INTRA & EXTRATERRITORIAL OPERATION OF INDIAN PENAL CODE

Intra- territorial and Extraterritorial Operation of I.P.C

INTRA & EXTRATERRITORIAL OPERATION OF PENAL CODE.

A critical note on Intra-territorial and plain the Intra-territorial and Extra-territorial operation of IPC.

Table of content.
1.) Introduction.
2.) Intra-territorial operation of the Indian Penal Code.
    a) Scope of Intra-territorial operation of India.
    b) Exceptions to Intra-territorial operation of Indian Penal. 
    c) Case law.
3.) Extra-territorial operation of the Indian Penal Code.
    a) Offence committed on land.
    b) Offences committed on high seas.
    c) Offences committed of aircraft.
    d) Caselaw.
4.) Conclusion.

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1. Introduction.

The object of the Indian Penal Code is to provide a general penal code for India. The Indian Penal Code came into operation in 1860. As per S.1 of I.P.C., it extends to the whole of India, except the State of Jammu & Kashmir. The Indian Penal Code is a substantive law that prescribes the rights and liabilities of parties.

2.) Intra-territorial operation of the Indian Penal Code.

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.

 a) Scope of Intra-territorial operation of India.

Under this section, all persons are liable for the offences committed by them irrespective of their nationality, caste or creed. It makes the Code universal in its application to every person in any part of India for every act or omission contrary to the provisions of the Code. A foreigner who enters the Indian territories and thus accepts the protection of Indian laws submit himself to this operation. It is no defence on behalf of a foreigner that he did not know that he was doing wrong, and the act not being an offence in his own country. Thus, adultery is an offence in India under this Code, whereas it is not an offence in France or Germany. So if a Frenchman or German commits adultery in India he will be punished under this Code. Ignorance of Indian law is also no excuse or defence.

If the offences are committed on the high seas, then a stretch of water within 12 miles from the land falls within the territorial jurisdiction of land, so if the offence is committed within the belt of 12 miles in the sea near Bombay will be cognizable and tried by Bombay court.

Thus, if an offence is committed on the high seas but within 12 miles from the coast of India, then it is punishable under this Code as if committed within the territorial limits of India. This is called the maritime territory of the State, which is based on the Territorial Water Jurisdiction Act, under International Law.

b) Exceptions to Intra-territorial operation of Indian Penal. 

The general rule is that every person is liable to be punished for an offence under this Code committed in India. However, criminal courts have no jurisdiction to try certain persons even though they have committed an offence under this Code. They are as follows:- 

i) The President and Governors:

The President and Governors of the States under Art.361 of the Indian Constitution have exempted from civil and criminal liabilities, for the exercise and performance of powers and duties in their official capacities. They are exempted from the jurisdiction of the Court.

ii) Ambassadors and High Commissioners:

They are representative of independent sovereign states. They are also exempted from criminal liability. They enjoy immunity which his sovereign is entitled to. The principle on which the immunity of Diplomatic Personal is based is that he should be free to perform official business on behalf of his country without interference or interruption. The immunity of an Ambassador and High Commissioners from the jurisdiction of the Courts of the country to which they are accredited is based upon his being a representative of the independent Sovereign or State which sends him.

iii) Foreign Sovereign: 

They cannot be punished under the Code according to rules of International Law. No Court can entertain an action against the foreign sovereign for anything done, or omitted to be done by him in a public capacity as a representative of a nation of which he is head.

iv) Alien Enemies: 

If the war is declared between two or more States, they are the alien enemies of each other. If the act is connected with war, alien enemies cannot be tried by the criminal courts and not be dealt with by martial law. However, if the alien enemy commits a crime not connected with war, he can be tried by the ordinary criminal courts of the State. E.g. theft.

V) Foreign Army: 

When they are engaged with their military duties and if the members of such an army commit an offence within or outside the area in which the force is stationed they are not liable to be punished under the Penal Code. However, if they are engaged in non-military duties and commit a crime, they are liable to be punished under the Code.

vi) Warship: 

The warship engaged with military duties, and such ship in the foreign water, the men of war are exempted from the jurisdiction of the State within whose territorial Jurisdiction they are.

C) Caselaw:

1. Crown v/s Esop, 1886,

In one leading case, Crown v/s Esop, 1886, the accused has committed an unnatural offence on the board of East India Company's Ship. The contention or argument of the accused was that he was a native of Baghdad where an unnatural act is not an offence, but the Court held him guilty and punished him.

2. Mubarak Ali v/s State of Bombay, AIR 1957, SC 857 

In Mubarak Ali v/s State of Bombay, AIR 1957, SC 857 a court has convicted the Pakistani. National for the offence of forgery committed in India under this Code. Thus S.2 is applicable to every person whether foreigner or not, who commits an offence in India. Offences committed on land by any person are punishable under this Code.

3.) Extra-territorial operation of the Indian Penal Code.

S.2 imposed liability upon the person committing an offence within the territory of India and are liable to be punished under this code. However, there are certain types of persons who are liable to be tried by Indian Courts although they have committed offences outside India. S.3 and S.4 lays down that an offence committed outside India may be tried as an offence committed in India when an offence is 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.

Illustration

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, which would be punishable under the Indian Penal Code.

S.4 lays down the scope and extent to which the Indian Penal Code applies to the offence committed outside India. S.4 provide an extension of the Code to extra-territorial offences. If the offence is committed outside India but the offender is found within India - then.

• He may be surrendered for the trial in the country where the offence is committed. This process of giving up the offender to the country is called extradition under International Law. However. there must be an extradition treaty between the requested and requesting State. The principle underlying the extradition is that the criminal shall not go unpunished, or,
• He may be tried in India, which is known as extra-territorial Jurisdiction. Indian Courts are empowered to try offences committed outside India-

1. On land
2. On the high seas, and
3. On aircraft.

A. Offences committed on Land.

Indian Courts can take cognizance of offences committed outside the limits of India. The provision is given in the Criminal Procedure Code, which lays down that if the offence is committed by-

i) Any citizen of India, in any place beyond India, or

ii) Any person on any ship or aircraft registered in India, whenever such ship or aircraft may be. Then such a person may be dealt with in respect of an offence as if the offence had been committed at any place in India at which such a person may be found.

B) Offences committed on high seas.

The jurisdiction to try offences committed on high seas is known as Admiralty Jurisdiction. It is based on the Principle that a ship on the high seas is a 'floating island' belonging to the nation whose flag it is flying.

C) Offences committed of aircraft.

The provisions of the Indian Penal Code also apply to any offence committed by any aircraft registered in India wherever it may be.

D) Caselaw.

i) Veer Savarkar Case, 1910.

Veer Savarkar was a great Indian Patriot; he was accused of the offence of high-treason against British Gove. When he was being brought from London to Bombay by ship, on the way, he escaped a France port. France Govt gave the custody of Veer Savarkar to British Govt., Savarkar was thus re-arrested and he was tried by Special Magistrate at Nashik.

ii) Jugal Kishor More 1969

Jugal Kishor More 1969. Supreme Court held that S.4 of IPC defines the extraterritorial application of the Indian Penal Code. The procedure for securing surrender is governed by the Extradition Act, of 1962.

4.) Conclusion.

As per S.2 of the Indian Penal Code, every person including a foreigner is liable for the act which is an offence under I.P.C. committed within India. S.2 focus on the operation of Code within India. But it is to be read with sections 3 and 4 which provides for its extra-territorial operation, S.3 of L.P.C. applies only to a person liable by any Indian law to be tried for an offence committed beyond India. If the Indian law does not have an extra-territorial operation then S.3 does not apply. S.4 does not apply where the offender is not a citizen of India.

SUGGESTED READINGS -

Ratanlal and Dhirajlal.                           Indian Penal Code

K.D. Gaur.                                                 A textbook on The Indian Penal Code

PS. A. Pillai.                                              Criminal law

Mishra S. N,                                              The Indian Penal Code

T. Bhattacharya                                        The Indian Penal Code

IMPORTANT CASE LAWS:

1. Mubarak Ali Ahmed vs. State of Bombay, AIR 1957 SC 857
2. State of Maharashtra v. Syndicate Transport Co.(P) Ltd., AIR 1964 Bom 195
3. United Nations Privileges and Immunities Act, 1947
4. Walker, Oxford Companion to law(1980) 600
5. United Nations Privileges and Immunities Act, 1947
6. United Nations Privileges and Immunities Act, 1947
7. Ins. By Criminal Law (Amendment) Act, 2013
8. Abdul Kadir vs. State of Assam, 1985 SCC 603
9. Darshan Singh vs. State of Punjab(2010) 2 SCC 3

Bibliography

Code of Criminal Procedure, B.B.Mitra, 21st edition, Kamal Law House Kolkata, Vol 1
Indian Penal Code, B.M. Gandhi's Fourth Edition
R.V. Kelkar's Criminal Procedure
Ratanlal & Dhirajlal, Commentary on The Code of Criminal Procedure, 18th enlarged Ed, Vol.1
Ratanlal & Dhirajlal, Law of Crimes, Enlarged Edition
Takwani, Criminal Procedure, 3rd Ed. Lexis Nexis
The Code of Criminal Procedure, by Batuklal
The Code of Criminal Procedure, S.N.Misra, Central law Publication.