Legal

Intra and Extra Territorial Authority/Jurisdiction in IPC: An Inextricable Concept

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This Blog is written by Anindo Chatterjee from Amity Law School, Noida. Edited by Prakriti Dadsena.

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“Jurisdiction is not given for the convenience of the judge, but for the litigant.”

Blaise Pascal

[Abbreviations- Gov. -Government, Sec.- Section, Cl. – Clause, Pak.- Pakistan, St.- state]

INTRODUCTION

The Indian Penal Code 1860 (hereinafter referred to as IPC), is one of the most complex arrangement of laws in the globe. With the challenges it faced of providing adequate punishments for the wrongdoings, issues also arose regarding the jurisdiction. This law aims to answer some tricky, probing questions like, what should be the outcome with foreign individuals who committed crimes against Indian citizens or what should be the outcome with Indian citizens who commit crime outside India, or what happens to individuals who target any kind of computer devices/resources/servers within India. Taking a casual outlook towards the IPC we may come to form the very first look view that it is a very old law and could come across even as outdated to some law scholars/students. Nonetheless, that is as farthest from the truth as it not even can be expected. The IPC has gone through a myriad of changes from its inception in 1860. Regarding jurisdiction, current IPC has far less limitations as compared to its earlier version. One of the biggest changes has been the inclusion of the landmass of Jammu and Kashmir (hereinafter referred to as J&K) in the jurisdiction of IPC. Earlier in J&K, Ranbir Penal Code (RPC),1932 was handling the penal provisions and the jurisdiction related matters of the region, after the removal of Article 370, the omission of the words “except J & K” by the J & K Reorganisation Act, 2019, sections 95, 96 and Fifth schedule, table-1(w.e.f 31/10/2019). [1] There are different kinds of jurisdiction under the IPC, such as Subject-matter jurisdiction, territorial jurisdiction, pecuniary jurisdiction etc. but in this article we’ll focus upon the intra and extra territorial jurisdictional aspect of the IPC to keep it concise and crisp without plunging our readers into monotony.

BACKGROUND

The IPC in anyway cannot be said be a law with limited jurisdiction in a negative light. It cannot be thought by a foreigner that he may come to India, commit an offence punishable under the IPC and escape unscathed, he shall be punishable under Section 4(1) of the IPC similarly if an Indian citizen commits a crime outside India he shall still be punished according to the laws of India as if that crime had been committed within the limits of Indian territory. If an individual performs a cyber attack upon a computer device/resource/server in India he/she will be liable under the Section 4(3) of IPC and then disregarding the actual position of such individual (could be anywhere in the world) he/she shall be liable. [2]

RELEVANT PROVISIONS

Intra-Territorial Jurisdiction

Section 2 of the IPC relates to the intra territorial jurisdiction of the IPC. This section helps universalize the scope of the IPC because it includes every person within the limits of India whether or not a citizen of India, that is not for question, but every act or absence thereof he/she commits in contravention to the provisions herein shall be liable to be punished within India.

Every Person

Every individual is made liable, void of any discrimination based on position, race, caste, creed, on the condition that the wrong doing he has been charged with been committed within the territory of India. Even if an outsider (not an Indian citizen) need not give an express consent to be governed by Indian law in fact their mere presence in India is enough in case they commit a wrong doing under this law, even a company does not get exempted from the clutches of this law. Following are the exceptions-

1. President and Governors– The Presidents of nations and Governors of states are excluded from the hegemony of Criminal Courts according to Article 361 of the Constitution of India.

2. Foreign Sovereigns– Sovereigns from other countries are free from the IPC, because they are separate sovereign authorities and any kind of criminal jurisdiction on them would be against their regality

3. Diplomats and Ambassadors– An Ambassador of a country is the representative of a Foreign Sovereign and enjoys the same immunity as that of the Sovereign. Ambassadors and Diplomats are provided immunity under the United Nations (Privileges and Immunities) Act, 1947 and the Diplomatic Relations (Vienna Convention) Act, 1972. [3]

4. Enemy Aliens– For any act regard of war, Alien Enemies would not be obligated under the IPC and for them, Martial Law would be appropriate. Nonetheless, Alien Enemies would be at risk for offenses submitted under the IPC that are not according to war, like burglary or theft.

5. Armies of other countries– Army personnel from other countries that entered with the due permission of the Govt. shall not be triable under the criminal courts of law of India.

Extra/auxiliary Territorial Jurisdiction

Sec. 3 and Sec. 4 of the IPC deal with the auxiliary jurisdiction under this code.

Section 3– In this section is clearly stated that if a person that is bound by Indian law, and he commits a crime outside the limits of Indian territory he/she is still liable to be prosecuted in India for the same offence.

Since sometimes it is difficult to get the gist of the section merely by reading the language of the act let’s understand it through an illustration-

Illustration– Belu (Hindu), a citizen of India commits an act of having two marriages in the city Lahore, in territory of Pakistan. There, it is not a crime to have two marriages but Belu shall be persecuted in India for his offence of Bigamy in Pakistan.

Here by this illustration, we can easily understand that, though B didn’t commit a crime according to the laws of Pakistan when he was there but that wouldn’t exempt him from penalty in India under the IPC.

Section 4– As if Sec. 3 wasn’t enough to augment the strength of this glorious piece of law i.e., IPC. Sec.4 came into the fore and granted further superpowers.

For instance, while this law anyway includes the majority of contents of S.3 mentioned in the section 4(1) but it also includes any person boarding a ship or aircraft that is registered in India regardless of its position anywhere in the world {section 4(2)}. Moreover, that is not all IPC has also augmented its jurisdiction by including computer resources like mobile phones, computers, servers etc. in India and if any individual no matter where he/she is situated may commit a criminal breach of the said computer resources he/she will be liable under the IPC {section 4(3)}. [4]

Due to the sheer importance of this section as it took the jurisdiction of IPC to a digital dimension, I feel it is important to mention that this change was made by the Act 10 of 2009, mentioned there in the S. 51(a)(i) (w.e.f 27-10-2009). [5]

Illustration- 4(2)- Alex a citizen of Greece is boarded upon a ship SAMUDRA that is registered in India, Alex commits a murder of his wife Diana who is an English citizen, in this case despite being citizens of distinct countries, but since Alex was present on the ship that is registered in India, he’d be tried for the offence under the IPC.

4(3)- Jack a professional cyber hacker from Liberia, commits a breach of bank servers in India and steals 1 billion $ from Chindi bank situated in India, here in this case Jack would be liable under the IPC.

As the word “computer resource” has been used in this article and even in the bare act of IPC it shall have same meaning as the cl. (k) of sub sec. (1) of sec. 2 of the Information and Technology Act,2000. [6]

Section 5– This section lays down that certain laws would not be in any way impacted by IPC, those laws would be provisions for punishing revolt, abandoning of officers, servicemen, service women, seamen or airmen in the duty of the Authorities of India or provisions of any special laws or local laws.

PRECEDENTS

Intra Territorial Jurisdiction

Mobareek Ali Ahmed v. St. of Bombay

A Pak. citizen persuaded a person living in Bombay to send him money via telegram application, phone conversations, and letters. When the matter was tried in court, the Pakistani national argued that he could not be held liable for the offence of cheating because he was not physically present in India. The court rejected the argument and ruled that the basis of authority under Section 2 of the Act is not the offender’s mortal presence, but the part of the country where the offence is committed, and since the offender committed the offence in Bombay, it is immaterial that he was not present within the territory of India at the time of commission of the crime. [7]

St. of Maharashtra v. Mayer Hans Georgee

The court ruled the foreigner liable under the Foreign Exchange Regulation Act, 1973, because he did not make an express declaration about the gold he was carrying during his flight and was held liable as soon as the plane touched down in Indian territory. [8]

Extra-Territorial Jurisdiction

Nazar Mohammed v. State

The court held that a citizen of another country committing an offence in India will be held guilty under Indian law, and naivety of Indian laws is not an excuse, though ignorance may be pleaded at the time of sentence mitigation. The physical presence of the offender is not required for the application of Sections 3 and 4, and the only requirement is that the wrong be committed in. The Section only requires that the offence take place in India, even if the offender is located elsewhere. [9]

Sabu Mathew George v. Union of India

The plaintiff was an activist who filed a writ petition challenging the display of an advertisement in Indian search engines, claiming that it violated Section 22 of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse Act), 1994 because it was related to pre-natal sex discrimination. The court addressed the issue and ordered the respondents Google, Microsoft, and Yahoo to automatically block the advertisement. [10]

ANALYSIS

The IPC has a wide and varied territorial jurisdiction, be it a crime committed by an Indian citizen or a foreign national but if it is committed anywhere In the Indian territory, or even a boat, aeroplane situated anywhere in the world but registered in India. However, it is not that that the IPC does not have grey areas or frailties, IPC specifically is still silent upon what if an Indian citizen turns out to be a victim of the offence that was committed by foreign individual in a foreign place or a foreign boat, aeroplane, vessel a few kilometres away from the Indian territory. This would put the life of such a victim in jeopardy since those criminals won’t be punished by the IPC and could go roaming free even in the territory of India after committing the crime. Yes, they could be punished by the laws of their home countries but only when they report back still IPC should include such provisions which punish the offenders who may be of a foreign country and have not committed the crime specifically in the territory of India but due to the uncertainty of the territory and wrong done to the Indian citizen, taking equity, good conscience into consideration that foreign national in India that committed the crime against Indian citizen should be punished.

I feel that, in these circumstances the solution will be that the IPC needs to take a Victim centric approach rather than the usual criminal centric approach to dispense complete justice.

CONCLUSION

Overall, IPC has gone through a few centuries worth of changes, which have made it a comprehensive yet concise piece of legislation, which also stands the test to time to some extent, however this law like many other laws is not perfect and has from time to time being supplemented by other laws like The Information Technology Act, 2000 which holds many provisions regarding cyber offences. A person of a foreign origin should not assume that his origins would guard him against his wrong doings in any way committed in India, however as I have also mentioned in My Analysis that there are grey areas such as offences committed by a foreigner against an Indian citizen a few kilometres away from the Indian territory.

Hence if these corrections are made too then the IPC would come out as an even stronger law.