Law and You > Criminal Laws > Indian Penal Code >Concept Application 1.4 (Ss. 1 to 5)
These are the FAQs asked on offence committed beyond India under the Indian Penal Code. These are 5/6 Marks questions and answer is expected in about 300 to 350 words.
Write Short Notes on the Following (5/6 Marks)
Territorial Jurisdiction:
Section 2 discusses territorial or intra-territorial jurisdiction. Under the IPC, intra-territorial jurisdictions deal with crimes and offences committed by anyone within the territory of India. The phrase “within India” used Section 2 of the IPC gives intra-territorial jurisdiction of the Code which includes land, rivers, a territorial area in the high sea within 12 nautical miles from the coast of India.
According to Section 2 of IPC “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 for Section
- An offence must be committed by any person.
- 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
Under Section 2 of the Code, persons like the President, Governors of States, foreign sovereigns, foreign ambassadors, diplomatic representatives, alien enemies, foreign army, and warships are exempted from the purview of the Code.
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 because the place of the offence was within three miles from the shores and was 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.
Extra-Territorial Jurisdiction or Punishment for Crimes Committed Beyond India:
Sections 3 and 4 of the Indian Penal Code deals with the extra-territorial operation of the Code.
Section 3 of the Code:
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 Code:
Extension of Code to extra-territorial offences:
The provisions of this Code apply also to any offence committed by
- any citizen of India in any place without and beyond India;
- 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
Extradition:
Due to increased and faster modes of transport and technology, it is quite possible for a person to escape to another State after committing a crime on his own. Normally the criminals think that a person cannot be punished in a state where he escapes after committing the crime due to lack of jurisdiction or due to some technical rules of criminal law but it is not true as criminals are extradited so that their crimes may not go unpunished.
Extradition is the legal process by which a person is transferred from one country to another without the person’s consent. Here, a governmental authority formally and legally turns over an alleged criminal to another government for the person to face prosecution for a crime. It is a judicial process, unlike deportation. The process of extradition is regulated by treaties. In Extradition, there are two States involved, the territorial State for example – State, where an accused or convicted, is found and to whom the request is made. And another state is requesting State, for example, a state where the crime has been committed. The request is made normally through the diplomatic channel.
In India, the extradition of a fugitive criminal is governed under the Indian Extradition Act, 1962. This is for both extraditing of persons to India and from India to foreign countries. The basis of the extradition could be a treaty between India and another country. Currently, India has extradition treaties with 39 countries.
Vijaya Mallaya Case:
Vijaya Vittal Mallaya is an Indian businessman and politician who is the subject of Extradition. Indian Government trying to force his return from the United Kingdom to India to face the charges of financial crimes. As a treaty was signed between U.K and India in 1992 so India has made several extradition requests to the United Kingdom.
Admiralty Jurisdiction:
Admiralty Jurisdiction is the jurisdiction that 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 arrested two Italian Marines and charged them for the offence of murder. A writ was filed by the Italian Government in the Kerala High Court challenging the jurisdiction of the Indian Court. 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. 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, the Court 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 the incident and it is the Union of India that has jurisdiction to proceed with the investigation. Hence, Supreme Court directed the Central Government to set up.
Certain laws not to be affected by this Act” Or Provisions of Section 5 of IPC:
According to Section 5 of the Indian Penal Code, “Nothing in this Act 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 provision of any special or local law”.
Officers engaged in 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 Indian Penal Code may not be right. This section excludes the jurisdiction of the Indian Penal Code 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. Provisions of 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.
Section 41 of the Code 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 Indian Penal Code, it will be punished under the Code. On the other hand, it has also been held that if a special Act, complete in itself, makes certain acts punishable, the jurisdiction under the Code is not permissible. Example: Provisions of e.g. MCOCA, POCSO, POTA, etc. override provisions of the IPC.
Kastya Rama v. State Case:
Section 2 discusses territorial or intra-territorial jurisdiction. Under the IPC, intra-territorial jurisdictions deal with crimes and offences committed by anyone within the territory of India. The phrase “within India” used Section 2 of the IPC gives intra-territorial jurisdiction of the Code which includes land, rivers, a territorial area in the high sea within 12 miles from the coast of India.
According to Section 2 of IPC “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”.
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 because the place of the offence was within three miles from the shores and was covered within the territory of India.
Mobarak Ali v. State of Bambay Case:
Section 2 discusses territorial or intra-territorial jurisdiction. Under the IPC, intra-territorial jurisdictions deal with crimes and offences committed by anyone within the territory of India. The phrase “within India” used Section 2 of the IPC gives intra-territorial jurisdiction of the Code which includes land, rivers, a territorial area in the high sea within 12 miles from the coast of India.
According to Section 2 of IPC “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 phrase ‘Any Person’ includes foreigners also. Thus the code is applicable to foreigners also, who are committing crimes within India.
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 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.
Dr Ambati Dowry Case:
Section 2 discusses territorial or intra-territorial jurisdiction. Under the IPC, intra-territorial jurisdictions deal with crimes and offences committed by anyone within the territory of India. The phrase “within India” used Section 2 of the IPC gives intra-territorial jurisdiction of the Code which includes land, rivers, a territorial area in the high sea within 12 miles from the coast of India.
According to Section 2 of IPC “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 phrase ‘Any Person’ includes foreigners also. Thus the code is applicable to foreigners also, who are committing crimes within India.
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.
Rajan Pillai Case:
Extradition is the legal process by which a person is transferred from one country to another without the person’s consent. Here, a governmental authority formally and legally turns over an alleged criminal to another government for the person to face prosecution for a crime. It is a judicial process, unlike deportation. The process of extradition is regulated by treaties. In Extradition, there are two States involved, the territorial State for example – State, where an accused or convicted, is found and to whom the request is made. And another state is requesting State, for example, a state where the crime has been committed. The request is made normally through the diplomatic channel.
In India, the extradition of a fugitive criminal is governed under the Indian Extradition Act, 1962. This is for both extraditing of persons to India and from India to foreign countries. The basis of the extradition could be a treaty between India and another country. Currently, India has extradition treaties with 39 countries.
Rajan Pillai, a businessman popularly known as “Biscuit King”, was involved in a scam A non-bailable warrant was against him by the Indian Court. He was absconding. Later it was known that he had settled in Singapore. The Government of India under the Extradition Treaty asked the Government of Singapore to arrest Mr Pillai and handed over him to the Government of India. He was arrested by the Government of Singapore and extradited to India. Consequently, a trial was conducted against him in India. During the custody in Tihar Jail, he died. His wife Nina Rajan Pillai filed a writ petition in the Supreme Court for CBI enquiry of the death of Rajan Pillai in the custody. His death created a sensation throughout the country.
Dawood Ibrahim Case:
Extradition is the legal process by which a person is transferred from one country to another without the person’s consent. Here, a governmental authority formally and legally turns over an alleged criminal to another government for the person to face prosecution for a crime. It is a judicial process, unlike deportation. The process of extradition is regulated by treaties. In Extradition, there are two States involved, the territorial State for example – State, where an accused or convicted, is found and to whom the request is made. And another state is requesting State, for example, a state where the crime has been committed. The request is made normally through the diplomatic channel.
In India, the extradition of a fugitive criminal is governed under the Indian Extradition Act, 1962. This is for both extraditing of persons to India and from India to foreign countries. The basis of the extradition could be a treaty between India and another country. Currently, India has extradition treaties with 39 countries.
Dawood Ibrahim Kaskar is the leader of the Indian organized crime syndicate commonly known as D-Company founded in Mumbai. He is currently on the wanted list of Interpol for cheating, Criminal Conspiracy, and Organized Crime Syndicate. He is one of the dreaded criminals in the world. He is also wanted in Mumbai Bomb blasts and sport fixing crime. He is now in Pakistan but Pakistan intentionally denied his whereabouts in Pakistan. Dawood Ibrahim is a citizen of India. He has committed offences in India but now he is outside the territories of India. He is liable under Sections 2, 3 and 4 of IPC. Indian Courts have issued warrant on Dawood Ibrahim.
Italian Ship Case or Enrica Lexie Case:
Section 2 discusses territorial or intra-territorial jurisdiction. Under the IPC, intra-territorial jurisdictions deal with crimes and offences committed by anyone within the territory of India. The phrase “within India” used Section 2 of the IPC gives intra-territorial jurisdiction of the Code which includes land, rivers, a territorial area in the high sea within 12 miles from the coast of India. In addition to this India has Exclusive Economic Zone (EEZ) extended in the high sea up to 200 nautical miles from the coast of India.
According to Section 2 of IPC “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 phrase ‘Any Person’ includes foreigners also. Thus the code is applicable to foreigners also, who are committing crimes within India.
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 arrested two Italian Marines and charged them for the offence of murder. A writ was filed by the Italian Government in the Kerala High Court challenging the jurisdiction of the Indian Court. 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. 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, the Court 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 the incident and it is the Union of India that has jurisdiction to proceed with the investigation. Hence, Supreme Court directed the Central Government to set up.
The Bofors Scam:
Section 2 discusses territorial or intra-territorial jurisdiction. Under the IPC, intra-territorial jurisdictions deal with crimes and offences committed by anyone within the territory of India. The phrase “within India” used Section 2 of the IPC gives intra-territorial jurisdiction of the Code which includes land, rivers, a territorial area in the high sea within 12 miles from the coast of India.
According to Section 2 of IPC “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 phrase ‘Any Person’ includes foreigners also. Thus the code is applicable to foreigners also, who are committing crimes within India.
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