This post was originally based on old criminal laws, which have now been revised under the new criminal laws, the 2023 Bhartiya Nyaya Sanhita (BNS), 2023 Bhartiya Nagrik Suraksha adhiniyam (BNSS), and 2023 Bhartiya Sakshya Adhiniyam (BSA). The new amendments in criminal laws mark a transformative shift in the Indian legal landscape, addressing emerging challenges and ensuring greater protection of rights. These changes include the introduction of more stringent provisions for cybercrimes, sexual offences, and crimes against vulnerable groups. In response, the law notes have been thoroughly revised to incorporate these updates, providing readers with detailed analyses and practical implications of the new laws. The updated notes aim to equip students and professionals with the knowledge to explore the evolving legal framework effectively.
Jurisdiction
Jurisdiction is an aspect of state sovereignty that refers to judicial, legislative, and administrative competence. Jurisdiction may be defined as the power or authority of a court to hear and determine a case, to adjudicate and to exercise any judicial power in relation to it by taking cognizance of matters presented before the court. There are two kinds of jurisdiction of courts-
a) Inherent jurisdiction means that the court is not empowered to try the case.
b) Local jurisdiction means the limit of the area in which the court can exercise its power. The lex fori or law of jurisdiction controls all matters pertaining to remedial as distinguished from substantive rights. If the question of jurisdiction is raised, the trial can commence after deciding on that question.
The Bhartiya Nyaya Sanhita, 2023, is one of the most comprehensive Sanhitas worldwide, and it applies all over India. However, in certain cases, BNS may also have extraterritorial jurisdiction.
Foreigner
A foreigner who enters the Indian territories and thus accepts the protection of Indian laws virtually gives an assurance of his fidelity and obedience to them and submits himself to their operation. A foreign national committing an offence within India can be punished.
In the famous case of Mobarik Ali v. State of Bombay (AIR 1957 SC 857), a national of Pakistan made certain false representations from Karachi by letters, telegrams and telephones to the complainant in Bombay on the belief that the complainant paid a certain amount of money to the agent of the Pakistani at Bombay. The Supreme Court held that the Pakistani national was subject to the jurisdiction of the Indian Courts for having committed the offence of cheating and as the appellant had already surrendered to the authorities of India under the provisions of the Fugitive Offenders Act, 1881 in connection with another case, his conviction was valid under section 420, Indian Penal Code (Section 318 of the Bharatiya Nyaya Sanhita (BNS) on July 1, 2024).
In R v. Esop [(1836) 7 ER 203], a foreigner had committed an unnatural offence on an Indian ship lying in St. Katherine’s Docks. His defence that he was a foreigner and that in his country, such an act was not an offence was rejected on the grounds that the act was an offence under the Indian Penal Code and that it was committed on an Indian ship, which was Indian Territory.
A foreigner who is guilty of any offence under this Code shall be punishable under this Code if he has committed any offence in India, although the alleged offence might not have been an offence in his motherland.
In the State of Maharashtra v. Mayer Hans George (AIR 1965 SC 722), a German National left Zurich for Manila by a Swiss Plane with 34 Kilos of gold. He had not declared it in the manifest for transit. The plane arrived in Bombay. The passenger had remained in the plane. The Indian customs authorities, on search, recovered the gold carried by him on his person. He was prosecuted for importing gold into India under the Foreign Exchange Regulation Act of 1973.
Corporations
A company is liable to be persecuted and punished for criminal offences. Although earlier authorities stated that corporations can not commit crimes, the generally accepted modern rule is that a corporation may be subject to indictment and other criminal processes. However, the criminal act may be committed through its agent. However, a corporation can’t impose corporal punishments for offences which can be committed by human beings only, viz., murder, treason, perjury, etc.
‘Within India’
The expression ‘within India’ in section 1 (3) of the BNS points towards the intra-territorial jurisdiction of the Bhartiya Nyaya Sanhita. This includes the whole land territory of India, the maritime belt of India which presently extends up to twelve nautical miles in the sea, the whole air space over and the area underneath this total area. The maritime belt, which is also known as territorial waters, is measured from the appropriate baseline.
The Indian Parliament has kept itself abreast of the latest developments in international law. It has enacted the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, Section 3 (2) of which extends India's territorial waters to twelve nautical miles.
In 1977, the Exclusive Economic Zone was also extended to 200 nautical miles. If any property offence is committed within this zone, the Indian criminal jurisdiction will naturally extend to it.
High seas
High seas are open to all and represent the entire sea-space beyond the three-mile limit of the shore. This expression includes all ocean seas, bays, channels, rivers, creeks and waters below low water-mark, and where great ships could go, with the exception only of such parts of such ocean and as were within the territory of some country.
Exceptions to the Intra-Territorial Jurisdiction
Section 1 (3) of the BNS mentions “every person” within India. However, certain persons are exempted from the jurisdiction of criminal courts. These persons are given certain rights, privileges, etc. This is the same position in other countries also. Such persons are:
Foreign Sovereigns:
They are the persons completely exempted from the jurisdiction of the Indian Criminal Courts. The principle on which the exemption of every sovereign from every Court has been deduced is that the exercise of such jurisdiction would be incompatible with his real dignity. Since a sovereign is the highest authority in his nation, he is not amenable to jurisdiction in other countries. He is totally independent and represents the dignity of his country.
Ambassadors:
Certain immunities and privileges have been granted to Ambassadors of other countries by the Diplomatic Privileges Act, 1964 of England, the United Nations (Privileges and Immunities) Act, 1947 (Act No. XLV of 1947) of India, etc., are examples. Therefore, Ambassadors are exempted from the jurisdiction of the Indian Criminal Courts.
Alien Enemies:
An alien enemy is an individual who, due to permanent or temporary allegiance to a hostile power, is regarded as an enemy in wartime. In respect of acts of war, alien enemies cannot be tried by criminal courts. If an alien enemy commits a crime unconnected with war, he would be liable under the BNS.
The military persons of alien enemies do not come under the jurisdiction of ordinary Criminal Courts for the acts connected with the war. However, if they commit theft, robbery, rape, etc., unconnected with war, they shall be tried by the Indian Criminal Courts.
Warships:
The warships that entered the Indian Sea waters cannot be tried under ordinary Indian criminal courts. The Public International Law applies to such men-of-war.
President and Governors:
Article 361 of the Indian Constitution exempts the president of India and the governors of the states from the jurisdiction of the criminal courts.
Extra- territorial Jurisdiction
Sections 1(4) & 1(5) deal with the extraterritorial operation of the Code.
Section 1 (4) implies that if any Indian citizen does an act outside of India which is not an offence in that country but is in India, he will liable to be tried in India under IPC.
Section 1(4)- 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 Sanhita for any act committed beyond India in the same manner as if such act had been committed within India.
Section 1(5)- Crimes committed outside India:
When an offence is committed in some other country but the offender is found in India, then-
-He may be given up for trial in the country where the offence was committed (extradition) or;
-He may be tried in India (extra-territorial jurisdiction)
Extradition: It is the surrender by one State to another of a person desired to be dealt with for crimes of which he has been accused or convicted and which are justifiable in the Courts of the other State. Though extradition is granted in implementation of the international commitment of the State, the procedure to be followed by the courts in deciding whether extradition should be granted and on what terms is determined by the municipal law of the land. The procedure for securing extradition from India is laid down in the Extradition Act of 1962.
Admiralty Jurisdiction: Admiralty jurisdiction is the jurisdiction to try offences committed on the high seas. It is founded on the principle that a ship on the high seas is a floating island belonging to the nation whose flag she is flying.
Admiralty jurisdiction extends over-
-Offences committed on Indian ships on the high seas
-Offences committed on foreign ships in Indian territorial waters
In Enrica Lexie Case, a fishing boat registered in India, while fishing off the coast of Kerala, was fired at by a passing Italian ship named Enrica Lexie. As a result of this, 2 out of the 11 fishermen were instantaneously killed. The ship was arrested, and the Kerala Police registered an FIR. Later, the two Italian marines were arrested. They filed a writ petition before the Kerala High Court for quashing the FIR since the incident occurred at a place which was 20.5 nautical miles from the coast of India. The writ was quashed as it was held that section 2 of the IPC gave Kerala Police jurisdiction over this incident. Subsequently, the Supreme Court held that the Union of India was entitled to prosecute the accused, but the same was subject to the provisions of Article 100 of UNCLOS 1982, which provides that such cases can only be conducted at the level of the Federal/Central Government and are outside the jurisdiction of the State Governments. Hence, the State of Kerala has no jurisdiction to investigate the incident, and it is the Union of India which has jurisdiction to proceed with the investigation. Hence, the Supreme Court directed the Central Government to set up a Special Court to try this case.
Provisions Related to Extra Territorial Jurisdiction of in Criminal Procedure Code
Section 199: Offence triable where the act is done, or consequence ensues:
When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.
Section 199 of the BNSS covers:
i. Place of Inquiry or Trial: It provides that when an offence is committed, and any part of it occurs in one place while the consequences ensue in another, the offence can be inquired into or tried by a court having jurisdiction over either place.
ii. Jurisdiction: This provision ensures flexibility in determining the venue for the trial, depending on where the act occurred or where its effects were felt. This is particularly useful in cases involving multiple locations, such as crimes of conspiracy, defamation, or fraud, where the act and its consequences might not occur in the same jurisdiction.
Section 208: 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 a 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. Receipt of evidence relating to offences committed outside India.
When any offence alleged to have been committed in a territory outside India is being inquired into or tried under the provisions of Section 208, the Central Government may if it thinks fit, direct that copies of depositions made or exhibits produced before a judicial officer in or for that territory or before a diplomatic or consular representative of India in or for that territory shall be received as evidence by the Court holdings such inquiry or trial in any case in which such Court might issue a commission for taking evidence as to the matters to which such depositions exhibits relate.
Jurisdiction of Courts to Try Such Offences
Generally, the rule is that The Courts within whose jurisdiction the offender may be found will have jurisdiction in the matter. But it may not always be so.
In Empress v. Maganlal, decided in the year 1882 interpreting the word 'found', it was opined that it was used to confer the jurisdiction to the court of a place where the accused is actually found, i.e., produced before the Court and not where a person is discovered. In other words, it would mean that an accused may be discovered by the Police at a place not within the jurisdiction of the Court enquiring or trying, but that is not the place contemplated by Section 188 of CrPC (Now Section 208 BNSS). For the purpose of jurisdiction, it would be the court where he is actually produced or appears, which can be said to have found him.
In the case of Om Hemrajani v. State of U.P., the scheme underlying Section188 of CrPC (Now Section 208 BNSS) is to dispel any objection or plea of want of jurisdiction at the behest of a fugitive who has committed an offence in any other country. If such a person is found anywhere in India, the offence can be inquired into and tried by any Court that the victim may approach. The victim who has suffered at the hands of the accused in a foreign land can complain about the offence to a Court otherwise competent, which he may find convenient. The convenience is of the victim and not that of the accused. Section 188 of CrPC (Now Section 208 BNSS) does not require that the victim state in the complaint as to which place the accused may be found. It is enough to allege the accused may be found in India. The Court where the complaint may be filed and the accused either appears voluntarily pursuant to the issue of process or is brought before it involuntarily in the execution of warrants would be the competent Court within the meaning of Section 188 of the Code as that Court would find the accused before him when he appears. The finding has to be by the Court. It has neither to be by the complainant nor by the Police. The Section deems the offence to be committed within the jurisdiction of the Court where the accused may be found.
References:
- Code of Criminal Procedure, B.B.Mitra, 21st ed, Kamal Law House Kolkata, Vol 1
- R.V. Kelkar's Criminal Procedure
- Ratanlal & Dhirajlal, Commentary on The Code of Criminal Procedure, 18th enlarged Ed, Vol.1
- Ratanlal & Dhirajlal, Law of Crimes, Enlarged Edition
- Takwani, Criminal Procedure, 3rd Ed. Lexis Nexis
- The Code of Criminal Procedure, by Batuklal
- The Code of Criminal Procedure, S.N.Misra, Central Law Publication
- The Practice of Law
- Bhartiya Nyaya Sanhita, 2023
- Bhartiya Suraksha Sanhita
