Intra and Extra Territorial Jurisdiction I.P.C.

INTRODUCTION

The jurisdiction comes from the Latin roots of ‘juris’ means the law and ‘dicere’ means to speak. It is the authority given to administer, operate and legislative over a state. It establishes the limitations on matters of geographical control of the authority granted. In the year 1843, the first Law Commission drafted a comprehensive penal code to provide for all the criminal activities headed by Lord Macaulay.

The draft went through a lot of analysis and alterations after which it was passed in the year 1860. Jurisdiction and operation of the Indian Penal code (IPC) is dealt with in Section 1 to 4. It is the power to exercise control and adjudicate over disputes and take necessary legal action against it[1]. Territorial jurisdiction is nothing bur the geographical limits of a state within which any offence or dispute will be adjudicated. The territorial jurisdiction extends twelve miles into the water bodies as well as mentioned in the notification issued by the Government on 30 September 1967.

INTRA TERRITORIAL

Section 2 of the IPC deals with intra territorial jurisdiction of the Criminal courts in India. It clearly gives the authority to take action against any person irrespective of his caste, creed, religion, region, etc. if they have committed a criminal offence within India[2].

Under section 2 It mentions ‘every person’ which clearly means that irrespective of citizen or non-citizen, foreigners and even legal persons such as companies and other organisations. This section also holds principal in the principal-agent relationship liable in cases of Vicarious Liability[3].

“Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect if the State should succeed in getting him within its power.” [4] are international theories followed by many countries and are to be taken into consideration. However, the essence of such legal doctrines is the fact that any person if acted against the laws or an omits that causes public harm to the State, he must be penalised by that State irrespective of the person and his status.

There are few offences that can be committed only by individual human beings such a murder, treason, bigamy, rape, perjury etc[5]. A company which does not act by or for itself but acts through some agent or servant cannot commit the above-said offences or be given the imprisonment or corporal punishment. However, keeping all the factors in mind ‘person’ includes companies and organisations as well but with certain exceptions.

‘A perfect rule is the one with exceptions.’ This rule does have exceptions too as there are a certain group of persons who may escape from being sued under Indian Criminal Courts.

• Foreign Sovereigns: They cannot be punished under the IPC abiding to the international laws[6]. The theory of immunity is followed as a sovereign state cannot sue another. The foreign national is considered to have the highest position as he is considered to represent his country. This is a matter of jurisdiction as only when there is jurisdiction can you exempt a person from it. Hence, as the IPC includes all ‘persons’ the ‘jurisdictional immunity’ is also enjoyed. To make sure justice is served, the person undergoes trial under his own state by the authority who has the right to adjudicate this matter. The sovereign national is also expected to not behave or act in a way whose consequence will bring him to a level of exercising his immunities as he is representing his country[7].
• Ambassadors: They also are immune from criminal trial under Indian courts as they are present in our country as a representation a whole nation and they undergoing a trial is similar to their whole nation undergoing a trial which also largely affects the world politics[8].
• Alien enemies: The acts performed in relation to war cannot be tried in criminal courts as they come under acts of war. Any other act or omission that has no relation to acts of war or threat to national security is not jurisdictionally immune.
• Foreign Army: When with authorization of the state the army approaches another state, they automatically enjoy immunity from trial.
• Warships: Their presence in foreign waters makes then immune of charging them under any offence.

EXTRA TERRITORIAL

Section 3 and 4 deal with extraterritorial disputes and lay down the authority over such disputes. Section 3 clearly states that any Indian citizen who commits any offence outside India irrespective of whether it is an offence in that country will be tried in the criminal courts of India[9]. Here, the question of jurisdiction is not about geographical borders but an explicit clause that provides for any offence committed by any citizen anywhere in the world.

Section 4 address any person who has committed the offence and is found in India. Here is where either extradition takes place or extraterritorial jurisdiction is exercised to adjudicate the matter. This section is not limited to a citizen and extends over any offender with exception such as extradition. It is a process where one state surrenders a fugitive offender to the other so that he may be tried according to his own country laws. Although he enjoys immunity in the foreign land, the principle of no crime must go unpunished does prevail and he is tried in his homeland.

Extraterritorial jurisdiction is limited yet does exist in three different matters: (a) on land, (b) on waters, (c) in the air as well. Their implications also differ as they are three different contexts and must be dealt with in distinction. On land not only sections 3 and 4 of the IPC provide for it but also sections in the Criminal Procedural Code[10]. Indian citizens are liable under the criminal laws laid in India irrespective of their place of commission.

On waters, the concept of admiralty jurisdiction is followed which states that any ship sailing is nothing but a moving island of the country whose flag has been borne. If the ship is foreign then India will not have jurisdiction over it as it considered to be a representation of that particular nation but if it is a ship that belongs to India, any offence committed in the home or foreign waters will be tried in Indian courts under Indian criminal laws. In cases of Piracy, it is illegal in every country and irrespective of the territorial waters or the flag it is bearing can be tried in India as well as in the foreign country involved. Offences committed in Indian territorial waters will come under such jurisdiction as well, keeping in mind the fact that offences committed in the territorial waters is similar to offences committed in the homeland.

On air, the provisions of IPC apply on all Indian registered aircraft. It is clear that there is no question about geographical jurisdiction and the country where the said aircraft has been registered will have the jurisdiction over the matters concerning it.

CONCLUSION

The jurisdiction clauses in the IPC essentially state absolute control over Indian citizens and immunity to any foreigners who fall under a certain category due to international laws and statutes. The term ‘within India’ marks its geographical limits. The rationale behind the establishment of this concept is to clarify which authority has control over what kind of matters and also to avoid any territorial conflicts. The territorial jurisdiction only deals with the geographical borders and the complications that can come with it. There exists other bases on which jurisdiction is differentiated upon such as on pecuniary terms, the subject-matter of the dispute, etc.

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References:

[1] Hriday Nath Roy vs. Ram Chandra AIR 1929 Cal 445

[2] Mobarik Ali Ahmed vs. State of Bombay, AIR 1957 SC 857

[3]  Emp. V Kastya Rama (1871) 8 Bom H.C.R. 63,

[4] Hackworth’s Digest of International Law (1941 Edition), Vol. 11, at p. 188

[5] State of Maharashtra v. Syndicate Transport Co.(P) Ltd., AIR 1964 Bom 195

[6] United Nations Privileges and Immunities Act, 1947

[7] Schooner Exchange v. M. Faddon [(1812) 7 Cranch 116]

[8] The United Nations (Privileges and Immunities) Act, 1947 (Act No. XLV of 1947) of India,etc.

[9]  Remia v. Sub-inspector of Police, Tanur, 1993 CrLJ 1998 (Ker)

[10] Emperor v. Vinayak Damodar Savarkar, (1911) 13 Bom LR 296