20

Criminal Law: Cases and Materials

(2) any person on any ship or aircraft registered in India wherever i.

may be.
(3) any person in any place without and beyond India committing
offence targeting a computer resource located in India.!'
Esplanation-in this section
(a) the word "offence includes every act
committed outside India
which, if committed in India, would be punishable
code;
under this
(b) the expression "computer resource" shall
assigned to it in clause (k) of sub-section (1) have the meaning
of section 2 of the
information Technology Act, 2000.
Illustration
A, who is a citizen of India,
commits a
and convicted of murder in any place in murder in Uganda. He can be tried
India in which he may be found.
COMMENTARY
Section 1declares that the name of the Code shall be
will operate throughout the territory of India the Indian Penal Code' and it
except the State of Jammu and Kashmir.
It is a well-recognised principle of
criminal jurisdiction depends upon the, criminal jurisprudence that the exercise of
nationality or domicile of the offender. hus,place of the offence and not upon the
must be established that the offence for to invoke the provisions of the
which the IPC, it
within the territory of India. The territory of accused is charged was committed
of its laws, would comprise not
only
India, for
its land, its internal the purposes of application
and canals, but also that portion of sea waters, such as rivers, lakes
called the maritime ZOne. lying along its coast, which is commonly
The Maritime Zones of India Act
a
200-mile exclusive economic Zone, 1981, and a
provides for a 24-mile contiguous zone,
continental shelf up to the continental
margin or 200 nautical miles,
O nshing by toreign vessels in whichever is greater. The Act provides for regulation
1 Ins. by Act
certain maritime zones in India. It provides for
10 of 2009, s
*us. by Act 10 of 2009,51(a)(i). s 51(a)(ii), for
under this section the Explanation, Explanation, before substitution, stood a5
India
3 The
"Explanation-In
which, if
commited in India,
word "offence" includes every act committed outside
Information
computer Technology would be punishable
Act, 2000, s 2(1)(k) under this code."
4 See
Articlesystem, computer
370 of the network, data, computerstates; "computer resource means computer,
database or software.
Kashmir) Order 1950. There
Ranbir Constitution of
is a Separate India and Constitutional (application to Jammu &
5 See Penal Code, which penal code for the State of Jammu and Kashmir-the
Mobarik Ali Abmed v Statesimilar to the IPC.
of Bombay AlR
1957 SC 857, [1958] 1 SCR 328.
 Chapter 1-0ntroduction 21

penalty and prosecution in case of violations of these provisions. According to

other things of value
Article 297 of the Constitution of India, all lands, minerals andcontinental shelf and
underlying the ocean within the territorial waters or the
resources of the exclusive zone, vest in India.
within India.
Section 2 imposes criminal liability for offences committed
Section 2makes every person', irrespective of his nationality or allegiance, or his.
under the Code for an
rank, status, caste, colour oF Creed, liable to punishment
offence committed within India.
The wordsonly'every perSon' have a wider connotation in as much as the term
inudes not citizens, but even non-citizens(foreigners) and a company or an
is as much
association or body of persons whether incorporated or notZA foreignertake the plea
liable for committing an offence as a resident is. A foreigneY can neither
the çriminal nature of the act in
of ignorance of law, nor that he was unaware of criminal iability for an
question since it was not an offence in his country." The where the offence is
offence arises on the basis of the laws applicable in the country the person
committed, and not on the basis of lawsapplicable in the country ofrequired for
committing it. Even the corporeal presence of the accused is notingredients of
the
holding an accused Tiable for committing an offence, provided all offence.
10

the offence occur within the municipal territory of the country trying the
such as
However, the heads of sovereign States and their representatives, representatives,
ambassadors, high commissioners, diplomatic agents, United Nations
by viitue of Vienna Convention
are entitled to immunity against criminal prosecution Indian Parliament in 1972
on Diplomatic Relations adopted on 18th April 1961.JThe to give effect to the
passed the Diplomatjc Relations (Convention) Act 1972 ete, are exempt from
Convention of 1961,"President of India and GovernorS of States,- Constitution of India,"
criminal prosecution by virtue of cl (2) to Article 361 of the
jurisdiction would be
This is based on the principle that the exercise of criminal which such persons
incompatible with the high status and constitutional position,

6 See Indian Penal Code, s 11.

7 State ofMaharashtra v MH George AIR 1965 SCindicted722, [1965] 1SCR 123.
for committing an unnatural offence on
8 Rv Esop [1836] 7 ER 203. The accused was that the act in question was
board an Indian ship lying in St Catherine dock. The accused's plea
not an offence in the country of his origin, Baghdad, was negated.
9 Sirdar Gurdayal Singh v Raja of Faridkot [1894] AC 670(PC). 123.
10 State ofMaharashtra v MH George AIR 1965 SC 722, [1965] 1 SCR edn, pp 216-238. The Vienna
11 See JC Starke, An Introduction to International Law, sixth
diplomatic agent against criminal
Convention of Consular Relations, gives immunity toanda Immunities) of the United Nations
prosecution in England; Convention on the (Privileges immunities on United Nations and
1946 which come into force on 17 September 1946, confers
its representatives as well as on other international organisation.
12 See SK Kapoor, International Law, thirteenth edn, 2000, p 415.
13 Constitution of India 1950, Article 361(2):
President or
No criminal proceedings whatsoever shall be instituted continued against the
Governor of a State, in any Court during his term of office.
See Statham v Statham and the Gaekwar of Baroda 1912, p 92. Held, the Gaekwar of Baroda,
of sovereignity, and so could not be
being head of a princely state enjoyed all the attributes
prosecuted on a criminal charge for adultery.
22 Criminal Law: Cases and Materials

possess. All countries have universally acknowledged the immunity from crimid
prosecution to such persons. This is based on the principle that the king can do
wrong' and hence is not bound by any act of Parliament, unless he is named b
special and particular word.'
Sections 3 and 4 extend extra-territorial operation to the IPC/ Section 3 give
criminal jurisdiction to the courts to try an offence committed by a person beyogd
the territory of India, provided he is subject to the Indian law. For instance,ft
soldier in the Indian army commits amurder in Nepal while ón service, he is inbk
to be prosecuted for murder in India."The accused will be charged for the offepce
in the same manner and to the same extent as if it were committed within India.
Section 4, cd (1) extends the operation of the IPC to the offences committed bya
cituzen of India in any place without and beyond India and d (2) to offenc
committed by any person on any ship or aircraft registered in India.)
Clause (3) has been added in s 4 of the Penal Code" by the Information
Technology (Amendment) Act, 2008 with a view to make offences targeting a
computer resource located in India from abroad punishable under the Indian Penal
Code.This amendment was necessary in order to check computer related crimes etç,
committed in India by people living abroad.
The rarionale behind extension of criminal jurisdictrion of the courts, even kthe
offence is committed outside India, is based on the contention that every sovereign
State can regulate the conduct of its citizens, wherever they might be."o
Where A, an Indian with a wife and three children in India, marries an American,
IPC for
in the United States, he can be prosecuted for bigamy under s 494 of the
bigamy on his return to India.
time the offence was committed, he
If a person is not an Indian citizen at the The
cannot be tried in India for an offence committed outside and beyond India.
commission of the offence
fact that the accused acquired Indian citizenship after the
cannot confer any jurisdiction on the Indian courts retrospectively, so as to authorss
outside India at a time when he
them to try the accused for an offence committed
19
was not an Indian citizen."
to the Indian courts and the power
Section 4, d(2) gives admiralty jurisdiction" wherever
offences committed on any ship or airCraft registered in India,
to try
vo
A History of English Law, vol X, p 355: Blackstone Commentaries,
SC 1355, [1961]
14 Holdsworth, 1960
v Corpn of Calcuta AIR
pp 261-262; Director of Rationing and Distribution and
Act 1962
1SCR 158.
to the casesmentioned in the Extradition
for offences
15 The operation of the section is restricted summons or warrant
Code of Criminal Procedure 1973, s 187 (power to issue 188 (Ofenceo
Procedure 1973, s
and Code of Criminal
Committed beyond local jurisdiction) l1973).
Committed outside India of Code of Criminal Procedure
2 All218 (FB).
16 See Sarmukh Singh v Emperor (1879) ILR
17 Added by Act 10 of 2009. Bombay Z00.
18 RCNigam, Principles of Criminal Law, vol I, 1965 p 276; Morton, 9SCR697. High
[1955] 1
19 Central Bank of India Ltd vRam
Narain AlR 1955 SC 36,
as admiralcyjurisdiction.
offences committed on high seas is known
20 The jurisdicrion to try
seas have been recognised as no-man's territory.
28 Criminal Law: Cases and Materials

(ix) Ordinarily spcaking, where the court comes to the conclusion rha ,
speedy trial of an accused has been infringed, the changes or the con Per
as the case may be, shall be quashed.
() It is nither advisable nor practicable to fix any time limit for trial
offences. Any such rule is bound to be a qualified one. It is primarily for
prosecution to justify and explain the delay.
Dismissing the petition the court said, though no time limit can be fixed in crimi
cases, it is the constitutional obligation of the State to dispense speedy justice, mor
so in the field of criminal law, and the paucity of funds or resources is no defence
denial of right to justice emanating from Articles 21, 19 and 14 and the preamble e
the Constitution of India as also from the Directive Principles of State Policy as helh
in Hussainara Khatton (IV):"
The State cannot be permitted to deny the constitutional right of speedy trial to the
accused on the ground that the State has no adequate financial resources to incur the
necessary expenditure needed for improving the administrative and judicial apparatus
with the view to ensuring speedy trial. The State may be have its financial constraints
and its priorities in expenditure, but 'the lavw does not permit any
deprive its citizens of constitutional right on a plea of poverty', orGovernment to
inability. administrative
The bar of limitation have been deleted by the
grounds, viz: apex court on following two
() it amounts to judicial legislation, which is not
(ii) it runs counter to the doctrine of permissible; and
binding precedent.
Appeals
afresh.
are allowed and remitted to the High Court to be
heard and decided

Presence of the accused in India is not necessary for

is commited in prosecution, if the ottenct
India-conviction upheldSupreme Court-1957
Mobarik Ali Abmed v State of Bombay
Facts: The appellant was convicted for the offence of
s 34 of the IPC. The cheating under s 420, read with
complainant, who was
Company in Goa, contacted an agent Jaswalla to importdirector the of an export-impot
about by Jaswalla acting as the agent between the rice. contract was brougn
A
trader in Karachi, for purchasing 2,000
tons of
complainant and the appellant,
trom Karachi to Goa, and the rice at £51 per ton, to be shipP
five and a half lakhs in three complainant paid the appellant through the agen
the money was not returned. installments
The
As admitted., the rice was not
shipped a
and during the appellant argued that he was a Pakistani nationl
would give extra period of the
offence,
territorial effect to the IPC. never came to India, and to hold him liable

41 (1999) 7
42 SCCG04, AIR 1999 SC
43 Husainara 3524.
Khatton (IV)v Home Secy,
AIR 1957 SC
857, 1957 Cr LJ State of
1346, per fBihar (1980) 1SCC 98, ((1980) SCC 40 (Cri).
Jagannadhadas and Imam and Govind Menon JJ.
 Chapter 1-Introduction 29

PerJagannadhadas,J:
defined in s 415 has two essential
The offence of cheating under s 420 as
ingredients, namely:
misrepresentation to a person, and
1) deceit that is dishonest or fraudulent
(2) the inducing of that person thereby to deliver property.
though at Karachi was making
/In the present case, the appellant telegrams and telephone
representations to the complainant through letters,
talks, sometimes directly to the complainant and sometimes through Jasawalla,
shipping space and that on
chat he had ready stock of rice, that he had reserved
to ship the rice forthwith, which
receipt of money he would be in a positionentire amount.
Was never delivered even after receiving the
necessary for cheating under
On these facts, it is cdear that all the ingredients
at Bombay. In that sense the entire
s420 read with s 415 have occurred merely the consequences viz,
offence was committed at Bombay and not
ingredients of the offence.
delivery of money which was one of the
The fastening of criminal liability on a foreigner in respect of culpable acts or
attributable to him notwithstanding
omissions in India which are juridically
time, is not to give any extra
that he is corporeally present outside India at the of an offence that falls within
territorial operation to the law; for it is in respect
fastened on the person and the
the territory of India, that the liability is
awarded by the law, if his presence in India for the trial can be
punishment is
secured.
jurisdiction of a municipal court is well
That this is part of the ordinaryEngland as appears from Hasbury's Laws of
recognised in thecommon law of respect of acts outside English territory as
England.* It states the jurisdiction in
follows:
within
jurisdiction, an act may be regarded as done
For the purposes of criminal who did the act may be outside the
English territory, although the person being abroad procures an innocent act or
agent
territory; for instance, a person who, in
to commit a crime in England is deemed to commit an
office the
uses the post England, initiates an offence, part of
England. If aperson, being outside in England, he is amenable to English
essential elements of which take effect the person who has initiated such an
jurisdiction. It appears that even though subsequently comes to England.
offence is a foreigner, he can be tried if he depends on
emphasises the_ principle that cxercise of criminal jurisdiction
his occurred, and not on the nationality of the
the exact place where the offencefew specified cases such as Ambassadors,
alleged offender (except in a
Princes etc). ofences committed beyond the
territorial limits of
DcCtions 3 and 4 deal with by contrast refers to offences committed
IPC obviously and
dla ands2 of
that it is s 2 that determines the liability
be clear
nin India. It appears to have committed offences within India. The
persons who
d Punishment of
44 Volume 10, third edn, p318, para 581.
 30 Criminal Law: Cases and Materials

section asserts
categorically that 'every person' shall be liable to punishment
under the Code for every act or omission contrary to the provisions of th
Code and of which he shall be guilty within India.
This recognises the general principle of criminal jurisdiction over persons with
reference to the locality of the offence committed by them, being within India h
use of the
The use of the phrase every person' in s 2as contrasted with the ides
of the
phrase 'any person in s 3as well as s 4(2) of the Code is indicativeIndia can he
that to the extent that the guilt for an offence committed within
attributed to a person, every such person without exception is liable for
punishment under the Code. tI

comprehends all
The plain meaning of the phrase 'every person' is that it allegiance,
C

rank.
persons without exception and irrespective of nationality, exempt from
t

specially th
status, caste, colour or creed; barring such as may be
criminal proccedings or punishment there under by virtue of clause (2) to
Article 361 of the Constitution" the president of India and governors of the
4

international
States or any on the basis of some well recognised principle of
law, such as foreign sovereigns, ambasadors, diplomatic agents and so forth. S
therein that a
A reference to s 3 of the Code clearly indicates that it is implicit be punished
th
foreigner who commits an offence within India is guilty and can at the time.
as such withoutany limitation as to his corporeal presence in India
has ceased to be an Indian citizen
Even on the assumption that the appellantof the commission of the offence, he
and was a Pakistani national at the time
S

under the Indian Penal Code,

must be held_guilty and punished India at the time
notwithstanding his not being corporeally present in P
ar

4 IPCands 188 CrPC: Extra-territorial Operation of the Code-The Code m

Section foreigneroutside India.-Supremt
a
no applicationfor an offence committed by
CO
bas
Court-2008 A
Fatima Bibi Abmed Patel vState of Gujarat
SB Sinha, J: daughter-in-laws
Bibi was a citizen of Mauritius and her son and
Appellant Fatima
Kuwait. Appellant had been visiting India on visas and stayingwasin A
were residing at Patel
of the appellant Hanif Ahmad
Cr
Son
India with her relatives in Gujarat. on 22.4.2004.
married to the complainant-respondent da became strained
son and daughter-in-law
It appears that the relation between her the Chief Tudicial Magistrate, Navsan D
and a complaint petition was filed before (daughter-in-law) alleging physical a
(Gujarat) by the complainant-respondent and 506(2) IPCand 4
mental torture by her husband (first accused) under ss 498A
against the appellant that she used to instigate her son accordingly.
45 Constitution of India 1950, Article 361(2) 'No criminal proceedings whatsoever shall
instituted or continued against the P'resident, or the Governor ofa State, in any court durins
his term of office.
46 AJR 2008 SC2392, (2008) 789. Per SB Sinhaand Lokeshwar Singh J:
 31
Chapter 1-Introduction

residing at Kuwait, indisputably the entire cause of action arose

'As che couple was Judicial Magistrate took cognizance of the aforesaid
However, the Chief
Kuwait.
issuance of summons, which was confirmed by the High Court.
afence and directed court
accordingly moved the apex court. Allowing the appeal the apex
The appellant
held that: committed in Kuwait, the
offence is said to have been
In view of the fact that the Code or Criminal Procedure Code cannot be said to have
provisions of the4 India Penal
anyapplication.
language of thes 4 of the Indian Penal Code plainly means
The Court said that the commission of the offence, the person committing it istoa
that if at the time of the the offence is committed outside India, he is subject on
atizen of India, then even if India. The rule enunciated in the section is based
in
the jurisdiction of the courts the jurisdiction of the court is not lost by reason of the
citizens offence the
the principle that qua However, if at the time of the commission of the have no
enue of the offence. section
citizen of India, then the provisions of the
tcused person is not a48
applicaion whatsoever."
murder abroad an offence under s 4 of
to commit
Soliciting non-British nationalsAct 1861-UK Court ofAppeal-2007
OffencesAgainst the Person
the
RvAbu Hamza
England was convicted under
Finsbury Park Mosque in "..whoever
of the
The appellant, ImamAgainst that
the Persons Act 1861, which provides propose to any
4 of the Offences persuade, or endeavour to persuade, or shallMajesty or not,
shall solicit, encourage,other person,whether he be a subject of Her of a
person, to murder any Queen's domination or or not, shall be guilty
and whether he be within
the
public speeches soliciting non-British persons to
misdemeanour...." for making
commit murder abroad.
law fora crime committed on a foreign
is liable under English
ABritish passenger the Indian law)-CriminalAppeal-1981
ship on high seas-(similar to
Rv Kelly
may be charged with any
passenger on a foreign ship crime against
A British subject who is a ship whilst on the high seas which is a
the
crime that he commits on
English lavw.
passenger aboard a Danish ferry from
a
K, a British subject, was travelling as seas, destroyed
high Kand others damaged and
Denmark to England. Whilst on che 789.
Guiarat AIR 2008 SC 2392 at 2394, (2008) 6 SCC Agrwal
Patel v State off 1955 SC 36, [1955] 1 SCR
697; Ajay
47 Fatima Bibi Abmed Ltd v Rama Narain AIR 1901 AC 495;Andbra
lndia Leathem
48 See Central Bank of 1993 SC 1637, (1993) 3 SCC609; Quiinn v SCC 1,
IndiaAIR
Union of SC 193: Union of lndia v Pramod Gupta (2005) 12
P'radesh vL VA Dixitulu AIR 1979
AIR 2005 SC 3708.
49 (2007) 3 AllER 451.
50 (1981l] All ER 370 (CA).