An Overview of Extra-Territorial Jurisdiction

Introduction:
Jurisdiction may be defined as power or authority of a court to hear and determine a case, to adjudicate and exercise any judicial power in relation to it by taking cognizance of matters presented before the court.1 There are two kinds of jurisdiction of courts-a) inherent jurisdiction, and b) local jurisdiction. By want of inherent jurisdiction, it is meant that the court is not empowered to try the case. The local jurisdiction means the limit of the area in which the court can exercise its power.2 The lex fori or law of jurisdiction controls all matters pertaining to remedial as distinguished from substantive rights. If question of jurisdiction is raised the trial can be commenced after deciding that question.3 Territorial Jurisdiction or local jurisdiction is provided just as a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular court, the convenience of the witnesses who have to appear before the court.4 Under the English Law, 'all crimes are local' and are triable at the common law by the courts within whose jurisdiction they are committed.5 The basic rule is reflected in Section177 of the Cr.P.C which reads that proper and ordinary venue for trial of a crime is the area of jurisdiction in which, on the evidence, the facts occur and which are alleged to constitute the crime.6 The word "ordinarily"7, however, suggests that certain exceptions are implicit and they are not limited to these specially provided in the CRPC. Specific Exceptions have been laid down in Sections 179 to 185 and 188.8 In case of IPC Section3 & 4 deal with Extra-territorial jurisdiction. Provisions Related With "Extra Territorial Jurisdiction of CRPC:
1 2

Ujjam Bai v. Uttar Pradesh, AIR 1962 SC 1621 The Code of Criminal Procedure, Batuk Lal, 2nd ed., p. 291 3 The Code of Criminal Procedure, Dr. N.V. Paranjape, 3rd ed., p. 212 4 Janardan Reddy v. State of Hydrabad, AIR 1951 SC 217 5 Abraham v. Inspector of police ,AIR 2004 SC 4286 6 Narumal v. State of Bombay, AIR 1960 SC 1329 7 Section177 of Criminal Procedure Code, 1973 8 TAKWANI CRIMINAL PROCEDURE, 3rd ed., p. 110

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188. Offence committed outside India. 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 com- mitted at any place within India at which he may be 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.

189. Receipt of evidence relating to offences committed outside India. When any offence alleged to have been committed in a territory outside India is being inquired into or tried under the provisions of Section188, the Central Government may, if it thinks fit, direct that copies of depositions made or exhibits produced before a judicial officer in or for that territory or before a diplomatic or consular representative of India in or for that territory shall be received as evidence by the Court holdings such inquiry or trial in any case in which such Court might issue a commission for taking evidence as to the matters to which such depositions exhibits relate. The Section188 provides for extra-territorial jurisdiction over Indian citizens as well as NonIndian Citizens.9 Language of the Section is plain and simple. It operates where an offence is committed by a citizen of India outside the country. Requirements are, therefore, one commission of an offence; second - by an Indian citizen; and third - that it should have been committed outside the country.10 The Section specifies two cases in which a person is triable for offence committed out of India, namely, - (a) When an Indian citizen commits an offence in any place either on the high seas or elsewhere, and (b) When any person, not being such citizen, commits an offence on any ship or aircraft registered in India. CRIMES COMMITTED OUTSIDE INDIA:

9 10

Ratanlal &Dhirajlal, The Code of Criminal Procedure, 673 (18th ed., Wadhwa & Co. Nagpur, New Delhi, 2007) Ajay Agarwal v. Union of India, AIR 1993 SC 1637

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Where an offence is committed beyond the boundary of India but the offender is found within limits, two contingencies arise: - a) the offender may be given up for trial to the country where the offence was committed (extradition) and b) the offender may be tried in India (extraterritorial jurisdiction). Extradition: Extradition is the surrender by one state to another of a person desired to be dealt with for crimes of which he has been accused or convicted and which are justiciable in the courts of other states. Surrender of a person within the State to another State - whether a citizen or alien- is a political act done in the pursuance of a treaty or an arrangement ad hoc. It is founded on the broad principle that it is in the interest in the civilized communities that the crime should not go unpunished, and on that account it is recognised as a part of the comity of the nations that on estate should ordinarily afford to another assistance towards bringing offenders to justice. The law relating to Extradition is based on treaties between the states. But whether an offender should be handed over pursuant to a requisition is determined by the Domestic laws of the state on which the requisition is made. Though Extradition is granted in implementation of the international commitments of the State, the procedure to be followed by the Courts in deciding, whether extradition should be granted and on what terms, is determined by the municipal laws. Extra territorial Jurisdiction of CRPC: The Indian courts are empowered to try offences committed out of India either on land or on ship, or on aircraft. Offences Committed on Land: By virtue of Section3 and 4 of Indian penal Code and Section188 of CRPC, local courts can take cognizance of offences committed beyond the territories of India.11 It was held in Om Hemrajani v. State of U.P.12, that section188 is to dispel any objection or plea of want of jurisdiction at the behest of a fugitive who has committed an offence in any other country. If such a person is found
11 12

Central bank of India v. Ram Narain, AIR 1955 SC 36 2005 1 SCC 617

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anywhere in India, the offence can be inquired into and tried by any Court that may be approached by the victim. The convenience of victim is of importance. it is clear that neither the place of business nor place of residence of the petitioner and for that matter of even the complainant is of any relevance. Offences Committed on ship: The jurisdiction to try offences committed on high seas is known as admiralty jurisdiction. It is founded on the principle that a ship on high seas is a "floating island" belonging to the nation whose flag she is flying. it extends over Indian vessel, 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 accused, an English sailor, stole three chests of tea out of a British vessel, when it was lying in a river in China. It was urged that as the vessel was 20 30 miles from the sea, the offence was committed on high seas. It was held the offence was committed within the admiralty jurisdiction.13 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 Mayor Hans George14 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. Offences Committed by Indian Citizens beyond India:

13 14

Thomas Allen 1837 1 Mood CC 494 AIR 1965 SC 722

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Clause (a) of Section188 of CRPC deals with the offence committed by Indian Citizen at any place beyond India. The jurisdiction of the courts is not lost because venue of offence is in foreign country. The case of Central Bank of India v. Ram Narain15 dealt with the offence committed outside India, by a person who acquired Indian citizenship after he had committed the said offence It was held that the person had not acquired the citizenship of India at the time of offence, and therefore Section4 of the Indian Penal Code and Section188 of the Code of Criminal Procedure Code was not applicable.16 Offences committed by Foreigners in India: Crimen trahit personam. The Crime carries the person.17 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 not 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.18 Offences Committed By Foreigners outside India: 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.19 In Fatma Bibi Ahmed Patel vs State of Gujarat & Anr20 on a complaint by the appellant's daughter-in-law, C.J.M., Gujarat take cognizance of the offence alleged to have been committed by the appellant. But the appellant was not a citizen of India and according to the provision of 188 of Cr.P.C, this Section will be attracted only when alleged accused has to be a citizen of India even if offence was committed outside India or by any person or any ship or aircraft registered in India. An act will not be construed as applying to foreigners in respect to acts done by them outside the dominions of the sovereign power enacting. That is a rule based on
15 16

AIR 1955 SC 36 Id. 17 Law of Crimes ,Ratan Lal Dhirajlal, Enlarged 18 Mobarik Ali Ahmed, AIR 1957 SC 857 19 Supra Note 17. 20 2008 6 SCC 789

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international law, by which one sovereign power is bound to respect the subjects and the rights of all other sovereign powers outside its own territory.21 Sanction under Section188: Sanction under sec. 188 is not a condition precedent to taking cognizance of the offence. If it need be, it could be obtained before the trial begins. Where the conspiracy was hatched at Chandigarh mere presentation of bill of lading at Dubai or payment at Dubai which were not isolated acts and were part of chain activities between the appellant side and his associates to cheat the bank at Chandigarh; prior sanction prior sanction of Central Government under the Section was not necessary.22 Which Court Can Try Such Offences: Generally the rule is that The Courts within whose jurisdiction the offender may be found will have jurisdiction in the matter. But it may not always be so. In Empress v. Maganlal23 decided in the year 1882 interpreting the word 'found', it was opined that it was used to confer the jurisdiction to the court of a place where the accused is actually found, i.e., produced before the Court and not where a person is discovered. In other words, it would mean that an accused may be discovered by the Police at a place not within the jurisdiction of the Court enquiring or trying but that is not the place contemplated by Section188. For the purpose of jurisdiction, it would be the court where he is actually produced or appears which can said to have found him. In Emperor v. Vinayak Damodar Sarvarkar24 the contention that the accused is charged before a Magistrate with an offence under the Penal Code and was brought there illegally from a foreign country was rejected. An illustration was given in that a man commits a crime, say murder, in a country but he escapes to some other country before he is apprehended, the Police finding him in some other country, brings him to England and produces him before a Magistrate. It would not
21 22

Supra Note 17. p. 43 Ajay Agarwal v. Union of India, AIR 1993 SC 1637 23 ILR Bom 6 622 24 1910 (35) ILR 223

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be open to the Magistrate to refuse to commit him. The Court held that "If he were brought here for trial, it would not be a plea to the jurisdiction of the Court that he had escaped from justice, and that by some illegal means he had been brought back". In the above decision of the Court cannot be said to be a good law in the present times when we have to follow due process of law where even a legal act done through illegal means will be illegal only. The principle of fruit of a poisonous tree must follow here. I hold that the above observation of the court does not qualify to be a good law in a democratic society. In the case of in Om Hemrajani v. State of U.P.25 the scheme underlying Section188 is to dispel any objection or plea of want of jurisdiction at the behest of a fugitive who has committed an offence in any other country. If such a person is found anywhere in India, the offence can be inquired into and tried by any Court that may be approached by the victim. The victim who has suffered at the hands of the accused on a foreign land can complain about the offence to a Court, otherwise competent, which he may find convenient. The convenience is of the victim and not that of the accused. It is not the requirement of Section188 that the victim shall state in the complaint as to which place the accused may be found. It is enough to allege the accused may be found in India. The Court where the complaint may be filed and the accused either appears voluntarily pursuant to issue of process or is brought before it involuntarily in execution of warrants, would be the competent Court within the meaning of Section188 of the Code as that Court would find the accused before him when he appears. The finding has to be by the Court. It has neither to be by the complainant nor by the Police. The Section deems the offence to be committed within the jurisdiction of the Court where the accused may be found.

Conclusion: As a general rule, every offence must be inquired into and tried by the court within whose jurisdiction it was committed. At the same time however, if any offence is inquired into or tried by a magistrate who has no territorial jurisdiction over the place of offence, it would amount to irregularity and the trial would not be vitiated nor the conviction and sentence set aside on the
25

2005 1 SCC 617

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ground of wrong place of trial unless it has occasioned failure of justice. At the same time, however, the prosecution cannot choose a wrong court by ignoring the clear provision of the code. The provision of Section462 of Cr. P.C. protect proceedings initiated in a wrong court if failure of justice has not occasioned thereby. But that Section does not empower the magistrate to proceed with a trial with his eyes open to the fact of want of territorial jurisdiction...

Whenever an objection as to jurisdiction of the court is raised, trial cannot proceed unless that question is decided. If the defect regarding jurisdiction is pointed out before the commencement of the trial, it should be set right immediately. But if an objection as to the place of trial is not raised at the preliminary stage, such objection may not be raised by an appellate or revisional court if no prejudice is caused to the accused. Finally it should be remembered that the court has to decide the question of jurisdiction with reference to the facts stated, allegations levelled and averments made in the complaint and charge-sheet not on the basis of the defense of the accused. But the facts are positively disproved or the court is satisfied that it has no jurisdiction to entertain the complaint, the court will have to return the complaint to the complainant for the presentation to the proper court.

Bibliography: 1. 2. 3. 4. Takwani, Criminal Procedure, 3rd Ed. Lexis Nexis The Code of Criminal Procedure, S.N.Misra, Central law Publication R.V. Kelkar's Criminal Procedure Code of Criminal Procedure, B.B.Mitra, 21st ed, Kamal Law House Kolkata, Vol 1

5. Ratanlal & Dhirajlal, Commentary on The Code of Criminal Procedure, 18th enlarged Ed, Vol 1 6. 7. Ratanlal & Dhirajlal, Law of Crimes, Enlarged Edition The Code of Criminal Procedure, by Batuklal

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