INDIAN PENAL CODE, 1860
EXTRA TERRITORIAL JURISDICTION
EXTRA TERRITORIAL JURISDICTION
Section 3 and 4 deal with extra-territorial operation of the IPC. Provisions of these sections extend the jurisdiction of courts in India over citizens of India beyond the territorial limits of India. The rationale behind such an extension of jurisdiction is based on the assumption that every sovereign state has a legitimate right to regulate and govern its own native-born subjects everywhere any anywhere.
Two conditions have to be fulfilled before Section 3 is pressed into service: First, there should be an allegation that a person (whether a citizen of India or not) has committed outside India an act which, if committed in India, would be punishable under the IPC, and Secondly that person is liable under some Indian Law to be tried in India for that offence.
Section 4 expands on Section 3, while at the same time clarifying that the provisions of the IPC shall apply: i). in case of Indians, for any offence committed outside and beyond India; and
ii). in case of ‘any person’ (thereby meaning others), for offences committed by them in any ship or aircraft registered in India, wherever it may be.
iii). any person in any place without and beyond India committing offence targeting a computer resource located in India.
Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, 1953, SC 394.
In this case, Shiv Bahadur Singh and another person were the Minster for Industries and the Secretary to the Industries Department of the then United State of Vindhya Pradesh. In the year 1936, the Panna Durbar (Government) entered into a 15-year lease contract with the Panna Diamond Mining Syndicate to operate the diamond mines. In October, 1947, when the two above named persons were the Minister and Secretary, the permission to mine was abruptly terminated on the round that the syndicate was not carrying on operations properly. By February, 1949, it was alleged that the two persons had conspired together and were demanding money for the purpose of revoking the cancellation orders. They were also alleged to have received, as a first instalment, illegal gratification to the tune of Rs. 25,000/- at the Constitution House, Delhi. They were prosecuted for offences under Sections 120B, 161, 465 and 466, IPC, for demanding and receiving illegal gratification.
The Supreme Court was of the view that though the offence of giving gratification money took place outside the State of Panna (at Delhi), Sections 3 and 4, IPC, clearly covered the field, and when read with Section 188 of the criminal procedure Code, permitted the prosecution to be launched against the appellants. Hence, the conviction of the appellants, including the extra-territorial offence said to have been committed by the first appellant, was held not to be open for challenger.
Liability of a Foreigner for Offences Committed in India
A foreigner, even if he had not been in India at the time the actual occurrence took place would still be liable if the act was completed in India.
Mobarik Ali Ahmed v. State of Bombay, AIR 1957, SC 857
In this case, Mobarik Ali, a Pakistani national, who operated from Karachi, had entered into a contract with the complainant at Goa for the supply of 1200 tonnes of rice. In this regard, he had entered into a long correspondence with the complainant as also his agent in Bombay through telephone calls, telegrams, letters and finally by sending some emissaries as his agents to conclude the deal on the spot and collect payments. Although, he collected over Rs. five and a half lakhs, he did not honor his commitment. He did not respond to any of the letters of the complainant. The accused actually fled from Pakistan to London, where he was caught and extradited to India to fact trial in another criminal case in Bombay. Although, three other persons were arrayed as accused along with him, he alone stood for trial as the others could not be apprehended. The Trial Court convicted him for offence under Section 420 read with Section 34, IPC.
One of the major grounds canvassed before the Supreme court was that the accused could not be tried for the offences in India, as he was not a citizen of India, that at the time when the offence was allegedly committed, he was not resident in India.
The Supreme Court, however, held as follows:
1) A foreigner who commits an offence within India is guilty and can be punished as such without any limitations as to his corporeal presence in India at the time.
2) Section 2, IPC, applies to a foreigner, who has committed an offence within India notwithstanding that he was corporeally present outside.
3) In fact, nationality cannot be a limiting principle in respect of criminal jurisdiction, which is primarily concerned with security of the state and the citizens of the state.
Liability of a Foreigner Who Obtains Indian Citizenship After Committing an Offence as a Foreigner.
If a foreigner commits an offence outside India as a foreigner, and subsequently, he acquires Indian Citizenship, the fact that he was subsequently become and Indian citizen will not make such person criminally liable for the act committed, even if such act is considered an offence in Indian law.
Central Bank of India Ltd. v. Ram Narain, AIR 1955, SC 36,
In this case, the respondent Ram Narain was a resident of Multan, which after partition became part of Pakistan. Just before Independence, he was allowed a cash credit limit of Rs. 3 Lakhs by the Central Bank of India branch at Mailsi. He had pledged stocks worth Rs. 1,90,000/- at the time of partition. The Bank’s allegation was that he owed the bank Rs. 1,40,000/-. Besides, he was found to have recovered the stocks of cotton that he had pledged and illegally diverted and sold the same at Karachi on 9th November, 1947. Later on, he migrated to India and settled down in Gurgaon. The Central Bank of India claimed the money from him, but to no avail. Thereafter, they secured sanction to prosecute from the Central Government under Section 188, Cr. PC, from the East Punjab Government, and filed a criminal complaint against him for offences under Sections 380 and 454, IPC. Ram Narain raised a preliminary objection as to jurisdiction on the ground that at the time the offence was alleged to have been committed, he was a Pakistani national, and the offence was committed in Pakistan. Hence, he was not liable for the offence. The fact that he subsequently acquired Indian Citizenship.
The Shimla High Court accepted his plea. This was appealed against by the bank before the Supreme Court.
If, however, at the time of commission of the offence the accused person is not an Indian Citizen, then the provisions of these sections have no application whatsoever. The fact of acquisition of citizenship subsequent to the committing of the offence does not confer jurisdiction on courts retrospectively for trying offences committed at a time when that person was neither an Indian citizen nor even domiciled in there.
The procedure with regard to prosecuting cases of offences committed outside India has been provided in Section 188 of the Cr. PC.
It provides as follows:
Section 188. Offences committed outside India – When an offence is committed outside India –
a) by a citizen of India, whether on the high seas or elsewhere; or
b) by a person, not being such citizen, on any ship or aircraft registered in India,
he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found:
Provided that, notwithstanding in any of the proceeding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.
The word ‘found’ in the above provisions has been held to mean the place where the person is found by the court. Section 188 deems the offence to be committed within the jurisdiction of the court where the accused may be found. How the person reached that place did not matter. It does not matter whether he comes voluntarily or in answer to summons or under illegal arrest. It is enough that the court should find him present when it comes to take up the matter.
Proviso of Section 188, Cr.PC makes it clear that no offence committed abroad is triable without prior sanction of the Central Government. The question that poses itself when we consider the import of Sections 3 and 4, IPC, along with Section 188, Cr.PC is whether the Indian courts have jurisdiction to enquire into the issue at all, and whether the prior sanction of the Central Government is required for launching investigations or prosecutions. However, sanction of the Central Government is not necessary for purposes of investigation into offences committed outside India. A conspiracy is initially hatched in India and a part of thereof is carried out outside India, the accused involved cannot assert application of proviso to Section 188. It is not attracted and no previous sanction of the Central government for any enquiry or trial in India is required as conspiracy being a substantive offence, committed in India.
Also See :
INTRODUCTION : INDIAN PENAL CODE, 1860 » Law Faculty
JURISDICTION : INDIAN PENAL CODE, 1860 » Law Faculty