Jurisdiction

The Indian Penal Code, 1860 applies all over India expect in the territory of Jammu and Kashmir. However, in certain cases, IPC may have extra territorial 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. 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 company is also liable to be prosecuted and punished for criminal offences. However, the following persons are exempted from the jurisdiction of the criminal Courts:

  1. Foreign sovereigns- 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.
  2. Diplomats
  3. Alien enemies- 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.
  4. Foreign army- When armies of one State are by consent on the soil of a foreign State they are exempted from the jurisdiction of the State on whose soil they are.
  5. Warships- Men of war of a State in foreign waters are exempted from the jurisdiction of the State within whose territorial jurisdiction they are.
  6. President and Governors- Under Article 361 of the Indian Constitution, the President and Governors are exempted from the jurisdiction of Courts.

Extra- territorial Jurisdiction

Section 3 and 4 deal with the extra territorial operation of the Code.

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 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.

Crimes committed outside India – Section 4

When an offence is committed in some other country but the offender is found in India, then

  1. He may be given up for trial in the country where the offence was committed (extradition) or;
  2. 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.

Extra-territorial Jurisdiction: Indian Courts are empowered to try offences committed out of India on

  1. Land: Under the Sections 3 and 4 of the Indian Penal Code and Section 188 of the Criminal Procedure Code, local Courts can take cognizance of offences committed beyond the territories of India. This can be done when any Indian citizen does an act outside of India which is not an offence in that country but is in India. Section 188 of CrPC also provides that when an offence is committed outside India-
  2. By any citizen of India, whether on high seas or elsewhere
  3. By any person not being such citizen on any ship or aircraft registered in India,

he may be dealt as if the offence was committed in India at the place where he was found.

  1. 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-

  1. Offences committed on Indian ships on the high seas
  2. Offences committed on foreign ships in Indian territorial waters
  3. Piracy

Enrica Lexie Case[1] : 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, Supreme Court directed the Central Government to set up a Special Court to try this case.

[1] Massimilano Lattore and Others v Union of India, 2012 (2) KLD 649.

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