Murder is a crime is most parts of the world !

 Can Indian courts try a foreigner who has committed an offence of

murder in the USA ?
 What bars a country from trying offences in another countries ?
 Can a criminal escape liability only because it escaped the territory of a
nation ?
 Is the application of the Indian Penal Code limited to India ?
 Sovereignty
 What is Sovereignty ?
 What differentiates a sovereign from a non-sovereign ?
 How is it an essential feature to decide the jurisdiction of the laws of a
nations ?
 Can India as a sovereign exercise its penal jurisdiction over other countries ?
 How to punish for international
?
human trafficking ??
Jurisdiction of the IPC

The application of the Act depends upon the place where the offence is committed and
not on the nationality or place of residence of the offender.
 The offence shall be punishable under the Indian law.
 Sec 1- The Code extends to whole of India except the state of Jammu & Kashmir
 The Penal Code of Jammu & Kashmir is know as Ranbir Penal Code.
 Article 370 of the Constitution of India allows for this special status.
 http://www.thehindu.com/opinion/lead/Understanding-Article-370/article11640894.ece
 The jurisdiction of IPC can be either :
1. Intra Territorial – within the boundaries

2. Extra Territorial – beyond the boundaries

Section 2 of the Act deals with the Intra Territorial
Jurisdiction, i.e. offence committed in India and punished
under the Code.
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”
The term “Indian Territory” has been defined to include land, water
(inland water including the river, canals etc.) and the portions of sea.
“Every Person” includes Citizen, non citizen and even Foreigners
visiting India. Although the same excludes judicial person (companies
etc.), though the same shall be liable for the actions of their directors
because of the principle of Vicarious Liability.

Every person is made liable to punishment without, distinction of nation,

rank caste or creed, provided the offence with which he is charged is
committed in India.
 I was thinking…

1. Is a foreigner liable to punishment for an act which is not a

punishable offence in his country ?
2. Does he have an excuse that he did not know the laws of the land
?
Ignorantia legis neminem excusat/ Ignorantia
juris non excusat
 Ignorance of law excuses no one.
 Ignorance of law does not excuse.
 Crown v. Esop. [(1836) 7 C & P 456]

Brief:
 A person was indicted for an unnatural offence
committed on board an East India ship lying at St.
Katherine’s Dock
 He was a resident of Bangladesh where such an act is
not an offence.
 It was held that this could not be considered as a legal
defense.
 Constitutional Provision defining
territorial jurisdiction
Article 1 of the Constitution of India defines the geographical territory
as follows:
 Name and territory of the Union.—
 India, that is Bharat, shall be a Union of States.
 The States and the territories thereof shall be as specified in the
First Schedule.
 The territory of India shall comprise— (a) the territories of the
States; (b) the Union territories specified in the First Schedule; and
(c) such other territories as may be acquired.
On 7th May 2015, the parliament of India has passed the 119th constitutional amendment
bill 2013, which after the assent of the President has come to be known as the Constitution
100th Amendment Act 2015.
This amendment is the Land Boundary Agreement between India and Bangladesh for the
exchange of territories in the North–eastern region.
The LBA envisages a notional transfer of 111 Indian enclaves to Bangladesh in return of
51 enclaves to India.

Question 1. Does India lose the jurisdiction over the territories ceded to
Bangladesh ?
Question 2. Who shall have jurisdiction over the newly acquired territories ?
 Exemptions to the Applicability of the Code
The Code is not applicable to soldiers, sailors or airmen ‘in the service of the
Government of India’ because there are different laws for punishing such
personnel.
Example : Military personnel are tried under the Army Act 1950 by way of
Court-martial.
 Civil Offences are not tried by court- martial.
Protection of members of the Armed Forces from arrest under
Cr.PC: Section 45
1.Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member of the
Armed Forces of the Union shall be arrested for anything done or purported to be done by him
in the discharge of his official duties except after obtaining the consent of the Central
Government.
2.The State Government may, by notification, direct that the provisions of Sub-Section (1) shall
apply to such class or category of the members of the Force charged with the maintenance of
public order as may be specified therein, wherever they may be serving, and thereupon the
provisions of that Sub-Section shall apply as if for the expression “Central Government”
occurring therein, the expression “State Government” were substituted.
Law under the Army Act,1950
A person subject to this Act who commits an offence of murder against a person not subject
to military, naval or air force law, or of culpable homicide not amounting to murder against
such a person or of rape in relation to such a person, shall not be deemed to be guilty of an
offence against this Act and shall not be tried by a court- martial, unless he commits any of
the said offences-
(a) while on active service, or
(b) at any place outside India, or
(c) at a frontier post specified by the Central Government by notification in this behalf .
“Within India” :
If the offence is committed out of India it is not punishable
under the Indian Penal Code, unless it has been made so by
means of special provisions. In situations wherein the
consequence of the criminal act ensues, would be relevant to
determine the court of competent jurisdiction. Therefore, the
courts within whose local jurisdiction, the repercussion or
effect of the criminal act occurs, would have the jurisdiction in
the matter.
 Corporate criminal liability.
• A company is liable to be prosecuted and punished for criminal
offences.
• Although, earlier a belief existed that the corporates cannot
commit a crime, the generally accepted modern rule is that a
corporation may be subject to indictment and other criminal act
even though the act may be committed through the agent.
• Fine and imprisonment being a prescribed punishment, no
corporate can defend claiming immunity from criminal
prosecution on the ground that they are incapable of possessing
the necessary mens rea for the commission of criminal offence.
 Vicarious liability.
 Indian Penal Code, save in some cases, does not contemplate
any vicarious liability on the part of a person.
 IPC does not attach any vicarious liability on the part of
Directors or M.D. when the accused is the Company.
 Criminal liability does not shift, even though the civil liability
may shift from the servant to the master.
Example: The M.D. of a company or the Directors of the same can
not be held liable or said to have committed the criminal offence,
just because they are holders of office.

Company is a distinct legal entity, which is capable of being

prosecuted.
Individual directors or the MD can be only prosecuted for offences
which they have committed in their own capacity.
 Mobarik Ali v. State of Bombay
 This was an appeal by special leave under Article 136.
 The appellant was convicted by the learned Presidency Magistrate,
Third Court, Esplanade, Bombay, for the offence of cheating under s.
420 read with s. 34 of the Indian Penal Code on three counts of
cheating, viz., the first relating to a sum of Rs. 81, 000, the second
relating to a sum of Rs. 2, 30, 000, and the third relating to a sum of
Rs. 2, 36, 900.
 He was sentenced by-the learned Magistrate to two years
rigorous imprisonment and a fine of Rs. 1, 000 on the first
count, to twenty-two months rigorous imprisonment and a fine
of Rs. 1, 000 on the second count, and two months rigorous
imprisonment on the third count.
 It was directed that the substantive sentences only on the second
and third counts were to run concurrently.
Background :
The appellant, a Pakistani national doing business in Karachi.
He was convicted of the offence of cheating under s. 420 Of the Indian Penal
Code.
The prosecution case was that with a dishonest intention he made false
representations to the complainant at Bombay through letters, telegrams and
telephone talks, that he had ready stock of rice, that he had reserved shipping
space and on receipt of money he would be in a position to ship the rice
forthwith, and that the complainant who was anxious to import rice urgently
sent the amount to the appellant on the belief of such representations.
Contentions of the Appellant :
1. That the Appellant was a Pakistani national and never entered into
India before the date of trial.
2. He did not fall under the jurisdiction of the Indian Penal code !
3. That he was brought down from England, by virtue of an extradition
proceedings for another offence, the trial of which was pending in
sessions court at Bombay.
4. That he could not validly tried and convicted for a different offence
like that of section 420 of IPC.
5. That the charge being under section 420 read with section 34 of IPC,
for alleged conjoint acts of himself with three others and those three
not being before the court, and he being not available in Bombay at
the time of commission f offence, was not sustainable.
 Judgement:
 The Supreme Court held that the Pakistani national was subject to
the jurisdiction of the Indian Courts.
 He was found guilty of committing the offence of cheating and the
appellant had already surrendered to the authorities of India under
the provisions of the Fugitive Offenders Act, 1881 in connection
with another case.
 His conviction was valid under section 420, Indian Penal Code.
 Exceptions !! Who is exempt from
liability ?

Even though section 2 fixed criminal liability on ‘every

person’ here are some persons who have been granted
immunity from prosecution either by the Constitution of India
or by international law.
 BY INDIAN CONSTITUTION

 Protection of President and the Governors “The President of India, along with the
Governors/Rajpramukh of States are immune to judicial proceedings.” The
privilege emanates from Article 361 of the Indian Constitution:
 The exercise and performance of powers and duties of the President/Governor are
outside judicial review. The above is subject to exception of Article 61, viz.,
impeachment of the President. The Courts may thus review charges of violation of
the Constitution against the President.
Article 361 in The Constitution Of India 1949
(1) The President, or the Governor or Rajpramukh of a State, shall
not be answerable to any court for the exercise and performance of
the powers and duties of his office or for any act done or purporting
to be done by him in the exercise and performance of those powers
and duties
Provided that the conduct of the President may be brought under
review by any court, tribunal or body appointed or designated by
either House of Parliament for the investigation of a charge under
Article 61.
Provided further that nothing in this clause shall be construed as
restricting the right of any person to bring appropriate proceedings
against the Government of India or the Government of a State.
(2) No criminal proceedings whatsoever shall be instituted or
continued against the President, or the Governor of a State, in any
court during his term of office
(3) No process for the arrest or imprisonment of the President, or the
Governor of a State, shall issue from any court during his term of
office.
The right of a person to sue the Government of India/State remains in
intact. Criminal proceedings, whether pending at the time of entering
upon the office or thereafter, may not lie against the President/
Governor during their term.

They can be prosecuted only after the term is over.

(4) any civil proceedings in which relief is claimed against the President, or the
Governor of a State, shall be instituted during his term of office in any court in
respect of any act done or purporting to be done by him in his personal capacity,
whether before or after he entered upon his office as President, or as Governor
of such State, until the expiration of two months next after notice in writing has
been delivered to the President or Governor, as the case may be, or left at his
office stating the nature of the proceedings, the cause of action therefor, the
name, description and place of residence of the party by whom such
proceedings are to be instituted and the relief which he claims.
Article 61 : Procedure for impeachment of the President
(1) When a President is to be impeached for violation of the Constitution, the charge shall be preferred
by either House of Parliament.
(2) No such charge shall be preferred unless –
(a) the proposal to prefer such charge is contained in a resolution which has been moved after at least
fourteen days’ notice in writing signed by not less than one-fourth of the total number of members of the
House has been given of their intention to move the resolution, and
(b) such resolution has been passed by a majority of not less than two-thirds of the total membership of
the House.
(3) When a charge has been so preferred by either House of Parliament, the other House shall investigate
the charge or cause the charge to be investigated and the President shall have the right to appear and to
be represented at such investigation.
(4) If as a result of the investigation a resolution is passed by a majority of not less than two-thirds of the
total membership of the House by which the charge was investigated or caused to be investigated,
declaring that the charge preferred against the President has been sustained, such resolution shall have
the effect of removing the President from his office as from the date on which the resolution is so passed.
 Courts are prohibited to issue orders (called "processes") for the
arrest or imprisonment of the President/Governor during their term.
 Civil proceedings may not lie against the President/Governor during
his term.
 Such proceedings include actions performed in his personal capacity
before or after entering upon office.
 The above immunity is available only for a period of 2 months after a
mandatory notice explaining the nature of offence is made to the
President/Governor.
Rationale:
o The President represents the highest authority of the executive while the
Supreme Court is the apex judicial authority.
o The immunity ensures that both are supreme in their respective spheres
thereby ensuring a balance of power between the organs of the State.
o The President/Governor are thus made to function independent of any
overarching judicial interference. “The immunity has however been
alleged to have been misused by former President Pratibha Patil.”
Allegations against Pratibha Patil:
Her younger brother Gajendra Singh Patil and former Parliamentarian Ulhas Patil were
accused of the Murder of Vishram Patil in 2005.
No action was taken by the CBI for two years.
In 2007 Pratibha Patil became the President of India.
The CBI used delaying tactics stating that no evidence were available against the
accused.
The CBI PP resigned in 2015 and there is no PP in the case from then.
The Bombay High Court asked the CBI to appoint a PP in February 2016 but no action
was taken by the CBI.
Yet another allegation is that she had granted clemency and pardoned
4 rapists and murderers, who had raped a 3 minor girls and beheaded
one boy.
The Supreme Court sent a notice to the Centre stating that the death
sentence was awarded in these cases because these were “rarest of
the rare cases.”
International law gives immunity to the following
from criminal prosecution:—
1. Foreign Sovereigns
2. Ambassadors
3. Alien Enemies
4. Warships
1. Foreign Sovereigns
Since a sovereign is the highest authority of his

nation, he is not amenable to the jurisdiction of

other countries. He is totally independent and
represents the dignity of his country.
 The State Of Maharashtra vs Czechoslovakia Airlines

 Non-compliance by the Czechoslovakia Airlines with the mandate of maintaining

muster rolls.
 This defendant claimed complete immunity or exemption on the basis of the
accused being a department or a part of the Government of Czechoslovakia.
 The prosecution contended that the Airlines is a commercial concern and the
General Manager of that concern was the employer within the definition of Rule
2(1) of the Payment of Wages (Air Transport Services) Rules, 1968, so that the
immunity from the process of municipal Courts was not available.
Judgement:
The learned trial magistrate observed that there was no dispute
that the State of Czechoslovakia is an independent sovereign
State recognised by the Government of India. He also observed
that it was not in dispute that the accused is an enterprise, wholly
owned by the State of Czechoslovakia.
 According to the learned Magistrate, the offence was not alleged to have been
committed by the accused No. 2 in his individual capacity.
 His responsibility was only that of a Manager or a representative of the accused No. 1.
 The learned Magistrate upheld the contention of the accused that there was an absolute
sovereign immunity under the International Law.
 He discarded the contention that the principle of sovereign immunity should not be
applied to commercial transactions and actions like the present case, arising out of such
transactions.
 He relied on the decision in Royal Nepal Airline Corporation v.
Monorama.
 According to him., the same principle was accepted by the
Bombay High Court in its decision in G.D.R. v. Dynamic
Industrial Etc. (1970) 73 Bom. L.R. 183.
 He therefore, discharged the summons issued against the accused
and the complaint was dismissed.
 Aggrieved by that decision, the State of Maharashtra went in
revision.
 This Revision Application raised a question of International Law,
regarding the scope and extent in India, of the application of the
principle of sovereign immunity.
 The Bombay High Court held that the commercial transactions
entered into by the two respondents in India, could not be saved by
the principle of sovereign immunity.
 The order of the Magistrate was set aside.
Royal Nepal Airline Corporation v. Monorama Meher Singh Legha.

Brief facts:
 Manohar Singh was the pilot employed by the airlines.
 The Airlines at Head Office at Kathmandu and yet another office in
Chowrighee lane, Calcutta.
 The pilot died while plying an aircraft belonging to the airlines, while on
duty, leaving behind his wife and two minor children in Calcutta.
 The place of accident was Bhairawa aerodome in Nepal.
 The suit was filed in the Calcutta High Court.
 The said air crash of accident and the death of the said Meher Singh was due to
negligence and/or breach of duty on the part of the defendant.
 The learned Magistrate did not hear the case and in its order state that “certain
preliminary issues are to be decided before proceeding with case”.
 The issues was to decide upon the jurisdiction of the court.
 Also the order was made without prejudice to the rights of the parties to raise any
point at the hearing as to the manner in which the trial is to be conducted.
 The order was appealed against.
Issues before the Calcutta High Court:
(1) Is the defendant a body corporate? If not, is the suit maintainable?
(2) To whom did the plane belong at the time of the alleged accident? Did It belong to His
Majesty's Government of Nepal? If so, has this Court any jurisdiction to entertain and try this
suit?
(3) Did the defendant at the date of the institution of the suit carry on business at Chowringhee
Road, Calcutta? Is M/s. Jamair Co. Private Ltd. an independent contractor? If so, has this Court
any jurisdiction to entertain and try this suit?
(4) Did the air crash occur due to any negligence and/or breach of duty on the part of the
defendant, as alleged in the plaint?
(5) To what damages, if any, are the plaintiffs entitled?
 Judgement
The first appeal was that the AIRLINES was not a body corporate. The High Court did not
accept this argument and the appeal failed.

The second appeal in contention was that a foreign State which is even indirectly impleaded can
come in and claim immunity at any time before the suit is heard on its merits and it is the duty of
the Court to examine the contention and give its decision as to whether the suit ought to be
allowed to proceed.
The second appeal was allowed and the suit was stayed further in India.
Lord Canning struck a somewhat different note in his speech and pointed out
that.
"Sovereign immunity should not depend on whether a foreign Government
is impleaded directly or indirectly but on the nature of the dispute. If the
dispute brings into question the legislative or international transactions of a
foreign Government or the policy of its executive, immunity from process
should be granted, but if the dispute concerns the commercial transactions of
a foreign Government and arises properly within the territorial jurisdiction of
our Courts immunity should not be granted."
 AMBASSADOR
An Ambassador is the representative of his own sovereign in another country.
Consequently, he also enjoys the immunity from prosecution like his sovereign.

Article 29 of the Vienna Convention on Diplomatic Relations 1961, protects the person
of a diplomatic agent and make its inviolable. He shall not be liable to any form of arrest
or detention. The receiving state shall treat him with due respect and take all appropriate
measures to prevent any attack on his person, freedom or dignity.

Article 30 makes the applicable the same inviolability to the residence of the diplomat.
Search and seizure shall not be permitted.

In view of the same, certain countries have passed separate legislations to govern the
immunities and privileges of ambassadors.
 Alien enemies
The military persons of alien enemies do not come under the jurisdiction of

ordinary Criminal Courts, for the acts done connecting with the war. However, if
they commit theft, robbery, rape, etc., unconnected with war, they shall be tried by
the Indian Criminal Courts.
Ordinarily criminal courts have no jurisdiction over acts of war of alien enemies.
But for other crimes of an alien enemy which are not acts of war, criminal courts
are empowered to take cognizance and punish.
 Foreign army
There are many instances when a foreign army is based on the soil of
another country with the consent of the host country. In such case the
foreign army is not amenable to the original jurisdiction of the host
nation. The Foreign army personnel entered into the Indian territories
with the permission of the Indian Government is exempted from the
jurisdiction of the criminal courts.
Warships
Warships of a State enjoy immunity from criminal liability on the
territory of another country on the ground that the property of a
sovereign, which includes his warships also, is not subject to the legal
process of another country. The warships entered into the Indian Sea
waters cannot be tried under the ordinary Indian Criminal Courts. The
Public International Law applies to such men-of-war. (United nations
Convention on the law of Sea)
 Article29
Definition of warships
For the purposes of this Convention, "warship" means a ship belonging to the
armed forces of a State bearing the external marks distinguishing such ships
of its nationality, under the command of an officer duly commissioned by the
government of the State and whose name appears in the appropriate service
list or its equivalent, and manned by a crew which is under regular armed
forces discipline.
 Article30
Non-compliance by warships with the laws and regulations
of the coastal State
If any warship does not comply with the laws and regulations of the coastal State
concerning passage through the territorial sea and disregards any request for
compliance therewith which is made to it, the coastal State may require it to
leave the territorial sea immediately.
Article31
Responsibility of the flag State for damage caused by a warship or other
government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or damage
to the coastal State resulting from the non-compliance by a warship or
other government ship operated for non-commercial purposes with the
laws and regulations of the coastal State concerning passage through the
territorial sea or with the provisions of this Convention or other rules of
international law.
 Immunities of warships and other government
ships
operated for non-commercial purposes

With such exceptions as are contained in subsection A and in articles 30

and 31, nothing in this Convention affects the immunities of warships and
other government ships operated for non-commercial purposes.
 Maritime jurisdiction.
Article 297 deals with the ‘maritime territory.’ Clauses (1) and (2) of
the said article make a declaration that all lands, minerals and other
things of value and all the other resources shall vest in the Union of
India.
Clause (3) authorises the Parliament to specify from time to time the
limits of various maritime zones such as territorial waters, continental
shelf, etc.
 Section 18 of IPC defines territory of India excluding Jammu and
Kashmir.
 These territorial limits would include the territorial waters of India.
 The sovereignty of India extends to the territorial waters, the limit of
which is 12 nautical miles.
 In other words, Land + The portion of sea washing its coasts upto 12
nautical miles into the sea = “Maritime Territory” of a state.
Example :- If an offence is committed within the belt of 12 miles in
the sea water near Mumbai, the appropriate court of Mumbai will
have the jurisdiction to try the case.
Kastya Rama vs. State (1871) 8 BHC)
Brief Facts:

 The fishers of village-A lawfully fixed fishing stakes in the sea within
three miles from the shores.
 The fishers of village-B, annoyed with their act, removed all the fishing
stakes.
 On prosecution, the accused pleaded that their act could not come within
the purview of the Indian Penal Code.
Judgment:
The Bombay High Court held that the act of fishers of village B
was within the purview of the Indian Penal Code, and
particularly their act would be “Mischief” defined in the Code,
and the place of offence was within three miles from the
shores, and were covered within the territory of India.
Extra Territorial Jurisdiction: Section 4 of the IPC extends the
application of the code to an offence committed outside India by an
Indian citizen and offence committed on a ship or aircraft registered
in India.
Extension of Code to extra-territorial offences. — 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.
Thus, the code shall be Extra Territorially applicable in the following
cases:
 any citizen of India in any place without or beyond India;
 any person on a ship or aircraft registered in India;
 any person in any place beyond India wherein the target of the
offence being a computer resource located in India.
 For crimes committed outside India, where the offender is found in
India, he may be given to that country through extradition or he may
be tried in India (extra territorial jurisdiction).
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.
But, there is no express enactment by which the Indian legislature can assume
to render foreigners subject to the criminal law of India with reference to acts
committed by them beyond the limits of India and the rights of all other
sovereign powers outside its own territory
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.
Example 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.

Rationale: Abetment to crime is also a crime punishable under the

Indian Penal Code
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.

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.
The jurisdiction of a country in 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, not only when they are sailing on the high seas, but also
when they are in the rivers of a foreign country at a place below
bridges, where tides ebbs and flows and where great ships go.
It makes no difference whether ship is made fast to the bottom of
the river by anchor and cable, the admiralty jurisdiction extends
over Indian ships although they may be at a spot where municipal
authorities of a foreign country might exercise concurrent
jurisdiction, if invoked.

The same principle applies to aircrafts as well.

Committed on Aircraft:
The provisions of the CRPC have been made applicable to any offence
committed by any person on any aircraft registered in India, wherever it
may be.
In State Of Maharashtra vs Mayer Hans George on 24 August, 1964
 the accused was a German national travelling in a Swiss aircraft from Zurich to
Manila.
 When the aircraft landed at Bombay on 28 the November, 1962, in transit, he
remained within the aircraft. He had not filed a declaration regarding the Gold he
was carrying on his personas required under Foreign Exchange Regulation Act,
1947 as amended on 8 November, 1962.
 He was therefore, apprehended, tried and convicted in India for the violation.
Judgement
The magistrate court punished him with 1 year rigorous imprisonment.
The High Court struck down the order of the magistrate’s court stating
that there was no mens rea.
The Supreme Court allowed the appeal against the order of the High
Court and stated that mens rea was not important. Further nobody carries
34 kgs of gold for their personal usage and hence it was smuggling.
Offences committed by Foreigners in India:
Crimen trahit personam The Crime carries the person.
The commission of Crime gives the court of the place where it is
committed jurisdiction over the person of the offender. The fastening of
criminal liability of a foreigner for offences committed in India are
judicially attributable to him notwithstanding that he is corporeally not
present here at the time of commission of a crime is to give extra-
territorial operation of the law; for it is in respect of an offence whose
locality is in India, that the liability is fastened on that person.
 Savarkar’s case [(1910) 13 B.L.R. 296]
Facts of the Case
The accused Vinayak Damodar Savarkar was committed to this Court by Mr.
Montgomerie, First Class Magistrate of Nasik, for trial upon charges framed
under Sections 121, 122 and 123 of the Indian Penal Code.
He refused to participate in the trial and asked for adjournment.
He further asked for representations to the British and the French Governments as he
alleged that his arrest was “illegal”.
The court refused the plea on the ground that the court is established to try for
offences and not otherwise.
 Savrakar had escaped the territory of India and fled to Britain, from where he was being
deported in a ship called “Morea”.
 He managed to flee from that ship as well but was caught by French policemen (who did
not have the authority to arrest him)
 A dispute arose between the British and the French government that the British police had
tried to violate the sovereignty of France.
 The French police was under the impression that Savrakar is a fugitive and they have to
safeguard their ship against him.
 After arresting him, they had to hand him over to the Britich police, which brought him to
India.
The case went for International Arbitration and it was held that :
It is not one of recourse to fraud or force in order to obtain
possession of a person who had taken refuge in foreign territory, and
that there was not, in the circumstances of the arrest and delivery of
SAVARKAR to the British authorities and of his removal to India,
anything in the nature of a violation of the sovereignty of France,
and that all those who took part in the matter certainly acted in good
faith and had no thought of doing anything unlawful.
 Judgement
 Where a man is in the country and is charged before a Magistrate
with an offence, under the Indian Penal Code it will not avail him to
say that he was brought there illegally from a foreign country.
 Neither the jurisdiction of the Magistrate to inquire into the case nor
the jurisdiction of the Court to try it can be affected by any illegality
in connection with the re-arrest.
 Raj Bahadur, [(1918) P.R. No. 23 of 1918]

It was held that a foreign subject resident in a foreign territory instigating

the commission of an offence which, in consequence, is committed in
Indian territory, is not amenable to jurisdiction of an Indian court if the
instigation has not taken place in India.
Section 5:
Nothing in this Act shall effect the provisions of any act for punishing mutiny and
dissertation of officers, sailors or airmen in the service of the Government of India or
the provisions of any special or local law.
Offences under local and special laws are outside the purview of this Code.
But if the facts of the case come within the definition of IPC, this code shall also
have jurisdiction.
However the person cannot be punished under both the IPC and the special law.
Local laws are those which are applicable only to a certain part of the country.
Example bigamy is punishable under IPC for Hindus but not for Muslims.
 Extent and Scope of the IPC in Cyber Crimes
In a leading case of cyber crime, SMC Pneumatics (India) Pvt. Ltd. v. Jogesh
Kwatra [6], India’s first case of cyber defamation, High Court of Delhi
assumed jurisdiction over a matter where a corporate’s reputation was being
defamed through e-mails, and passed an important ex-parte injunction. The
concept of consequence and cause of action extends jurisdiction but a
conflicting situation arises where there is no defined regulation at one of the
places. For example, the Act does not provide any provision to catch the
internet pornography on foreign websites but only for sites in India.
Thank you !