jurisdiction
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This article is written by Shivangi Tiwari, a second-year student pursuing B.A. LL.B. from Hidayatullah National Law University, Raipur. This is an exhaustive article dealing with jurisdiction under IPC.

Introduction

The word jurisdiction is derived from two Latin words, “Juris” and “dicere”. ‘Juris’ means law and ‘dicere’ mean to speak. 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. The term legal body includes within its ambit a court, political or government office or a law enforcement agency. Jurisdiction with respect to a judicial authority is the limit or the extent of judicial authority it has over dealing with the cases, appeals and other legal proceedings. The reason behind the introduction of the concept of jurisdiction is to ensure that the courts adjudicate and try only those matters which fall within the territorial and pecuniary limits of the court. In a court system there are three types of jurisdiction, which are as follows:

  • The subject matter of the jurisdiction: It refers to the authority possessed by the court to try the cases related to the particular subject matter. For example, a family court only has jurisdiction to hear the cases related to family law.
  • Territorial jurisdiction: It ascertains the court’s authority to try the cases which arise within a certain geographical limit and which involves the people residing in a particular geographical limit.
  • In personam jurisdiction: It refers to the jurisdiction which a court has over a natural and legal body such as a company. It is the authority which a court has to determine the rights and liabilities of the parties. 

The official criminal code of India is Indian Penal Code, 1860 and it deals with the substantive facet of criminal law. It was drafted in the year 1860 and came into effect in 1862. The Indian Penal Code deals with intra-territorial jurisdiction while Section 3 and 4 of the court deals with the extra-territorial jurisdiction of the Code.

Intra-territorial Jurisdiction & Extra-territorial Jurisdiction 

Section 2 of the Indian Penal Code deals with the intra territorial jurisdiction of the Code. It makes the code universally applicable on all the persons on every act or omission contrary to the provisions of the Act. Section 3 and Section 4 confer extraterritorial jurisdiction to the Code. According to which a person can be held liable for any act committed beyond the territory of India.

Intra-territorial Jurisdiction

Section 2 of the Indian Penal Code states that every person who commits an act or omits to do an act which is contrary to the provisions of the code shall be liable for punishment. Here, every wrongdoer is made liable for punishment without any discrimination on the basis of his nationality, rank, caste or creed. The only requirement under this Section to incriminate a person is that he should commit the act or omission within the territory of India. Thus a foreigner who committed a wrong within the territory of the country cannot plead ignorance of Indian law. However, there are exceptions to the universal application of the code and so specific class of people are immune from criminal liability, the class of people include:

  • Foreign sovereign;
  • Diplomats;
  • Enemy aliens;
  • foreign army and warships;
  • President and governors.

Scope of Section 2: Personal Jurisdiction

Section 2 of the code states that the provisions of the code are applicable to ‘every person’ who commits an act or omits to do an act within the territory of India which is in contravention to the provisions of the Act. The people who are covered under the ambit of the Code are as follows:

  1. Foreign nationals: Foreign nationals who enter into the territory of India and thus accepts the protection of the Indian laws impliedly consent to the imposition of India laws and are obliged to respect the same. Also, a person who is for the time being present in India and instigates the commission of an offence outside the territory of India is also liable under the Act. it is also settled by the Indian courts that a person who initiates an offence outside the territory of India and which takes place within the territory of India will be liable for punishment prescribed under the Act.

In the case of Mobarik Ali v. The State of Bombay, a person who was a Pakistani national induced a person residing in Bombay through telegram, telephone conversations, letters and to send him money. When the case came in front of the court, the Pakistani national pleaded that he can not be made liable for the offence of cheating since he was not physically present within the territory of India. The court rejected the contention and held that the basis of jurisdiction under Section 2 of the Act is not the corporeal presence of the offender but the locality where the offence is committed and since the offender committed the offence in Bombay it is immaterial that at the time of commission of offence he was not present within the territory of India. Similarly, In the case of State of Maharashtra v. Mayer Hans George, the court held the foreigner liable under Foreign Exchange Regulation Act, 1973 where he without making an express declaration about the gold which he was carrying during his journey through the aeroplane and as soon as the plane landed the Indian territory, he was held liable. 

Corporations: Section 11 of the Indian Penal Code defines the term “person” according to the Section “person” includes all the natural and legal person which include company, association or body of persons which has a legal existence. A company can be held liable under the law even if it is unincorporated. A company can not commit a crime by itself but it can do so through its agent. The company can be punished by imposition of fine while its employers can be held liable for criminal conspiracy. In the case of State of Maharashtra v. Syndicate Transport Company, the court held that in cases of criminal act or omission by the director, authorized agent or servants of a particular company the presence of mens rea is immaterial and the company can be held liable for the act or omission which is in contravention to the Code. In case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Corporation of Calcutta, the court held that even the state can be held liable for the wrongful acts or omission of its agent.

Exemption from Coverage of the Indian Penal Code, 1860 

According to the provisions of Section 2 of the Indian Penal Code, every person who commits an act or omits to do an act which is contrary to the provisions of the code shall be liable to punishment. Every wrongdoer shall be subjected to punishment without any discrimination on the basis of his nationality, rank, caste or creed. However, there are certain exceptions to this universal application of the code in India and certain people are immune from criminal liability under the Code, the people who are exempted from the liability are as follows include:

Foreign sovereign: A foreign sovereign of any country possesses the ultimate or supreme authority of the country and is exempted from incrimination under the Code.

Ambassadors and Diplomats: Ambassador is an accredited permanent representative which one country sends to another country while a diplomat is a person who represents the country in another country. The ambassadors and Diplomats are exempted from liability under the Code, the reason for such exemption is that a foreign sovereign sends ambassadors and diplomats to as a representative of his country in good faith and so they are the representatives of the independent sovereign of that country, therefore, they should enjoy the same immunity which is provided to the sovereign of the country which he represents. The exemption given to them is on lines with the international laws like the United Nations Privileges and Immunities Act of 1947 which is a part of national laws. 

Alien Enemy: When an alien enemy invades the country irrespective of the fact whether the country to which they belong to is at war or peace with our country, he will not be subjected to the criminal laws of the country but will be dealt with by the martial laws of the country. If any alien enemy commits any crime which is in no way connected with war then, he shall be subjected to the criminal laws.

Foreign army: When the foreign armies are on the soil of another country with the permission of their own country. They are exempted from criminal liabilities of the state on the soil of which they stand.

Warships: Warships which enter the water which comes under the territorial jurisdiction of another country, they are not subjected to the penal laws of that country.

President and governors: The provisions of Article 361 under Part 19of the Constitution constitutes an exception to Article 14 and Section 2 of Indian Penal Code. It states that:

  1. That the governor and the president can not be made answerable to any court of law in the exercise of their duties during the term of office,
  2. During the term of office of governor and president, the criminal proceeding can not be inducted against them,
  3. During the term of office, the president and the governor can not be arrested or imprisoned,
  4. If the president or the governor does any act in his personal liability, during the term of their office no civil proceedings can be instituted against them.

Section 5: An Exception to Section 2 

Section 5 is a saving clause and provides for limiting the jurisdiction of the Indian Penal Code, 1860 by excluding the application of the Code over the matter for which specific laws are already present. It limits the applicability of the law on the specific class of people for whom different laws are already present in the country. Section 5 states that nothing contained in the Act shall be made applicable which interferes with any of the special and local laws and also any existing laws on the matters of

  • Punishment, mutiny or desertion of any officer, sailor, soldier or airmen who work for the Government of India.
  • Section 5 is an exception to Section 2, Section 2 makes the Code universal in the application within the territory of India on every person irrespective of his nationality, rank, caste or creed while Section 5 limits the operation of the Code.

Scope of Section 5 

  1. Section 5 is applicable to the officers, soldiers, sailors, airmen who render their services to the Government of India and have been made liable for desertion or mutiny against the Government of India.
  2. Such above-mentioned people are to be punished in accordance with the Acts, provisions of any special or local laws and such wrongs demand to be tackled separately.
  3. The Section limits the application of the Code on the Acts, provisions with respect to the prescription of punishment for desertion or mutiny against the Government of India by officers, soldiers, sailors, airmen who render their services to the Government of India. The main Acts in this connection are the Army Act, 1950, Air Force Act, 1950, Navy Act 1957, Air Force and Army Law (Amendment) Act, 1975.

Extra-territorial Jurisdiction 

Section 3 and Section 4 of Indian Penal Code confers extraterritorial jurisdiction to the Code. Crime is said to be extraterritorial when it is tried in a country other than the one in which he committed it. 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:

  • Extradition: He can be sent to the country where the effect of his wrongdoing took place,
  • Extraterritorial jurisdiction: he may be tried in accordance with the criminal laws of India.

Scope of Sections 3 and 4, Indian Penal Code 1860 

According to Section 4, the jurisdiction of the Code is applicable to any person beyond the territory of India who commits a crime. The Section also covers the following category of people:

  1. Any Indian citizen who is present beyond the territory of India and has committed a wrong,
  2. Any person travelling through any ship or aircraft which is registered in India,
  3. Any person present in any place which is not under the territorial limit of India and targets the computer resources present in India.

About Liability of a Foreigner for Offences Committed in India 

A foreigner committing an offence in India will be subjected to the provisions of Indian laws and shall be punished in accordance with the provisions of the Act even though he may not be physically present in India at the time of the commission of the offence. The court in the case of Nazar Mohammad v. State held that foreign citizen committing an offence in India will be held guilty under the Indian laws and ignorance of Indian laws is not an excuse although ignorance may be pleaded at the time of mitigation of the sentence. The prerequisite for the application of Section 3 and Section 4 is not the physical presence of the offender and the only requirement is that the wrong should take place in. The Section only means that the offence must take place in India although the offender is outside. 

In the case of  State of Maharashtra v. M.H. George, when the defendant pleaded ignorance in front of the court on the ground that he did not know about the recent changes which took place in the Indian legislation regulating the foreign exchange, the court rejected the plea and held him liable under the Act and held that the publication of changes made in the existing Indian laws cannot be expected to be made in every country and therefore ignorance of Indian law cannot be pleaded.

In the case of Sabu Mathew George v. Union Of India, the plaintiff was an activist and he filed a writ petition challenging the display of an advertisement in the Indian search Engines contending that it was violative of Section 22 of the Pre-Natala Diagnostic Techniques (Regulation and Prevention of Misuse Act), 1994 as the advertisement was related to pre-natal sex discrimination. The court took the issue in consideration and ordered the respondents Google, Microsoft and Yahoo to auto-block the advertisement.

The application of provisions under Section 3 and Section 4 is limited to offences committed within the circumscribed boundary of the territory of India. What constitutes the territory of India has been defined under Article 1(3) of the Indian Constitution. Which says that the territory of India comprises of:

  • Territories of the states, 
  • Union territories which are specified in the first schedule, and 
  • Other acquired territories.  

Liability of a Foreigner Who Obtains Indian Citizenship After Committing an Offence as a Foreigner 

In the case of Fatma Bibi Ahmed Patel VS. State of Gujarat, the appellant was a citizen of Mauritius and her son and daughter-in-law were residing in Kuwait. The Appellant frequently visited India on Visas and used to stay in her relative’s home. The son of appellant Hanif Ahmed Patel married the complainant. After some time the relation between the son and daughter in law of the appellant became strained and so the daughter in law filed a petition before the chief judicial magistrate, in Gujarat against the alleged physical and mental torture by her husband. The court held that the essential condition for the application of Section 4 is that the crime should be committed in India and so the law is not applicable on a foreigner who obtains the citizenship of India after the commission of the offence. Therefore, the petition filed by the daughter in law of the appellant was not maintainable.

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Effect of  Reading Sections 3 and 4, Indian Penal Code, 1860, with Section 188 of Criminal Procedure Code, 1973

According to Section 188 of the Criminal Procedure, 1973. When a wrong is committed outside the territory of India:

  • By any citizen of India, either on the high sea or elsewhere, or
  • By any non-citizen on ship or aircraft which is registered in India.

He may be made liable in accordance with the provisions of Indian laws as if the offence has been committed within the territory of India. 

Thus, Section 3, Section 4 and Section 188 together form a class of law dealing with the trial of a person who has committed any act or omission outside the territory of India but that act or omission has resulted into a wrong in accordance with the provisions of the laws in force in India. Section 188 mandates the prior approval of the Government of India for the trial of every wrong committed outside the territory of India. 

In the case of Samaruddin v. Asstt.Director of Enforcement, the court held that the courts in the country do not have the authority to try an offence committed outside the territory of India without the prior sanction of the central Government.

In the case of Om Hemrajani v. State of U.P., the accused had the full knowledge of his inability to pay back the loan amount which he took from a bank at UAE and absconded from the place thus, defrauding the bank. In an appeal against the accused by the bank under Section  415, 417, 418 and 420 read with Section 120-B of the IPC before the magistrate’s court at Ghaziabad. The court taking cognizance of the case, the court held the accused liable and issued a non-bailable warrant against him. The accused challenged the magistrate’s order before High Court and also alleged that the said court had no jurisdiction over the matter. the court held that the Section 188 of the CrPC makes it elastic for the victim at a foreign land who has been wronged by any person within the territory of India to file a complaint before any court in India whichever he finds easier to approach. Any foreigner who has been victimized by a person within the territory of India cannot be expected to first come to the territory and then ascertain where the offender is or can be found thereby determining the court which has competent jurisdiction. Therefore, the victim is at the liberty as per Section 188 of CrPC to approach any court which he finds convenient to approach.

Admiralty Jurisdiction

Admiralty Jurisdiction is the jurisdiction which confers the power to try offences which are committed on the high seas. Incorporation of Admiralty Jurisdiction into the Indian statutes was the result of various charters and British statutes, for example, Admiralty Offences Act, 1849, Colonial Courts of Admiralty Act 1890 conjointly read together with the Indian Colonial Courts of Admiralty Act 1891, and the Merchant Shipping Act, 1894. The notion that a ship which floats on the high seas is like a floating island is the basic principle behind the Admiralty Jurisdiction. The extension of Admiralty Jurisdiction is over the cases which involve the following offences:

  • Offences which are committed on the Indian ships on the high seas;
  • Offences which are committed on foreign ships within Indian territorial waters.

In Enrica Lexie Case, an Italian ship named Enrica Lexie while passing off the coast of Kerala fired at a fishing boat registered in India, thereof. The firing resulted in the on-spot death of 2 fishermen. Against the Italian mariners, an FIR was filed and the Italian ship marines were arrested. In response of which the Italian mariners filed a writ petition before the Kerala High Court challenging that the FIR is not maintainable since the incident took place at a place which was 20.5 nautical miles from the coast of India. The court quashed the writ and held that Section 2 of the IPC conferred the Kerala Police jurisdiction over such cases. Later, the Supreme Court held that subject to the provisions of Article 100 of The United Nations Convention on the Law of the Sea, 1982 the Union of India was entitled to prosecute the accused. Article 100 of The United Nations Convention on the Law of the Sea 1982 that such cases are outside the jurisdiction of provides that such cases are outside the jurisdiction of the State Governments and can be conducted only at the Federal/Central Government level. Therefore the court directed the Central Government to set up a Special Court to try such cases and the State of Kerala had no jurisdiction in the matter.

Proposals for reform

  1. Section 2 of the IPC specifically states that act or omission contrary to the provisions of the Code shall be punished in no other ways but according to the provisions of the Code. the main reason for the incorporation of such provision was that during the time when IPC came into force there a lot of other laws which were in force in the country but factually after Indian Penal Code came to force most of the old laws have already been repealed and therefore this provision of IPC in today’s scenario is redundant and can be deleted from the statute.
  2. Section 3 and Section 4 deals with the extraterritorial jurisdiction with the courts, according to these Sections a person can be held liable for any act or omission which is contrary to the provisions of the Act even if such an act or omission has been committed beyond the territory of India.  Section 18 elucidates the meaning of India as territory of India except for the state of Jammu and Kashmir. The question which arises is that does the territorial water of India is included within the territory of India. The question is further concretized with the situation that what if the men in a foreign fishing boat hurt men in an Indian fishing boat when he boats are at 10 miles from the territory of India. Therefore it should be made clear by mentioning in Section 18 of the Act that the territorial waters are included within the meaning of territory of India.
  3. Section 4(1) of the Code makes the provisions applicable to the offences committed by Indian citizens beyond the territory of India. It is desirable to extend the extraterritorial application of the Code to the aliens who render service to the state or central government;
  4. With the technological expansion, the new concept of cyberspace has come up and so the Code must make provisions with respect to that as well to retain its comprehensive character.

Conclusion

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. The term legal body includes within its ambit a court, political or government office or a law enforcement agency. Jurisdiction with respect to a judicial authority is the limit or the extent of judicial authority it has over dealing with the cases, appeals and other legal proceedings. The reason behind the introduction of the concept of jurisdiction is to ensure that the courts adjudicate and try only those matters which fall within the territorial and pecuniary limits of the court. The legislature time and again makes various laws related to a jurisdiction which is useful for proper dispersal of justice. Thus, making the country a better place to live in by making the judicial institution more sorted and organized.

References


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