Section 2 of Indian penal code deals with the Intra-Territorial jurisdiction, i.e., offences are committed in India and punished under the code of this act. It refers to offences which are committed within India and also declares that every person shall be liable to punishment under this code of which he shall be guilty within the territory of India.
The term ‘Indian territory’ has been defined to include land, water (also known as low water territory) which includes inland water including river, cannas, etc., and portion of sea. It extends into the sea as far as 12 miles which means the jurisdiction on waters is up to a distance of 12 nautical miles measured from the appropriate baseline. This is known as a Maritime territory of a state.
In the case of FKastya Rama vs State of Maharashtra
Facts- Few fishers of village A, lawfully fixed their fishing stakes in the sea within 3 miles from the shores. the fishers of village B got annoyed by their act and they removed all fishing stakes. On prosecution the accused pleaded that there act will not come within the purview of the Indian Penal Code.
Judgement- The Bombay High court held that the act of fishers of village B was within the purview of the Indian penal code, and particularly the offence would be amounted as ‘mischief’ as per the code, and the place of offence was covered within the Indian territory as it was within three miles from the shore.
High Seas is “ res communis” as it is physically impossible to take position of it. High Seas are open to all and represents the entire sea-space beyond the three miles limit of the shore. The expression ‘high seas’ includes all oceans, seas, bays, channels, rivers, creeks and waters below low water mark, where great ships could go. The territory of state also includes its ships, aircraft weather armed or unarmed, and the private ships of its objects on the high seas or in foreign tidal waters, and foreign private shapes while within its ports.
Section 2 of IPC mentions ‘every person’ which includes citizen, non citizen, and even foreigners visiting India. They all are liable to punishment irrespective of their nation, caste, rank, or sex, provided that the offence has been committed within the territory of India.
A foreigner who enters the Indian territories and accepts the protection of Indian laws, gives an assurance of his fidelity and obedience to them and submit himself to their operation. A foreign national who is committing crime in India can be punished no matter the alleged offence is an offence in his motherland or not.
In case of Mubarak Ali vs state of Bombay (AIR 1957 SC 857)
A national of Pakistan made certain false representations from Karachi by letters, telegrams, and telephones to the complainant at Bombay on the belief of which the complainant paid a certain amount of money to the agent of the Pakistani at Bombay. The accused was sent with money amounting over rupees five lakh from the complainant, so that rice could be shipped from Karachi to India as per agreement. But the rice was never supplied. The accused was arrested, while he was in England and brought to India through extradition process.
The supreme court held that the Pakistani national was subject to the jurisdiction of the Indian courts for having committed the offence of cheating and as the appellant had already surrendered to the authorities of India of India under the provisions of Fugitive Offenders Act, 1881 in connection with another case his conviction was valid under section 420 Indian Penal Code.
State of Maharashtra vs Mayer Hans George (AIR 1965 SC 722)
In this case, a foreigner had committed an unnatural offence on an Indian ship lying in Saint Katherine’s docks. His defense that he was a foreigner and that in his country such an act was not an offence was rejected on the ground that the act was an offence under the Indian Penal Code and that it was committed on an Indian ship which was Indian territory. A foreigner who is guilty of any offence under this code, shall be punishable under this code if he has committed any offence in India, although the alleged offence might have not been an offence in his motherland.
The corporations cannot be indicated or charged for offences such as murder, dacoit, robbery, adultery, bigamy, rape etc. as all these can only be committed by human being. But a company is liable for criminal acts or omissions of its agents or servants for directors and for the contempt of court on the principles of vicarious liability.
The expression ‘within India’ in section 2 of the IPC points out towards the intra territorial jurisdiction of the Indian Penal Code. This includes the whole and territory of India, the maritime belt of India which presently extends upto 12 nautical miles in the sea, the whole air space over and the area underneath this total area. The maritime belt which is also known as territorial waters is measured from the appropriate baseline.
EXCEPTIONS TO THE INTRA-TERRITORIAL JURISDICTION
Though section 2 of Indian penal code mentions ‘every person’ within India, still there are certain persons exempted from the jurisdiction of criminal courts. These persons are given certain rights, privileges, etc. Same is the position in other countries as well such persons are:
- Foreign sovereigns- A supreme ruler on monarch cannot be punished under the code, he is completely exempted as he is the
highest authority of his nation. He is completely independent and dignity of his country lies on his shoulder.
- The President or Governor – The President of India and governors of the states are exempted from jurisdiction of the criminal courts of India by article 361 of the Indian Constitution.
- Ambassadors– According to the rules of International Law, an ambassador cannot be punished under its code. They are also exempted from the jurisdiction of the criminal courts of India.
- Alien Enemies– Any military persons of alien enemies do not come under the jurisdiction of ordinary criminal courts, in respect of their acts of war. However, if they commit theft, robbery, rape, etc., Unconnected with the war, they shall be tried by the Indian criminal courts.
- Foreign Army– The foreign army personnel entered into the Indian territories with the permission of the Indian Government is exempted from the jurisdiction of the criminal courts.
- Warships– Any ship entered into the Indian Sea waters cannot be tried under the ordinary Indian Criminal Courts. The public International Law applies to such men-of-war.
Important case laws:
In Schooner Exchange vs McFaddon (1812) Cranch 116
Mcfadden (plaintiff) and another plaintiff have brought suit against the schooner exchange (defendant), a ship, claiming they had rightful ownership of the ship and that it had been wrongfully seized from them by an individual acting on behalf of France. No one represented the schooner exchange, but the United States Government intervened and claimed that United States was at peace with France, that the ship had become the public property of France, that bad weather had forced t ship into the Philadelphia, Pennsylvania harbor, and that it had been forced to remain there.
By the process of the court, US government stated that even if the ship had first been wrongfully seized from the plaintiffs title to it had since passed lawfully to France. The district court dismissed the case, but the court of appeals reversed the United States government appealed to the United States supreme court.
Chief Justice Marshall observed that one sovereign being bound by the applications of the highest character not to degrade the dignity of his nation, by place in himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only and then express licence or in confidence that the immunities belonging to his independent sovereign nation, though not expressly stipulated, are reserved by implication and will be extended to him.
Extra territorial jurisdiction
Section 3 and 4 of the Indian penal Code confers the extra territorial jurisdiction to the court. Crime is said to be extra territorial when it is trialled in a country other than the one in which it was committed. For example a person who is a citizen of India, commits a murder in USA. He shall be tried and convicted of murder in any place in India.
Section 3 gives criminal jurisdiction to the court to try for an offence where any person who has committed an offence beyond the territorial limits of the India, provided that such person is subject to Indian laws. In such case, the person will be held for a offence in the same manner as if such act has been committed within India. You cannot take the defence that such act it is not an offence under the ordinary laws of that country where he has committed an offence. The scope of section 3 is wide enough as it not only makes Indian citizens liable for an offence committed abroad, but also those who are covered by any special law bringing them under Indian jurisdiction.
Extradition means the surrender of fugitive offender by one state to another, who is liable to be punished. Such surrender of a person, whether citizen or an alien is a political act done in pursuance of treaty ad hoc arrangement between the two States. Extradition is based on the principle that crime should not go unpunished, therefore it becomes a moral and the legal duty of the state to offer assistance to one another in punishing person guilty of crimes. The procedure for securing the extradition of a person from India can be found in extradition act 1962.
Leading Case Laws
In case of Abu Salim, an erstwhile number of Mumbai’s organised crime Syndicate D-Company, was convicted in over 50 heinous crimes including involvement in 1993 Mumbai bomb blast was extradited along with the partner Monica Bedi
In the case of Remia v. Sub-inspector of Police, Tanur, 1993 CrLJ 1998 (Ker):
In this case, an Indian citizen murdered another Indian citizen in a foreign country. The police refused to register an FIR on the ground that, the offence was committed outside India. The court held the refusal was illegal and directed to register the crime and proceed for investigation in accordance with the law under Section 3 of the Indian Penal Code.
Section 4 of the IPC expands the Ambit of application of section 3 of the act. It lays down that an offence committed outside India may be tried as an offence committed in India in the following three causes, namely when an offence is 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 an offence targeting a computer resource located in India.
Crimes committed without and beyond India
The rational behind extending criminal jurisdiction of Indian courts in the cases of offence committed outside and beyond India, is based on the contention that every Sovereign state can regulate the conduct of its citizen wherever they might be for the time being. For example- A, an Indian (Hindu male) citizen, who has a wife and three children living in India, goes to USA for higher studies and marries and American girl. According to the provision of this code, upon returning he will be prosecuted under section 494 of IPC causing bigamy.
However there is an exception to this provision stated in Fatima Bibi Ahmed Patel vs State of Gujarat (2008), if at the time of the commission of the offence the accused person is not a citizen of India, then the provision of Section 4, IPC and section it 188 of CrPc have no application whatsoever. Similarly, if an Indian citizen after relinquishing his citizenship, acquires another country’s citizenship, he is not subject to the jurisdiction of Indian courts.
Therefore the test for the determining the applicability of section 4A is citizenship at the time of the commission of the offence and not citizenship acquired subsequently
Section 4 sub clause (2) of the penal Code gives admiralty jurisdiction to the Indian courts and the power to try offences committed outside India:
- Offences committed on Indian ships on the high seas, as well as on foreign ships in Indian Territorial waters.
- Offences committed on aircraft.
A ship is considered to be a floating Island and belongs to the country whose flag the ship is flying, and likewise also aircrafts. Does all vessels ships or aircraft are considered to be a part of the territory of the country whose flag they fly. A person committing a crime on board whether an Indian citizen, or the foreigner is amenable to the Indian courts, provided that the vessel is flying at Indian flag and is registered in India.
Cases Laws related to Admiralty Jurisdiction
In 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. The ship was arrested and an FIR was registered by the Kerala Police. Later the two Italian marines were also arrested. 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. The writ was quashed as it was held that section 2 of the IPC gave Kerala Police jurisdiction over this incident. Subsequently, Supreme Court held that the Union of India was entitled to prosecute the accused but the same 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, the Supreme Court directed the Central Government to set up a Special Court to try this case.
Commission of an offence targeting a computer resource located in India
By the insertion of sub section (3) in section 4 of IPC by the information technology amendment Act (2008), the territorial operation of court is extended to any offence committed by any person in any place without and beyond India targeting a computer resource located in India.