Extent and Operation of the Indian Penal Code – Jurisdiction
The preamble of the Code states that the main objective of the legislation is to provide for a Indian Penal Code for the country i.e. India.
Section 1 titles the Code and states the extent and scope of its operation. Section 2 renders criminal responsibility for offences that are committed within the territory of India by any person. Section 3 and 4 imposes punishment with respect to offences which are committed without and beyond India. Whereas Section 5 is a saving clause.
When the British took over India, there were a lot of conflicting and contradictory decisions given by different presidencies.
So, the Law Commissions were made to frame the Indian Penal Code which finally came into force on 01-01-1862.
Section 1 :
Title and extent of operation of the Code.—This Act shall be called the Indian Penal Code, and shall [extend to the whole of India [except the State of Jammu and Kashmir]].
It declares that the name of the code shall be Indian Penal Code (hereinafter referred as IPC) and will operate all over India.
Before the Abrogation of Article 370 of the Constitution of India, IPC was not applicable to the State of Jammu and Kashmir (the Ranbir Penal Code was the main criminal code applicable to the state prior to scrapping of provisions of Article 370)
Section 2 :
Punishment of offences committed within India.—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].
Every person shall be liable to punishment under this code for every act contrary to the provisions mentioned, of which it shall be guilty within India.
Territorial Jurisdiction :
- It refers to offences which are committed within India and declares that every individual would be liable to punishment under the code for the act done, which is prohibited by law.
- The jurisdiction of the criminal offences depend on the locality, where the offence is committed for which the accused is charged, was committed in India.
- The territory of India not only comprises land, internal waters such as rivers, lakes or canals, and also a portion of sea lying along which is called Maritime Territory which is to a distance of 12 Maritime Miles from the BaseLine.
It also includes ships and aircrafts whether armed or unarmed, and the private ships whose owner is India.
Every Person :
- The term not only includes citizens but also non-citizens and even foreigners visiting the country.
- A foreigner cannot plead ignorance of law or his unawareness about any criminal act, which is not an offence in his country. Thus, any offence committed by a foreigner within the Indian Territory would be liable under Indian Penal Code.
- Here every person does not include a non-judicial person corporation or a company, as such person cannot be charged for offences of murder, dacoity, rape, etc. as it can be committed only by a homo sapiens (human being).
- The criminal liability for an offence arises on the basis of the laws applicable in the country, where the offence is committed and not on the basis of laws applicable in the country of the person who committed it.
Mobarik Ali Ahmed v. State of Bombay (1957 AIR 857, 1958 SCR 328)
The appellant was convicted for the offence of cheating under Section 420, read with Section 34 of IPC. The complainant was the director of an export import company in Goa, he contacted an agent Jaswalla to import rice. A contract was bought by Jaswalla between the appellant (a trader in Karachi) and complainant, for purchasing 2,000 tons of rice at $51 per ton to be shipped from Karachi to Goa and the complainant must pay to the appellant through the agent 5.5 lakh in 3 installments. As admitted the rice was not shipped and the money was not returned. The appellant urged that he was a Pakistani national and during the period of a fence never came to India and he would not be liable under Section 4 of IPC.
However, the court held that although the appellant was making representations at Karachi to the complainant through letters, telephones, either directly communicating with the complainant or through Jaswalla about the stock of rice and money exchange. On these facts the Supreme Court upheld the conviction and held that the offence was committed by the accused at Bombay, even though he was not physically present there at the material time.
Law also provides immunity to high dignitaries, heads of foreign governments, ambassadors, diplomatic agents, councils, etc. from criminal prosecution. This immunity has been universally acknowledged by all countries.
Extra-Territorial Operation
Section 3 :
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].
It gives criminal jurisdiction to the courts to try for an offence committed by a person beyond the territory of India, provided such a person is subject to Indian Law.
For Example : If Indian army murders a person in Bhutan, while in service would be liable for the offence in the same manner as if it was committed within India.
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.
The Indian Penal Code would even extend to offences committed by a citizen of India in any place outside and beyond India, whether it is committed on any ship, or aircraft registered in India.
The rationale behind such extension is based on the contention that every sovereign state can regulate the conduct of its citizens, wherever they might be for the time being.
For Example : If an Indian citizen, in India has a wife and three children, goes to the US for employment. There if he marries an American girl. So on his return to India, he can be prosecuted for bigamy as it is an offence in India under section 494 of IPC.
In Supreme Court case of Fatima Bibi Ahmed Patel v. State of Gujarat (May 13, 2008)
Fatima Bibi was a citizen of Mauritius and her son and daughter-in-law were residing in Kuwait. Fatima Bibi had been visiting India on visas and stayed in India with her relatives in Gujarat. Son of appellant Hanif Ahmed Patel married the complainant(respondent). It appears that the relation between the couple became stained and petition was filed before the Chief Justice Magistrate, Gujarat by the complainant alleging physical and mental torture by her husband (first accused) under Section 498A, IPC and also against the appellant alleging instigation of her son accordingly.
The court held that since the offence is said to have been committed in Kuwait, the provision of IPC or CrPC can’t have any application.
Section 4 of IPC clearly means that if at the time of commission of the offence, the person committing is a citizen of India, that even if the offence is committed outside India, he is subject to the jurisdiction of the courts in India. However, if at the time of commission of the offence the accused person is not a citizen of India, then the provisions of the section have no application whatsoever.
It was held that at the time of the commission of the offence the accused person is not a citizen of India, then he can’t be prosecuted under IPC.
A ship or aircraft which has a country’s flag is considered a part of the territory of the country. Thus, any person that means even a foreigner if commits a crime on board will be liable under IPC.
Territorial operation of the code is extended to any offence committed by any person in any place without and beyond India targeting a computer resource located in India.
For Example : A a citizen of India commits a murder in Uganda. He can be tried and convicted for murder either in India or the place in which he may be found.
Lee Kun Hee v. State of Uttar Pradesh
The complainant had his proprietorship company in Rohini and supplied packages to a company which was set up in British.
The bill of exchange was received by the complainant but didn’t receive any responses against it. The seller filed a petition for criminal prosecution for criminal breach trust and cheating. The accused denied the allegations saying he was not present in India during the time of offence.
The court held that the communication was made in India, that the action has connectivity from India, so the court had jurisdiction to try these cases under Section 179 of CrPC.
Section 5:
Certain laws not to be affected by this Act. – 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 provisions of any special or local law.
It is a saving clause to Section 2 of IPC. It exempts the jurisdiction of this code in cases where separate provisions have been made by any local (law applicable to a particular part of India) or special law (law applicable to a particular subject) in order to deal with offences as mentioned therein.
The general code does not repeal or modify special legislation. Where there is a conflict between the code and the special law, the code shall not apply. If there is no conflict effect may be given to both, but a person cannot be punished under both the code and the law for the same offence on the principle of double jeopardy (wherein no person shall be subject for the same offence twice).
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