The provisions of this Code apply also to any offence committed by:
Image Source: img.washingtonpost.com
(1) Any citizen of India in any place without and beyond India;
ADVERTISEMENTS:
(2) Any person on any ship or aircraft registered in India wherever it may be.
Explanation:
In this section the word ‘offence’ includes every act committed outside India which, if committed in India would be punishable under this Code.
Extra-territorial Application:
ADVERTISEMENTS:
Sections 3 and 4 of the Code provide for the punishment of offences committed outside India. The provisions of the Code apply 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 (Section 4).
Under this section is discussed the extent of the applicability of the provisions of the Code to offences committed outside the Indian territorial limits. A citizen of India outside, wherever he may be, if guilty of an offence, will be punishable under the Code.
Any person whether he may be a citizen of India or a non-citizen on any ship or aircraft registered in India shall be amenable to the jurisdiction of Indian Courts if he is found guilty of an offence. An offence includes every act committed beyond India which, if committed in India would be punishable under this Code.
It is sufficient that the act done constitutes an offence under the Indian Penal Code even if it is not an offence under the law of the country where the act was done. Section 188 of the Code of Criminal Procedure which prescribes the procedure for the trial of such persons says that any such person may be tried in any place in India where any such person may be found as if the offence in question had been committed at such place.
ADVERTISEMENTS:
Illustrations:
(1) A, who is citizen of India commits a murder in Uganda. He can be tried and convicted of murder in any place in India in which he may be found.
(2) A, an Indian instigates B, a Pakistani to murder C, another Pakistani by writing a letter from Delhi to Karachi where B and C reside. B declines to act according to A’s wishes. A may be held responsible for abetment to murder by Indian Courts.
A person accused of an offence under the Indian Penal Code and committed outside India cannot be tried for that offence by a criminal court in India after his migration to India and acquiring thereafter the status of a citizen of India.
According to Section 4 of the I.P.C. and Section 188 of the Cr. P.C., if at the time of the commission of the offence the person committing is a citizen of India even if the offence is committed outside India, as qua citizens the jurisdiction of the court is not lost by reason of the venue of the offence.
The provisions of Section 4 shall not apply, if the offender at the time of the commission of the offence was not a citizen of India. It is immaterial if the accused has acquired Indian citizenship subsequent to the commission of the offence.
If, however, at the time of the commission the accused person is not a citizen of India, these sections have no application at all.
In a case the complainant lodged a complaint on November 5, 1962 in the court of the Presidency Magistrate, Bombay, alleging that the accused had committed offences under the Indian Penal Code in the year 1953 within the territorial limits of Daman, which was then a foreign territory governed by the Portuguese Government.
The jurisdiction of the court at Bombay was challenged with the contention that since the complaint was lodged in 1962 after the inclusion of Daman in the Union Territories from December 20, 1961, the offences could be tried at the place where they were committed, that is, Daman. It was held that both the Indian Penal Code and the Code of Criminal Procedure came to be extended to Daman with effect from October 1, 1963, that is, almost 11 months after the complaint had been lodged at Bombay, though Daman had become Indian territory almost about the same period, that is, 11 months before the lodging of the complaint.
It is clear that on the date of the complaint, neither the Indian Penal Code nor the Code of Criminal Procedure extended to the territories in question. Since the offences had been committed beyond Indian territories and since none of the provisions of the Cr. P.C. relating to the place of trial would be attracted to such a case and, therefore, a rule had to be laid down in Section 4, I.P.C., providing that the offender would be tried in the place where he is found.
This provision must be read in conjunction with Section 188, Cr. P.C. Although Goa, Daman and Diu came to be merged in the Indian Union with effect from December 20, 1961, still an offender could not be tried by Daman Courts for offences under the I.P.C. committed by him in 1953 when the offender was an Indian citizen and the offences fell within the purview of Sections 3 and 4, I.P.C.
It is the date of the offence which would be determinative of the issue and on that date, the matter was governed by Sections 3 and 4, I.P.C. and Section 188, Cr. P.C. That position would continue unchanged till the extension of the I.P.C. and the Cr. P.C. to Goa, Daman and Diu and therefore the accused persons were liable to be tried in a competent Indian court on November 5, 1962.
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 the Indian Penal Code for any act committed beyond India in the same manner as if such act had been committed within India. (Section 3).
A reference to Section 3 of the Code clearly indicates that it is implicit therein that a foreigner who commits an offence within India is guilty and can be punished as such without any limitation as to his corporeal presence in India at the time as the legal fiction is implicit in the phrase “as if such act had been committed within India”. Section 3 would not have been limited to the supposition that such act had been committed within India, but would have extended also to a fiction as to his physical presence at the time in India. There is no doubt that on a plain reading of Section 2 of the Code, the I.P.C. applies to a foreigner who has committed an offence within India notwithstanding that he was corporeally present outside.
Under this section is postulated the existence of a law that an act constituting an offence in India shall also be an offence when committed outside India. This section can only be applied to a case of a person who at the time of committing the offence charged was amenable to the jurisdiction of an Indian Court.
[ No offence under Section 4 can be tried unless the Political Agent or diplomatic representative, if there is any, for the territory in which the offence is committed, certifies that the offence should be inquired into or tried in India or the State Government sanctions the trial. (Vide Section 188, Cr. P.C.).
Indian courts are empowered to try offences committed out of India either on (1) land, or (2) High Seas. The jurisdiction to try offences committed on the high seas is known as Admiralty Jurisdiction. The principle underlying such jurisdiction is that a ship is a floating Island belonging to the nation whose flag she is flying.