This has been presented to you by Muskan Gupta, BBA LLB, GIBS (GGSIPU)
According to section 1 of the Indian Penal Code, 1860 it “extends to the whole of India, except the state of Jammu and Kashmir”. In this section, the territory of India consists of the territories of the States, Union Territories as specified in the First Schedule and other acquired territories.
The State of Jammu and Kashmir, however, enjoys special status on account of Article 370 of the Constitution of India and has separate laws to govern the territory.
The code enacted in the State of Jammu and Kashmir is called the Jammu and Kashmir Ranbir Penal Code, 1932 also known as RPC 1932.
INTRA-TERRITORIAL AND EXTRA-TERRITORIAL JURISDICTION
Territorial jurisdiction is one of the most important factors of any law enforced and in operation. Generally laws of one state don’t get enforced in another state. The Indian penal code on other hand has provisions that say that the jurisdiction of this penal act is both intra and extra-territorial.
Extraterritorial in the sense that it will empower a court to enforce its jurisdiction over the citizens of a state even though the crime/s they have committed is beyond the territorial and jurisdictional limits of the state.
That they can be incarcerated for the crimes committed inside as well as outside of our country.
According to Section 2 of Indian Penal Code,1860-
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.
This section highlights the jurisdictional scope of operation of IPC within the territory of India. According to this section, the act applies to ‘every person which means that it doesn’t differentiate on the grounds of class, caste, creed or religion or anything for that matter.
It applies to every person that is present and residing in India. It also doesn’t differentiate between an Indian national or a foreign national.
How a foreigner is liable under IPC, 1860-
A foreigner when convinced of any crime under IPC in India, cannot take the defence of lack of knowledge of Indian laws or that the act committed is not an offence in their respective country.
In the case of State of Maharashtra vs Mayer Hans George , In this case, the respondent Mayer Hans George was a foreign national, who left Zurich for Manila by plane on 27 November 1962. The flight stopped in Bombay.
In Bombay, he didn’t get off the plane and stayed back. The customs officials searched the plane and found that he was carrying 34 kg of gold in the form of gold slabs in his coat pockets.
According to the notification of the RBI dated 8 November 1962 and published on 24 November 1962, restrictions were placed on the transit of gold carried from a place outside India to another place outside India.
The passengers were required to make a declaration in the “Manifest” for transit. Since George had not made such a declaration, he was arrested and subsequently charged for importing gold into India in contravention of the official notification by the RBI.
It was contended that Mayer Hans George was not aware of the notification imposing the condition that such declaration of carrying and shipment of gold should be made.
The Supreme Court held that- “It is obvious that for an Indian law to operate and be effective in the territory where it operates viz, the territory of India, it doesn’t need to either be published or be made known outside the country… it would be apparent that the test to find out effective publication would be publication in India, not outside India to bring it to the notice of everyone who intends to pass through India.”
Thus it was held that ignorance of Indian law by the respondent was not an excuse and the conviction was upheld.
In another case of Mobarik Ali Ahmed v state of Bombay, a Pakistani national committed cheating in India, while staying in Karachi by making false representations through letters and telephonic conversations to the complainant in Mumbai.
Due to these false representations, the complainant wired several instalments of money to the accused.
Judgement- It was held that it is immaterial whether the accused was present or residing in India or not, the IPC was applicable on him because he committed the crime within the territory of India.
Thus the IPC states that if the crime is committed in India by a foreign national without actually being present or residing in India, it will come under the jurisdiction of the Indian Penal Code. And also if a series of crimes start somewhere else but ends in India, the jurisdiction of such crime is within India.
SECTION 5 – AN EXCEPTION TO SECTION 2
Section 5 of the IPC gives that in certain offences the separate provisions made by special or local law will be applicable rather than the IPC.
It reads as, 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.
This means the offences of mutiny and desertion by officers of Army, Navy or Air forces under the service of the Government of India will be governed by separate laws i.e., the Army Act 1950, the Navy Act 1957 and the Indian Air Force Act 1950, respectively.
Also, any separate provisions made for any offence/s by special or local law will prevail over the provisions of IPC in the case of those offences only.
The principle of the exception made by section 5 came from the Latin expression, generalia which specializes in non-derogant, which means that general words do not repeal special laws.
The word ‘special law’ as defined in section 41 of the act is ‘ a law applicable to a particular subject.’ and local laws have been defined in section 42 as a law applicable to a particular part of India.’
In case of conflict, the local/special laws will prevail over IPC. In case of no conflict, they can be interpreted hand to hand.
Section 3 and section 4 of IPC deals with the extraterritorial jurisdiction of IPC. Extraterritorial jurisdiction means that it will empower a court to enforce its jurisdiction over the citizens of a state even though the crime/s they have committed is beyond the territorial and jurisdictional limits of the state.
According to 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.
This means that any person who has committed a crime beyond the territory of India will be held liable as if the crime has been committed within India.
It is immaterial whether the person is an Indian citizen or not.
In the case of Kari Singh vs Emporer, it was held that for a person to be tried under section 3 of IPC, two conditions have to be fulfilled, those are-
- The person has committed a crime outside India, which if commited in India, would be punishable by IPC.
- The person, under some indian law, is liable to be tried in India for that offence.
Now section 4 is the extension of section 3 in the sense that it gives further clarifies the grounds of extraterritorial jurisdiction of IPC. It reads as-
According to 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 targetting a computer resource located in India.
Explanation- In this section
(a) the word “offence” includes every act committed outside India which, if committed in India, would be punishable under this Code;
(b) the expression “computer resource” shall have the meaning assigned to it in clause (k) of sub-section (1) of s 2 of the Information Technology Act, 2000 (21 of 2000).
In the case of Mobarik Ali Ahmed v state of Bombay , the court observed that-
- a foreigner who commits the crime within india without his corporeal presence in India, will be tried according to the IPC.
- Being a foreign national does not exclude one from the liability of offences under IPC.
The crime committed under high seas can be tried under IPC and the jurisdiction to try those offences is known as Admiralty Jurisdiction.
The jurisdiction is placed in two cases-
- Offences committed on indian ships in high seas.
- Offences committed on foreign ships on indian territorial water.
In the case of the Republic of Italy through the Ambassador vs Union of India , two Italian Navy Military contingents on the Italian ship within the Contiguous Zone and EEZ of India, while passing through Kerala, shot at a fishing boat registered in India. This killed two out of eleven fishermen.
The accused contended that the ship was outside the territorial waters and in high seas so India has no jurisdiction to try them for this case.
Judgement- the court held that as the incident of a ring from the Italian vessel on the Indian shipping vessel occurred within the contiguous zone (CZ), the Union of India, is entitled to prosecute the two Italian marines under the prevalent criminal justice system in India.
Criminal laws are laws that have very great importance in dealing with human beings in private as well as in the public sphere. The enactment of the Indian penal code was done to fulfil this purpose only.
The Indian penal code is applicable within the territory of India except for the state of Jammu and Kashmir.
Applicable to both Indian and foreign nationals. Its jurisdiction can be intra or extraterritorial. The crimes committed on the high seas are also tried under this act. State of Maharashtra v Mayer Hans George, AIR 1965 SC 722: (1965) 1 SCR 123. Mobarik Ali Ahmed v state of Bombay, AIR 1957 SC 857: (1957) Cr LJ 1346 (SC). 3. JK Cotton Mills vs State of Uttar Pradesh, AIR 1961 SC 1170: (1961) 3 SCR 185. Kari Singh vs Emporer, (1921) ILR 40 Cal 433. The Republic of Italy through the Ambassador vs Union of India, (2013) 4 SCC 721: 2013 (1) Scale 462.