Introduction

Jurisdiction can be defined as the limit within which the Court of law can exercise its powers concerning suits, appeals, actions, proceedings, etc.

In the case of Hriday Nath Roy v. Ram Chandra[i], the Calcutta High Court observed that ‘An examination of the cases in the books discloses numerous attempts to define the term ‘jurisdiction’, which has been stated to be ‘the power to hear and determine issues of law and fact;’ ‘the authority by which three judicial officers take cognizance of and decide cause;’ ‘the authority to hear and decide a legal controversy;’ ‘the power to hear and determine the subject-matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them;’ ‘the power to hear, determine and pronounce judgment on the issues before the Court;’ ‘the power or authority which is conferred upon a Court by the Legislature to hear and determine causes between parties and to carry the judgments into effect;’ ‘the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into execution.’

The above-mentioned judgement has been a landmark precedent concerning proceedings or suits regarding jurisdiction.

Under Indian Law, there are 5 types of jurisdiction:

1. Subject-matter Jurisdiction – This type places a limit on Courts to exercise their powers over a particular type of case or a particular subject matter. 
2. Territorial Jurisdiction – This type places a limit on Courts to exercise their powers within a territorial limit.
3. Pecuniary Jurisdiction – This type deals with limitation of Courts regarding the monetary value or cost of suits or cases.
4. Original Jurisdiction – This type allows Courts to hear new cases that have been initiated.
5. Appellate Jurisdiction – This type allows Courts to re-hear or review judgments given by lower courts.

Apart from these 5 main jurisdictions, other types of jurisdictions include concurrent jurisdiction, admiralty jurisdiction, probate jurisdiction and summary jurisdiction.

Later in this article, admiralty jurisdiction shall be explained concerning extra-territorial jurisdiction.

The main focus of this article lies on territorial jurisdiction granted under the Indian Penal Code, 1860.

Brief Background

Section 1 of the Indian Penal Code (IPC)[ii] states that the Code would apply to the whole of India. With the 2019 Judgment of the Supreme Court regarding Article 370 of the Indian Constitution[iii], the IPC would also apply to the state of Jammu and Kashmir.

However, the IPC does not mention that it would apply only to citizens of India. This is interesting to note as other Acts and legal provisions state otherwise. Sections 2, 3 and 4 of the IPC lay down the provisions for intra-territorial and extra-territorial jurisdiction of the IPC.

However, the IPC is not the only legal provision that deals with this. The Code of Criminal Procedure, (CrPC) and the Informational Technology Act, 2000 (IT Act) also lays down provisions of their extra-territorial jurisdiction.

Under the IPC, intra-territorial jurisdictions deal with crimes and offences committed by anyone within the territory of India. Therefore, anyone who commits a crime within the territory of India as mentioned under Article 1 of the Indian Constitution[iv] will be liable for punishment under the IPC.

Extra-territorial jurisdiction refers to any offence committed by a citizen of India or by any person on a ship or aircraft registered in India or by any person who targets a computer resource located in India, beyond the territories of India. Therefore, any person as mentioned above commits a crime outside India, shall be liable for punishment in India as per the IPC.

In simple words, the IPC lays down provisions for offences committed within and beyond the territories of India and makes such persons liable for punishment as per the IPC.

Provisions under the Indian Penal Code, 1860

As mentioned above, the Indian Penal Code, 1860 places an intra-territorial as well as extraterritorial jurisdiction for offences committed under the IPC.

Section 2 deals with intra-territorial jurisdiction while Sections 3 and 4 deal with extra-territorial jurisdiction.

Intra-Territorial Jurisdiction

Section 2 of the IPC[v] states that “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.”

In essence, these are the following essentials of Section 2 of the IPC:

• An offence must be committed by any person. This means that it is not necessary for the person to be a citizen of India. As long as a person is within the territories of the Indian subcontinent, they shall be liable under this Code.
• The person will be liable only under this Code and not otherwise. This means that intra-territorial jurisdiction under this Code only applies to offences committed under the IPC and does not hold persons liable for offences committed under other Indian laws.
• The person should have committed some act or omission as per the provisions of this Code. This is in connection with the previous essential that only for acts or omissions committed under the IPC, the person shall be liable.
• The person will be guilty of the offences committed within India. They will only be held accountable in India for their actions or omissions that were committed in India as per the IPC.

The two main aspects of this Section are:

• Every wrongdoer is liable for punishment under this Code, irrespective of caste, creed, nationality or rank, as long as the offence is committed within the territory of India.
• A foreigner is also liable for punishment under this Code if he commits any act or omission within the territory of India, irrespective of whether the act or omission is an offence in their native country.

In the landmark case of R v. Esop[vi], the accused was charged for the unnatural offence that he committed in India and he defended himself with the fact that he was not a native of India but of Baghdad, where the action did not amount to an offence. However, the Court rejected this defence and convicted him for an unnatural offence.

In another case of State of Maharashtra v. M.H. George[vii], a German national was travelling to Manila with 34kg of gold, which he failed to declare in the manifest for transit. The plan arrived in Bombay and the Indian Customs on search recovered the gold and prosecuted him under the Foreign Exchange Regulation Act. The Supreme Court of India held that, even though the man remained on the plan, he cannot be exempted from conviction on the plea of ignorance of the law and convicted him under the said Act.

The term ‘territory of India’ includes two types of territories:

1. Geographical territory – Article 1 of the Indian Constitution states that the territory of India includes the territories of the States, the union territories specified in the First Schedule and such other territories as may be acquired.
2. Maritime Territory – An area of 12 nautical miles calculated from the appropriate baseline is known as territorial waters and marks the maritime territory of India. Territorial waters are regarded as the Sovereign territory of the State. For example, if an offence is committed within 12 nautical miles in the sea from the coast of Mumbai, then the appropriate Court of Mumbai would have jurisdiction over this matter.

The following picture would give a better understanding of the maritime territory of India.

In the case of Emperor v. Kastya Rama[viii], the accused sailed into the sea within 3 miles off the coast and removed the number of fishing stakes that belonged to the plaintiff. The Bombay High Court held that the local Criminal Court had jurisdiction over this issue and convicted the accused of mischief.

Persons Exempted from Indian Penal Code, 1860

The Indian Penal Code exempts certain officers and persons of rank from liability under the Code.

1. Presidents and Governors – The Presidents of countries and Governors of states are exempted from the jurisdiction of Criminal Courts as per Article 361 of the Constitution of India[ix].
2. Foreign Sovereigns – Foreign Sovereigns are exempted from this Code, as they are said to absolute independent authorities and an exercise of criminal jurisdiction on them would be incompatible with their dignity.
3. Ambassadors and Diplomats – An Ambassador of a country is the representative of a Foreign Sovereign and enjoys the same immunity as that of the Sovereign. Ambassadors and Diplomats are provided immunity under the United Nations (Privileges and Immunities) Act, 1947 and the Diplomatic Relations (Vienna Convention) Act, 1972.  
4. Alien Enemies – For any act committed in respect of war, Alien Enemies would not be liable under the IPC and for them, Martial Law would be applicable. However, Alien Enemies would be liable for offences committed under the IPC that are not in relation to war, such as theft or robbery.
5. Foreign Army – Foreign Army personnel who have entered the territory of India with the permission of the Government of India would be exempted from the jurisdiction of criminal courts.
6. Warships – Warships of a State enjoy immunity from criminal liability on the territory of another country on the ground that it is the property of a Sovereign, and not subject to the legal process of another country.

Extra-Territorial Jurisdiction

Section 3 of the Indian Penal Code[x] states that “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.”

The following are the essentials of this Section:

• A person must be liable under Indian law. Therefore, a citizen of India or any foreigner who is bound under Indian law is bound by Section 3 of the IPC.
• The offence must be committed beyond the territory of India, either geographical or marine.
• Such persons shall be bound by Indian law for any offence committed outside India, as though the offence was committed within India.

In the case of Mobarak Ali v. The State of Bombay[xi], a Pakistani national made false representations from Karachi to a man in Bombay on the pretext that he had a stock of rice and on receipt of money, he would ship the rice. However, no shipment was made after the complainant paid the amount. On arrest, the accused claimed that he was in Pakistan at the time of the offence and therefore, he cannot be held liable for his actions. The Court held that though the offence was committed in Bombay and that he was not present in Bombay at the time of the commission of the offence, he would still be held liable.

Section 4 of the Indian Penal Code[xii] states that “The provisions of this Code apply also to any offence committed by—

(1) any citizen of India in any place without and beyond India;

(2) any person on any ship or aircraft registered in India wherever it may be;

(3) any person in any place without and beyond India committing offence targeting a computer resource located in India.

Explanation.—In this section—

(a) the word “offence” includes every act committed outside India which, if committed in India, would be punishable under this Code;

(b) the expression “computer resource” shall have the meaning assigned to it in clause (k) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000).”

Section 4 lays down the persons who shall be liable under extra-territorial jurisdiction of Criminal Courts. Such persons include:

1. Any citizen of India, who may be within or outside the territory of India.

In the case of Remia v. Sub-Inspector of Police[xiii], the accused, an Indian citizen, murdered another Indian citizen in Sharjah, UAE. After the Police refused to file an FIR as they believed to not have jurisdiction over the case, the Court directed the Police to file an FIR.

2. Any person, citizen or foreigner, on a ship or aircraft within or outside the territory of India that is registered in India.

Such jurisdiction can be exercised in the following cases:

·       When the offence is committed on an Indian ship.

·       When the offence is committed on a foreign ship in Indian territorial waters.

·       When the offence amounts to piracy jure gentium which consists of any illegal act of violence, detention or depredation committed for private needs, by persons onboard a private ship or private aircraft, and which is directed against a ship or persons or property on the high seas. Admiralty jurisdiction shall apply in such cases.

·       When the offence is committed in an aircraft, registered in India, wherever it is located.

3. Any person, citizen or foreigner, who may be within or outside the territory of India, who targets a computer resource[xiv] in India.

This provision was included by the Information Technology (Amendment) Act in 2008.

Admiralty Jurisdiction

Admiralty Jurisdiction is the jurisdiction which confers the power on Courts to try offences which are committed on high seas. This type of jurisdiction was introduced by various statutes such as the Admiralty Offences Act, 1849, Colonial Courts of Admiralty Act 1890 with the Indian Colonial Courts of Admiralty Act 1891, and the Merchant Shipping Act, 1894.

The principle behind this jurisdiction is the notion that a ship which floats on the high seas is like a floating island. Admiralty jurisdiction can be exercised in the following cases:

• Offences which are committed on Indian ships on high seas.
• Offences which are committed on foreign ships within Indian territorial waters.

In the landmark case of the Republic of Italy through Ambassador v. Union of India[xv], two Indian fishermen were killed off the coast of Kerala aboard the St. Antony, after they were fired upon by Italian marines on board the Italian ship, Enrica Lexie. The incident occurred at 20.5 Nautical Miles off the Indian Coast, within the contiguous zone area of India’s Exclusive Economic Zone. Indian Coast Guard got hold of Enrica Lexie near the Lakshadweep Islands and compelled it to proceed to Kochi. Subsequently, two Italian Marines were arrested and charged for the offence of murder.

Italy challenged the arrest before the Court alleging that India has no jurisdiction to try the case at the very first instance, as the incident did not happen on the territorial waters of India but on international waters. Italy cited Article 97 of the United Nations Convention on the Law of the Sea (UNCLOS)[xvi], which stated that “In the event of a collision or any other incident of navigation concerning a ship on the high seas, only the flag state of that ship can launch penal proceedings”.

However, India based its jurisdictional claims on domestic legislation, which confers jurisdiction upon Indian Courts to try any person, citizen, or foreigner, in respect of an offence committed on board a ship registered in India. The Court held that as per the notice by the Indian Government issued in pursuant of the Convention on the Law of the Sea, India has jurisdiction, and thus, the case can be triable in India. The Court also held that only the Indian Government and not the Kerala Government can exercise this jurisdiction.

Code of Criminal Procedure, 1973

Section 188 of the CrPC[xvii] states that “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 found :

Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.”

This Section is in connection with Section 4 of the IPC with respect to extra-territorial jurisdiction. However, there is one addition that needs to be pointed out in Section 188.

It states that prior permission or sanction of the Central Government is needed in order to inquire or try a person for an offence committed by them outside the territory of India.

In the case of Samaruddin v. Assistant Director of Enforcement[xviii], the Court held that Indian courts do not have authority to try any offence committed outside the territory of India without the prior of the Central Government.  

Informational Technology Act, 2000

Section 75 of the IT Act states that “Act to apply for an offence or contravention committed outside India – (1) Subject to the provisions of sub-section (2), the provisions of this Act shall apply also to any offence or contravention committed outside India by any person irrespective of his nationality.

(2) For the purposes of subsection (1), this Act shall apply to an offence or contravention committed outside India by any person if the act or conduct constituting the offence or contravention involves a computer, computer system or computer network located in India.”

This section mentions that the IT Act will apply to any persons who commit any offence or contravention outside the territory of India. It explicitly mentions that it will apply to any person, irrespective of their nationality.

Sub-section (2) states that this Act will apply to offences or contraventions that involve a computer, computer system or computer network located in India.

This Section must be read along with Section 4(3) of the IPC.

In the case of R v. Governor of Brixton Prison & Anr.[xix], Citibank faced the wrath of a hacker on their cash management system which resulted in the illegal transfer of funds of customers into the account of the hacker, who was later identified as Vladimir Levin and his accomplices. After his arrest, Levin was extradited to the USA.

The issue of jurisdiction and the place of origin of the cybercrime was raised in this case.

The Court convicted Levin and held that the nature of communication between Levin and Citibank meant that Levin’s moves were actually occurring on Citibank’s computer system.

Analysis

Section 2 of the IPC states that any person who commits any act or omission contrary to the provisions given under the Code would be punished only according to the provisions of the IPC. This provision was included in the Code at a time when India had various laws in force which were difficult to regulate. In today’s time, when those laws have been repealed, having such a provision has become redundant.

As mentioned before, there are two main types of intra-territorial jurisdiction, namely, geographical and maritime jurisdiction. However, there is no specific provision that states whether maritime territories would be included within the territory of India or beyond the territory of India. Section 18 of the Code provides that territory of India includes the whole of India, except the state of Jammu and Kashmir. However, it does not specify as to whether territorial waters would be included within this ambit. Although Courts have decided otherwise, a formal provision is needed so as to understand the scope of intra-territorial jurisdiction as well as extra-territorial jurisdiction.

Section 4 of the Code applies to offences committed by citizens of India beyond the territory of India. However, it is necessary that this is made applicable to aliens who render services to the State Government or the Central Government.

With technological advancements and the increasing rates of cybercrimes, it is necessary that the extra-territorial jurisdiction extends to cybercrimes, committed within or beyond the territory of India.

Conclusion

Jurisdiction is referred to as the limits within which Courts can exercise their powers over cases. With respect to the Indian Criminal Courts, there are two basic types of territorial jurisdiction: intra-territorial jurisdiction and extra-territorial jurisdiction.

Intra-territorial jurisdiction deals with crimes committed within the territory of India, while extra-territorial jurisdiction deals with crimes committed beyond the territory of India. The Criminal Courts can exercise their powers within these jurisdictions only.

While various cases have come up regarding jurisdiction of Criminal Courts, the laws, as well as Courts, have provided clear provisions for the same. However, these provisions have not included every aspect of jurisdiction and there still exists confusion within the system regarding this.

It is necessary for improvements of these laws in order to ensure that citizens of India, as well as foreign nationals, are held liable for offences committed within the scope of the IPC.

Suggestions

As mentioned above, it is necessary that the Indian Legislature makes some changes to the Indian Penal Code with regards to territorial jurisdiction.

Firstly, it is desirable to remove the provision that whoever commits an offence within the territory of India, shall be punished under the IPC. This can be confusing in today’s time when other legal provisions provide for punishment in relation to certain offences.

Secondly, there must be a clear provision as to whether the Indian territory also includes maritime territory and there must not lie a discretion on Courts to decide such matters, as has happened in the past.

There must be an inclusion of aliens who render services to the State Government as well the Central Government within the ambit of Section 4(1) of the Indian Penal Code.

Cybercrimes must also be included within the ambit of territorial jurisdiction so as to hold those who commit such crimes outside of India, as per the Indian Penal Code.

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[i] Hriday Nath Roy v. Ram Chandra, AIR 1921 Cal 34.

[ii] Sec. 1, Indian Penal Code, 1860.

[iii] Art. 370, Constitution of India.

[iv] Art. 1, Constitution of India.

[v] Sec. 2, Indian Penal Code, 1860.

[vi] R. Esop, (1836) 173 E.R. 203.

[vii] State of Maharashtra v. M. H. George, AIR 1965 SC 722.

[viii] Emperor v. Kastya Rama, (1871) 8 Bom H.C.R. 63.

[ix] Art. 361, Constitution of India.

[x] Sec. 3, Indian Penal Code, 1860.

[xi] Mobarak Ali Ahmed v. The State of Bombay, AIR 1957 SC 857.

[xii] Sec. 4, Indian Penal Code, 1860.

[xiii] Remia v. Sub-Inspector of Police, 1993 CrLJ 1098.

[xiv] Sec. 2(1)(k), Information Technology Act, 2000.

[xv] The Republic of Italy through Ambassador v. Union of India, (2013) 4 SCC 721.

[xvi] Art. 97, United Nations Convention on the Law of the Sea.

[xvii] Sec. 188, Code of Criminal Procedure, 1973.

[xviii] Samaruddin v. Assistant Director of Enforcement, 1999 (2) KLT 794; 2009 (1) KLT 943.

[xix] R v. Governor of Brixton Prison & Anr., [1969] 2 QB 222.