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About the Author:Prof.(Dr.) Priya SepahaDirector, Law Colloquy,Author, Trainer, blogger, YoutuberJurisdiction
Jurisdiction is an aspect of state sovereignty and it refers to judicial, legislative and administrative competence. Jurisdiction may be defined as power or authority of a court to hear and determine a case, to adjudicate and 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, it is meant 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 be commenced after deciding that question.
The Indian Penal Code, 1860 is one of the most comprehensive penal code anywhere in the world. It applies all over India except in the territory of Jammu and Kashmir. However, in certain cases, IPC may have extraterritorial jurisdiction as well.
Intra- territorial Jurisdiction (Section 2)
Section 2 deals with the intra territorial jurisdiction of the Code. It makes the Code universal in its application to every person in any part of India for every act or omission contrary to the provisions of the Code.
Section 2- Punishment of offences committed within India - Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India.
‘Every Person’
Every person is made liable to punishment, without distinction of nation, rank, caste or creed, provided the offence with which he is charged has been committed in some part of India. The use of the expression ‘every person’ in this section and not ‘any person’ as in sections 3 and 4 (2) is deliberate.
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 at Bombay on the belief of which 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.
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 ground 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 have not 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 at Bombay. The passenger had remained in the plane. The Indian custom 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, 1973.
Corporations
A company is liable to be persecuted and punished for criminal offences. Although there are earlier authorities to the fact that the corporation can not commit a crime, the generally accepted modern rule is that a corporation may be subject to indictment and other criminal processes although the criminal act may be committed through its agent. However, a corporation can’t be imposed corporal punishments for the offences which can be committed by human beings only, viz., murder, treason, perjury, etc.
‘Within India’
The expression ‘within India’ in section 2 of the IPC points out towards the intra-territorial jurisdiction of the Indian Penal Code. 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 with the latest development in the field of international law and has enacted the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 Section 3 (2) of which has extended the territorial waters of India to twelve nautical miles.
In 1977 the Exclusive Economic Zone has also been extended to two hundred nautical miles. If any offence relating to the property 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 miles 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 2 of the IPC mentions “every person” within India. However, there are certain persons 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 of his nation, he is not amenable to the jurisdiction of 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 IPC.
The military persons of alien enemies do not come under the jurisdiction of ordinary Criminal Courts, for the acts done connecting 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 entered into the Indian Sea waters cannot be tried under the ordinary Indian Criminal Courts. The Public International Law applies to such men-of-war.
President and Governors:
The President of India and the Governors of the States are exempted from the jurisdiction of the Criminal Courts, by Article 361 of the Indian Constitution.
Extra- territorial Jurisdiction
Section 3 and 4 deal with the extraterritorial operation of the Code.
Section 3 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 3- 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 Code for any act committed beyond India in the same manner as if such act had been committed within India.
Section 4- 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 sand on what terms is determined by the municipal law of the land. The procedure for securing the extradition from India is laid down in the Extradition Act, 1962.
Admiralty Jurisdiction: The jurisdiction to try offences committed on the high seas is known as admiralty jurisdiction. 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 from 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 an FIR was registered by the Kerala Police. Later the two Italian marines were also arrested. They filed a writ petition before 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, 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 into 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 179: Offence triable where 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 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. 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 188, 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 Section188. 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 in Om Hemrajani v. State of U.P., the scheme underlying Section188 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 may be approached by the victim. The victim who has suffered at the hands of the accused on 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. It is not the requirement of Section188 that the victim shall 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 issue of process or is brought before it involuntarily in 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:
- 1) Code of Criminal Procedure, B.B.Mitra, 21st ed, Kamal Law House Kolkata, Vol 1
- 2) R.V. Kelkar's Criminal Procedure
- 3) Ratanlal & Dhirajlal, Commentary on The Code of Criminal Procedure, 18th enlarged Ed, Vol.1
- 4) Ratanlal & Dhirajlal, Law of Crimes, Enlarged Edition
- 5) Takwani, Criminal Procedure, 3rd Ed. Lexis Nexis
- 6) The Code of Criminal Procedure, by Batuklal
- 7) The Code of Criminal Procedure, S.N.Misra, Central law Publication
- 8) The Practice of Law