A Critical Analysis of Territorial Jurisdiction under Indian Penal Code, 1860

I. Introduction

Studying the facts which are available and after analysis reaching new conclusions and contributing to the existing field in known as research and this is a systematic study. Legal research is very necessary to solve the current legal issues and it helps to find apt solutions for them. One can get the best results by the resorting to the method of scientific study. This research conveys “the critical analysis of the territorial jurisdiction under Indian Penal Code”. The place of the offence becomes very important to punish the offender. The presents the critical analysis of the Indian laws on the territorial jurisdiction for criminal offences. Both the word territory and jurisdiction mean different where jurisdiction is the power of the authority to exercise control over it legally and territory is that region where this authority is exercised by the sovereign state. Every human society be it Harappa civilization, Egyptian civilization, Mesopotamian civilization, Romans, Arabs all of them had the vast area and exercised control over it with laws and laid rules and regulations as well as offenders were punished with harsh punishment like death penalty, they were publicly executed etc but now this type of barbaric punishment is less but the punishment exists but the problem comes in the jurisdiction to be exercised. It is very easy to analyze the jurisdiction when an Indian citizen commits crime in India but the real problem arises when the foreigner commits the crime. There is also the problem that some nations believe that death penalty is barbaric and the society is developed and it should be abolished but in India the death penalty is still awarded, if a murder is committed by a foreigner on Indian soil then the highest penalty is death penalty even if the case falls in the rarest of the rare case category but some nations oppose this, now there arises the problem of punishment, the victims if that penalty stipulated in the statute is not given may feel as there is injustice to them on the other hand the offender’s human rights would be violated. Hence this paper critically analyses the problem of territorial jurisdiction under IPC and other laws made in this regard.

Research questions:

After considering the background of the current topic these research questions can be framed:

1. Whether Indian law would be applicable in International waters?

2. Whether IPC would be applicable for the offences committed outside India but whose effect is seen in India?

Research objectives:

The research aims to put forth what are the laws relating to territorial jurisdiction under IPC and also different Acts made in that regard. Hence forth the following are the research objectives:

1. To understand the scope of IPC relating to territorial jurisdiction.

2. To examine whether the current laws are sufficient for an effective administration of Indian laws in the International waters and the waters which fall in the territory of India?

3. To identify what are the problems relating to territorial jurisdiction under Indian laws and to find out what are all the different problems which have been solved the legislature in IPC and other legislations in that regard.

Scope of the research study:

This research aims to critically analyze the concept of territorial jurisdiction under the Indian Penal Code. The study also aims to identify the problems with territorial jurisdiction and also tries to solve the problem. Thus the research is about applying the laws, treaties, convention, case laws and trying to critically analyze what are the loop holes in the IPC and also to check what is the position of India relating to territorial jurisdiction when the offence is committed in India and outside India and check how the offender is penalized as per the Indian laws in consonance with the International laws. The scope of this research is within Indian context because it is mainly concerned with the analysis of territorial jurisdiction under IPC also some international matters have been taken into account for an effective study.

Research methodology:

The current research is based on doctrinal legal research. The researcher considers this method apt because it is finding a law to a concerned topic then analyzing it, and finally making logical reasoning. Existing statutory provisions are analyzed in doctrinal legal research also by including the case laws. As the topic is concerned with the critical analysis of the territorial jurisdiction under IPC this is an apt methodology. Researcher also uses the descriptive research because it is considered with describing the law and by using analytical research analyzing to solve the problem by critically analyzing it. By not restricting to the above methodology alone the researcher has also used the primary sources such as journal articles, Acts etc, secondary sources of research such as the books, articles, websites etc, tertiary sources such as dictionary, textbooks because these also help to critically analyze the law.

Literature review:

The researcher has done all the background check of the sources and the articles, books, research papers, websites etc sources do not directly explain the topic but the researcher has used the analytical skills and had to form conclusion with the help of them. This literature review shows that there are no direct sources on the current topic of the research. The Indian Penal Code, The Territorial Waters, Continental Shelf, Exclusive Economic Zone & Other Maritime Zone Act of 1976, Maritime Zones of India Act, 1981, Constitution of India were the crucial sources for this research. The researcher also referred to various research papers such as the concept of jurisdiction under IPC, 1860, India’s Maritime Jurisdiction. It was necessary for the researcher to study the text books on IPC to form an analysis which are cited in the paper, videos on YouTube, and articles in the websites. To know more about the International law on the topic of territorial jurisdiction the researcher referred to United Nation Convention on the Law of the Sea, 1982. The existing sources do not present the analysis of the territorial jurisdiction under IPC but they go on with the descriptive presentation of the Act hence this research.

II. Territorial jurisdiction and its significance

Jurisdiction as defined by the black law dictionary is any government’s authority, which is legally recognized, to extent control over the land and the things which come under its territory². Both the word territory and jurisdiction mean different where jurisdiction is the power of the authority to exercise control over it legally³ and territory is that region where this authority is exercised by the sovereign⁴. The concept of territory and jurisdiction exists in the human society from ancient times. For example one of the characteristics of the civilization is to have a territory and to administer it, the ancient Rome which had the vast territory spread across from Mediterranean Basin to the parts of the Great Britain to the Black sea in the east⁵ had the various methods to administer the vast territory like political officers, military and other social and political structures⁶. One very fundamental thing to notice in the preceding example is that everything is governed by law, there is some imposition. This very concept is in prevalence today but its modified. Whatever the law was, was imposed by some authority. Today that authority in most of the country is a Constitution under which various laws are enacted and so is the Indian Penal Code, 1860 adopted by India after Independence after amending it. The main objective of the Indian Penal Code is to provide a Penal Code for India⁷. The word Penal has its origin from Latin word poena which means pain and penalty for crimes⁸. As there are more than 195 countries in the world⁹, each one of them has the different set of laws and one country cannot punish the person for his/her criminal Act by infringing in their territory and hence a territory is defined under the laws which demarcates the territory where the law applies, so Indian Penal Code from Ss.1-5 speaks about the title, extent, operation and jurisdiction of IPC. The territorial jurisdiction is classified into intra-territorial jurisdiction and extra-territorial jurisdiction. States also have the territorial sea and airspace included in the territory of a particular state. Within this legally delimited base the legal competence of the rules, laws exist¹⁰.

III. Territorial jurisdiction under IPC:

S.1 speaks about the title and extent of operation of IPC “IPC extends to the whole of India”¹¹ after the Jammu and Kashmir Reorganization Act, 2019. Well now the question arises what is the meaning of whole of India and is it defined anywhere? Yes in the Constitution of India, Article 1 which speaks about Name and territory of the Union, in 1(3) The territory of India shall comprise – (a) the territory of the states (b) the Union Territories specified in the 1^st schedule (c) such other territories as may be acquired¹².

S.2 is about the punishment of offences committed within India. Which says that “every person, whether a citizen or not shall be liable to punishment under IPC for every act or omission of him/her contrary to the provisions of the IPC of which the person shall be guilty within India”¹³. In the case of Mobarik Ali Ahmed v. The State of Bombay, AIR 1957 SC 857, SC dismissed the criminal appeal of the appellant praying that he should not be held liable because he was not present on the Indian soil while the crime was committed and hence he should get immunity but the SC said the argument of the appellant regarding the absence of him on the Indian soil is of no importance because corporeal presence doesn’t vitiate or bar the person from being tried in the penal proceedings as per S.2 of IPC hence a foreign national would not be entitled to get the immunity of acquittal and shall be liable for his/her every act and offence as per IPC. The court also in the same case said that “Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect, if the State should succeed in getting him within its power”¹⁴. S.2 of IPC asserts on the locality of the crime where it is committed. The territory of India for the exercise of law also includes its maritime territory, aircrafts, ships (floating islands) whether armed or unarmed (registered in India), private ships of India’s subjects when they are on high sea and also the foreign ships when they are in India’s ports¹⁵. The ships and aircrafts are included in the territory of a state because it is based on the principle of cujus est solum ejus usque ad collum et ad in fero, which means that the owner of the soil, is his till skies and to the centre of the earth¹⁶. The air which is resting on the territory of a state also comes under the territory of a state¹⁷. As per The Territorial Waters, Continental Shelf, Exclusive Economic Zone & Other Maritime Zone Act of 1976, S. 3(1) says that the sovereignty of India extends to the territorial waters of India to the sea bed and soil underlying it and also the airspace over such water¹⁸. As per S.3(2) of the aforementioned Act the extent of territorial waters of India is to the extent of 12 nautical miles from the nearest point of the appropriate baseline¹⁹. There is a zone called contiguous zone which is adjacent to the territorial water and extends to every point from the nearest point of the baseline to 24 nautical miles according to S.5(1) of the aforementioned Act. Then comes the continental shelf which includes the “seabed and subsoil of the submarine areas that extends beyond the limit of its territorial waters throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of two hundred nautical miles from the baseline where the outer edge of the continental margin does not extend up to that distance”²⁰. In this area of continental shelf India has the sovereign rights for the purpose of exploration, exploitation, conservation, management of the shelf²¹, scientific research²², protect marine environment and prevent marine pollution²³, make provisions related to customs and fiscal matters²⁴, power to regulate entry of ships and aircrafts²⁵. Now comes the Exclusive Economic Zone popularly known as EEZ, which extends up to 200 nautical miles from the nearest point of the baseline mentioned in S.3(2) of the aforementioned Act²⁶. In EEZ India has the rights to produce energy, management of natural resources, exploitation, exploration and conservation of natural resources, artificial islands, scientific research, protect marine environment etc²⁷. Here in EEZ an Indian citizen can fish with license. As per plain reading of the above mentioned Act Both EEZ and Continental shelf overlap i.e., 200 nautical miles but that is not so. Continental shelf includes only seabed and subsoil but EEZ has the water column and also the continental shelf may extend beyond this range depending on the geography²⁸. There is a famous case called as the Italian Marines case, 2 Italian Marines who were on board of MV Enrica Lexie which was off the coast of Kerala, which was about to travel from Singapore to Egypt on 15/2/2012, 2 marines shot 2 Indian fishermen who were aboard an Indian vessel named St.Anthony. This incident took place 20.5 nautical miles away from the baseline of India²⁹. This falls within the contiguous zone of India and this zone is a hot pursuit area. According to UNCLOS a state can enforce its laws in contiguous zone in 4 specific areas those are customs, taxation, immigration and pollution. Contiguous zone is a hot pursuit area. UNCLOS is silent on whether the Indian Penal Code would be applicable in the contiguous zone. The reason given by the marines behind killing those 2 Indian fishermen was that they assumed both of them to be pirates in the International waters. At that time when the incident took place piracy was very high in that area. 65°E to 78°E longitudinal marking was marked as high risk area in the Arabian sea by International Marine Organization. The name of 2 marines was Salvatore Girone and Massimiliano Latorre. Both of them were detained in India and this detention and the later arrest of both of them sparked off a conflict between the Government of India and Italy over opinions on legal jurisdictions and functional immunity between both the nations. In 2013 both of the marines were allowed to return to Italy. After they entered Italy, Italian Government said both of them will return provided they will not get death penalty. Marines returned and stayed in New Delhi Italian embassy. Marines were not formally charged for 2-4 years. In the year 2014 NIA framed charges of murder but later reduced the charges to violence. Italy approached International Tribunal for the Law of the Sea and Arbitral tribunal (constituted in accordance with annexure 7 of UNCLOS) as per dispute resolution mechanisms laid down in UNCLOS. On 21/5/2020 after 5 years at the Permanent Court of Arbitration with 4:1 ruling³⁰. PCA delivered the judgement, said India does not have the jurisdiction to try the Italian Marines and hence they both should have the functional immunity. As the incident took place in contiguous zone and not in territorial waters of India as well as both the marines were engaged in the mission on behalf of the Government of Italy further criminal investigation would be continued in Italy hence India to cease its investigation on the marines. PCA also said that Marines have breached the India’s freedom of navigation under UNCLOS Art.87(1)(a) and 90 but Italy will punish them for this breach and not India. Italian Government was ordered to pay compensation for the loss of life, physical harm etc caused to the St.Antony and crew members. By this award by the PCA it can be inferred that Indian fishermen are not safe in the Contiguous zone or EEZ because the Italian Marines Case can be used as a reference by other people and try to avoid punishment under Indian laws. It might happen that some random ship might enter the EEZ of India and kill an Indian citizen. This is a very problematic situation because Indian citizens are not safe hence there needs to be an amendment in UNCLOS that a country’s penal laws should also be made applicable in above mentioned zones. Otherwise there needs to be a new law made specifically for the purpose of penalizing people when they go to International waters and commit a crime³¹.

S.3 is about the “punishment of offences which are committed beyond India but those offences by law may be tried within, India”. It says 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 IPC for any act committed beyond India in the same manner as if such act had been committed within India”³². There are 2 conditions of S.3 which need to be fulfilled in order to be applicable. One is that the person should be charged with an offence which is an offence in India and the second is that the person should be triable under some Indian law to be tried in India. S.4 of IPC is an extension of S.3 of IPC³³.

S.4 speaks about the extension of IPC to extra territorial offences and says that the “provisions of IPC applies to offences committed by any Indian citizen in any place without and beyond India, applies to any person on any ship or aircraft registered in India wherever it may be, applies to any person without and beyond India committing offences targeting a computer resource located in India. There is an explanation attached to S.4 of IPC and it says that the word offence will include every act which is committed outside the boundary of India which if committed in India would be punishable under IPC, the expression computer resource used in the S.4(3) shall have the meaning assigned in S.2(1)(k) of IT Act 2000³⁴.”

Both the S.3 and 4 of IPC speaks about the extension of IPC to extra territorial offences which implies that a person may be tried or punished in India when the offence is committed outside India. One important thing to notice is that the person who is going to be tried for an offence committed outside India, the crime which the person commits must be an offence or subjected to the Indian Law. For example if the Indian citizen commits adultery which is not an offence in India, will not be punished in India. If the act is an offence in India then the person would be held liable as if the person has committed the offence in India itself in the same manner. By the application of S.3 of IPC persons who are covered by special law are also covered under Indian jurisdiction³⁵. The reason behind the extension of the code even if the crime is committed outside India because state regulates the conduct of its citizens³⁶. The word used in the S.4(1) is Indian citizen who commits an offence must be an Indian citizen at the time of committing the offence hence if the person is not an Indian citizen during the time of commission of the offence may not be tried in India, this problem would have arisen if further sub-sections had not been added. Further sub-sections of S.4 make it clear that irrespective of the nationality the person who commits an offence will held liable under Indian law for the offence which is committed beyond India but which has affected or targeted India. Cyber crime is such a crime which has no boundaries because the criminal is often secluded and it becomes very difficult to track down the IPC address of the criminal hence it may be international crime also. It becomes very difficult to punish the person and there would be conflict between the nations about which law may be applicable. There might be a situation where the person has committed the crime in country X and that country has legislated a law that the person who commits the cyber crime on another country would be held liable and tried in country X itself and may be given lesser punishment. But thanks to the amendment of the IPC S.4(3) by IT Act 2008 which makes any person liable for targeting a computer resource in India. The reason behind this is that the effect of cyber crime or targeting a computer resource is seen in India hence the person should be tried and punished in India. In the case of Abdul Kader v. State³⁷, it was said that if the effect of an offence is seen in India irrespective of the corporeal presence of the offender Indian courts will have the jurisdiction to try the offence. In this case the offence of cheating and conspiracy was charged on the offender and the offence was committed in Dubai a foreign nation, but the part of it was also done in India, Chandigarh³⁸, hence the offender was charged under S.188 of CrPC which deals with the offences which are committed outside India³⁹. Citizenship which is acquired subsequently is not the test to check whether S.4 would be applicable⁴⁰. It was in the case of Fatima Bibi Ahmed Patel v. State of Gujarat⁴¹, SC held that if at the time of commission of the offence if the person is not a citizen of India then S.4 would not apply to him/her whatsoever.

Now in S.4(2) of IPC comes the concept of Admiralty jurisdiction which means that jurisdiction related to the maritime claims⁴².There is also an Act which is related to admiralty jurisdiction “The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act of 2017” whose object is to consolidate the laws related to the admiralty jurisdiction and other legal matters related to it⁴³. As per S.4(2) of IPC any person, whether an Indian citizen or not would be held liable for the offences committed by him/her on any ship or aircraft which is registered in India wherever the ship or aircraft might be⁴⁴. Ships are considered as floating islands⁴⁵. Ships and aircrafts have flag on them hence they are considered as the part of territory of a state.

IV. Conclusion

By the critical analysis of the territorial jurisdiction of IPC it is concluded that the Indian laws are applicable in the International waters and also IPC is applicable for the offences committed outside India but whose effect is seen in India. India needs to approach the International organization for amending UNLCOS and requesting to add a clause in the law that a state’s penal law should also be made applicable in the contiguous zone, EEZ for the protection of its subjects. India should enter into agreements with multiple nations regarding the penalty for offences which are committed by its subjects on Indian soils and negotiate on terms. There should also be a law made for the offences which are committed on Air which falls within the jurisdiction of India. All the nations should consider making laws relating to outer space and their jurisdiction as this arena is being more explored nowadays.

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