Law and You > Criminal Laws > Indian Penal Code > Extra-territorial Jurisdiction of the Code (Ss. 3 and 4)
In the last article, we have discussed intra-territorial jurisdiction. In this article, we shall study the extra-territorial jurisdiction of the Code. Sections 3 and 4 deals with the Extra territorial jurisdiction of the Code
Offence Committed Beyond India
S3. 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;
Essentials of Section 3 of IPC:
- 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.
- 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 Code. 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.4 of IPC in that Act. Thus Section 3 of the Indian Penal Code 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 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) 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.
Extra Territorial Offence
Section 4: Extension of Code to extra-territorial offences:
The provisions of this Code apply also to any offence committed by
(1) any citizen of India in any place without and beyond India;
(2) any person on any ship or aircraft registered in India wherever it may be
(3) any person in any place without and beyond India committing offence targeting a computer resource located in India
Explanation:
“offence” includes every act committed outside India which, if committed in India, would be punishable under this Code;
(b) the expression “computer resource” shall have the meaning assigned to it in clause (k) of sub-section (1) of section 2 of the Information Technology Act, 2000.
Illustration:
e.g. A, who is a citizen of India, commits a murder in Uganda. He can be tried and convicted of murder in any place in India at which he may be found.
Section 4(1):
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 (4) Subsection (1) 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
- he may be given up for trial in the country where the offence was committed (extradition), or
- he may be tried in India (extraterritorial jurisdiction).
Provision of Section 4 clause 1 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 (4) Subsection (1) 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 4(2):
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. Sub-section (2) of section 4 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 Sub-section (2) of Section 4 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 Indian Penal Code.
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 4(3):
This section was inserted by the Information Technology (Amendment) Act, 2008. Section 75 of the Information Technology Act 2000 must be read along with Section 4(3) of the IPC. 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 4 Clause 3 of IPC, 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, (1994) 1 KLT 464 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 188 in the Code Of Criminal Procedure, 1973
Under the Sections 3 and 4 of the Indian Penal Code and Section 188 of the Criminal Procedure Code, 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 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, 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. 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 the case of 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.
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.
Conclusion:
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. Section 3 and Section 4 of Indian Penal Code confers extraterritorial jurisdiction to the Code. According to Section 3 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 Code 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 4 of the Indian Penal Code expands the ambit of application of Section 3 of the Act. According to Section 4 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.
In the Next article, we shall study Section 5 of IPC which deals with certain laws which are not getting affected by IPC.