the territory of India. The person will be liable only under this Code and not otherwise. President, Governors of States, Foreign ambassadors, Diplomatic representatives, Warships, Alien enemies, Foreign army are excluded from the jurisdiction of this code.
In the next article, we shall study Sections 3 and 4 of the Indian Penal Code, which deal with extra-territorial jurisdiction of the Code.