INDIAN PENAL CODE, 1860
JURISDICTION (Sec 1 to 5)
The Penal Code, by virtue of Section 1 extends to the whole of India.
The territory of India comprises:
(a) the territories of the States;
(b) the ‘Union Territories’ specified in the First Schedule; and
(c) such other territories as may be acquired. (Constitution of India, Article 1 (3))
However, Section 18 of the Penal Code, for the purpose of the IPC, still defines ‘India’ to mean the territory excluding the State of Jammu and Kashmir.
Amendment has been brought in the IPC and section 1 has been accordingly amended but the legislature inadvertently did not repeal section 18.
WHAT IS JURISDICTION?
Jurisdiction is the term that refers to the limits of a legal authority. When a legal body holds jurisdiction, it has the authority to administer justice within that jurisdiction. In simple words, ‘Jurisdiction’ means, applicability of The Penal code.
In other words, it identifies the person whose conduct it regulates. Persons who are subject to some liabilities or punishments or who are entitled to some rights under the code is the object of Jurisdiction.
The Jurisdiction of the Penal Code extends to all such persons who can be called to the court, in case of violation of any provision of law. Ordinarily, no state allows another state to enforce its laws within its territory. In consonance with this rule, jurisdiction of courts is intraterritorial. However, sometimes, a penal statue may have extra-territorial operation in the sense that it may empower a court to exercise its jurisdiction over citizens of the state even if they have committed a crime beyond jurisdictional limits of the state concerned.
JURISDITION IN IPC:
Jurisdiction of IPC in Provided in Section 2, Section 3 and Section 4. Where Section 2 of the IPC deals with Intra Territorial jurisdiction of the code. Section 3 and Section 4 deals with the offences committed beyond the territorial limits of India.
Criminal Jurisdiction depends upon the locality of the offence committed, and not upon the nationality or locality of the offender. The IPC exhibits both the patterns of operation, namely, intra-territorial jurisdiction and extra-territorial jurisdiction.
Section 2 of the IPC deals with the intra-territorial operation of the IPC. It makes the Code applicable to ‘every person’ in any part of India for every act of commission or deed of omission in contravention of the Code.
The Code makes no distinction between an Indian Citizen and a foreigner, or even a corporation, for offences committed in India. The foreigner cannot also plead ignorance of the laws of the land, as a defence to escape prosecution and conviction. Whether the laws of the country should be published outside India also, so that foreigners can know about the laws in India?
In State of Maharashtra v. Mayer Hans George, 1965, SC 722, It was held in this case that it is not necessary for the law to be published or made known outside India. In this case, the respondent Mayer Hans George was a foreign national, who left Zurich on 27th November, 1962 for Manila by a Swiss plane. The flight passed through Bombay where it stopped in transit. In Bombay, he did not embark and was sitting inside the plane. At that time, based on prior information, customs officials conducted a personal search and found that he was carrying 34 kg of gold in the form of gold slabs, which were kept inside his jacket.
According to the Notification of the Reserve Bank of India dated 8th November, 1962, which was published on 24th November, 1962, restrictions were placed on transit of gold carried from a place outside India to another place outside India. The transit passengers were required to make a declaration in the Manifest for transit in the cargo of the carrier. Since George had not made such a declaration, he was arrested and subsequently charged for importing gold into India in contravention of the prevalent law. He was also sentenced to one year’s rigorous imprisonment by the Trial Court, which was set aside by the Bombay High court on appeal. However, the State government filed an appeal before the Supreme Court.
One of the main grounds urged was that Mayer Hans George was not aware of the notification imposing condition that a declaration should be made of ‘transhipment cargo’ when brought by any person in a plane transiting India.
The Supreme Court Held: 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 is not necessary that it should 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 so as to bring it to the notice of everyone who intends to pass through India. Ignorance of it (the published notification) by the respondent who is a foreigner is, in our opinion, wholly irrelevant. Similarly, the personal presence of the accused in India at the time of the commission of the offence is not essential to make the person liable for offences committed under the IPC.
In the case of Mobarik Ali Ahmed v. State of Bombay, 1957, SC 857, The Supreme Court perceiving that the basis of jurisdiction under Section 2 of the IPC is the locality where the offence is committed and that the corporal presence of the offender in India is immaterial, upheld conviction.
Facts- Mobarik Ali, a Pakistani national, for cheating even though he, while staying in Karachi, made false representations thorough letters, telephone conversations and telegrams to the complainant in Bombay and thereby induced him to part with money at Bombay. It held that the offence as committed by the accused at Bombay even though he was not physically present there. As the offence of conspiracy is a continuing offence, the visit of foreign national into the country after his having entered into the conspiracy, would give jurisdiction to Indian Courts.
In the Mobarik Ali case, the Supreme Court considered the scope of Section 2 and in particular explained the scope of the section through interpreting the terms ‘every person’ by contrasting it to the terms ‘any person’ appearing in Sections 3 and 4(2), IPC.
Section 5, An exception to Section 2.
Section 5 of the Code, which is a saving clause to Section 2 and excludes the operation of the IPC in whose cases where separate provisions have been made by a special or local law to deal with such offences mentioned therein.
Scope of Section 5
It excludes the operation of the IPC in those cases for which special legislations have been made by any local or special law to deal with such offences. The principle underlying the saying clause in Section 5 is the Latin expression, generalia specialibus non derogant, which means general words do not repeat special laws or legislations.
It is a generally accepted principle that whenever a conflict occurs between a general law and a special law, then the special law will prevail. If there is no conflict, then the effect may be given to both.
However, a person cannot be punished twice once for the special law and other for IPC offences. The personnel of the Army, Navy and Air Force are governed by the provisions of the Army Act, 1950, the Navy Act 1957, and the Indian Air force Act 1950 respectively, concerning offences of mutiny and desertion committed by them.
Section 5 of the IPC keeps these statutes, like any other special and local laws, operationally intact.
Also See : INTRODUCTION : INDIAN PENAL CODE, 1860 » Law Faculty