JURISDICTION

The material sources on this subject are the provisions of the Penal Code,
the C o d e of C r i m i n a l P r o c e d u r e , certain British Statutes and the
interpretation by the judiciary of these provisions. Jurisdiction is an aspect
of state sovereignty and it refers to judicial, legislative and administrative
competence. 1 Although it is an aspect of sovereignty, it is not co-extensive
w i t h it. I n t e r n a t i o n a l law circumscribes a state's right to exercise
jurisdiction. 2 Some principles on the basis of which criminal jurisdiction is
exercised, are : 3
(1) The territorial principle;
(2) The principle of personal jurisdiction (the principle of nationality);
(3) The universal principle;
(4) Special jurisdiction, exercisable under specific conventions relating to
particular types of offences (extradition etc.).

The IPC is one of the most comprehensive penal code anywhere in the
world. 4 The statute, though of colonial vintage, has shown its resilience in
the fact that even one hundred and forty five years after it was originally
passed, the entire statute remains substantially unaltered. 5 The territorial
coverage of the IPC extends to the whole of India, barring the territory of
the State of J&K. which has enacted its separate criminal law. The general
principle of criminal jurisdiction is that jurisdiction is determined by the
locality of the offence irrespective of the nationality or other similar
attributes for the offender.6

1. Brownie, Principles ofPublic International Law (1998) p. 280.

2. In the Lotus Case (1927) PCIJ held that it was required of a state ... that it should not
overstep the limits that international law places on its jurisdiction.
3. P.M. Bakshi, "Extra territorial Jurisdiction in Criminal Law", Indian Journal of
Criminology & Crimnalistia, 19 (1998) p. 14 at 3.
4. V Suresh & D Nagasaila,(ed.) PSA Pillai's Criminal Law (9th ed. 2000) p. 327.
5. Ibid.
6. Mobarik Alt Ahmed v. State of Bombay, AIR 1957 SC 857 (869): 1957 Cri LJ 1346.
48 ESSAYS ON THE INDIAN PENAL CODE

Territorial Jurisdiction: Section 2 of the Penal Code declares that every person
shall be liable to punishment under the code and not otherwise for every act
or omission contrary to the provisions of the code of which he shall be
guilty within India. A foreigner committing a crime in India cannot plead
ignorance of Indian Law.7 A person who in India instigates the commission
of an offence outside India is also liable to punishment under the Penal
Code. 8 It has also been held that foreigners who initiate offences9 abroad
that take effect on Indian territory are amenable to Indian jurisdiction. The
Supreme Court explained in Mobarik Ali v. The State of Bombay10 that the
basis of jurisdiction under S. 2 is the locality where the offence is committed
and that the corporeal presence of the offender in India is immaterial. In
that case the accused, a Pakistani national, while staying at Karachi made
false representations through letters, telephone conversations and telegrams
to the complainant at Bombay and induced the latter to part with money at
Bombay. When the accused subsequently came to Bombay he was
prosecuted for cheating. The Supreme Court held that the offence was
committed by the accused at Bombay even though he was not physically
present there.
As far as jurisdiction in criminal matters is concerned, by and large it
depends upon the territorial aspect of the crime. It was observed by the
court:11
The general rule in criminal law is strictly territorial- so that a
man is subject to only criminal law of the country where he is,
and that his conduct there whether by acting, speaking or writing
shall be judged of as criminal or not by that law and no other.
This position has two exceptions namely when the crime commences
outside the territory but concludes within it or has an effect in it and when
the crime commence within the territory but has an effect or is concluded
outside it.12
The Permanent Court of International Justice in the Lotus case held that:13
International law as it stands at present, does not contain a
general prohibition to extend the application of their laws and
jurisdiction of their courts to persons, property and acts outside

7. Jitendranatk Ghosh v. The ChiefSecretary to the Government ofBengal, (1932) 60 Cal. 364.
8. See S.108A of Indian Penal Code.
9. Chotelal v. Emperor, 36 Bora. 524; Wheeler v. Emperor, 29 Cr LJ 1089.
10. AIR 1957 SC 857.
11. Per Lord Young in HMAdvocate v. Hall, (1881) 4 Couper 438.
12. Surya Jyoti Gupta "Civil & Criminal Juris in the Internet". XXIX Indian Bar Review
(2002) 45-71 at 61.
13. (1927) PCIJ, Ser A, No 10.
JURISDICTION 49

their territory...the territoriality of criminal laws therefore is not

an absolute principle of international law and by no means
coincides with territorial sovereignty.
Personal jurisdiction has two aspects, active nationality principle; where
alleged offender is a national and passive nationality principle, wherein
jurisdiction is assumed by the state of which the victim is a national. The
principle of universality is applied where by general admission the offence is
contrary to the interest of the international community and the offence is
treated as a "delict jure gentium". All states can arrest, prosecute and punish
the offender, the rationale being, that such an offender should not go
unpunished. 14 This essentially means that states can exercise jurisdiction
over foreigners for acts done in foreign countries. However, this seems to
contravene customary International law.15
Under international law, jurisdiction is primarily territorial or based on
the nationality of the subject; however, it may go beyond that. Each state
may exercise jurisdiction over crimes against its security and integrity or its
vital economic interests. This is known as the "protective principle" oi Joyce
v. D.P.P.lb In this case, the alleged offender, though, an alien, obtained a
British passport. It was held that an alien owing some kind of allegiance to
the British might be tried by British courts, for treason abroad. This
extension of the territorial principle is generally justified on the ground of
protecting the political and economic security of the state asserting it. 17
A n o t h e r approach to criminal jurisdiction emerging in the West is
nationality based jurisdiction and universal jurisdiction. The Sex Offenders
Act, 1997, Land Mines Act, 1998 confer powers to British Courts to try
criminal offences committed abroad by nationals of Britain, and statutes like
the International Courts Act, 2001 goes a step further and enunciate to try
even non nationals for certain crimes like genocide.18
Law of criminal jurisdiction in India is governed by Ss. 2 -4 of IPC and
S. 188 of Cr PC. Under S. 2 of IPC 1 9 the following two conditions are
necessary to make a person liable to punishment under the section:
(a) the act or omissions charged against the provisions of the code.
(b) Such person must be guilty of such act or omission within the
borders of "India". In other words, the guilty conduct must have
taken place in India.

14. Id. at 4.
15. Dissenting opinion of Lord Finley in the Lotus case.
16. (1946) ACT 347.
17. Supra note 3.
18. Supra note 4.
19. S. 2. 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.
50 ESSAYS OF INDIAN PENAL CODE

There are two exceptions to the rule that a person must be guilty
"within India" if he is to be punishable under this code. These two
exceptions are provided under S. 4 and they relate to: (a) offences committed
by "citizens of India" any where in the world and offences committed by
any person on any ship or aircraft" registered in India wherever it may be.
The expression "every person" in S. 2 includes all persons without
limitation and irrespective of nationality, allegiance, rank, status, caste,
colour or creed, 20 excepting such persons as may be specially exempted
under statute, as under the constitution of India or under international law,
such as foreign princes, ambassadors etc. 21 The word person has been
defined in Section 11 as including any company or association, or body of
persons, whether incorporated or not. Hence even an incorporated
company, which is only a juristic person, can be guilty of an offence under
the code. 22 In State of Maharashtra v. Syndicate Transport Company23 the
Bombay High Court held that a body corporate ought to be indictable for
criminal acts or omissions of its directors or authorised agents or servants,
whether or not they involve mens rea. Further, the Supreme Court in
Superintendent and Remembrancer of Legal Affairs, West Bengal v. Corporation of
Calcutta,1'1 held that the state and its bodies are liable to criminal
proceedings unless specifically exempted.
A foreigner committing an offence in India will be amenable to the
Indian law and will be punishable under this section,25 although he may not
be physically present in India at the time of the offence. 26 A foreigner
committing an offence in India will be guilty though he may be ignorant of
the Indian laws.27 But the'ignorance of law may be pleaded in mitigation of
the sentence. 28 The section does not mean that the offender should be
physically present in India at the time of the offence. The section only
means that the offence must take place in India although the offender is
outside. 29 This principle viz., that the offender need not be physically
present in India at the time of the commission of the offence in India, also
applies to foreigners and not only Indians. This position has also been
established by Supreme Court in Mubarak All's case.30 A foreigner cannot
also plead ignorance of the laws of the land, as to escape from criminal

20. Adams v. Emperor, (1903) ILR 26 Mad 607 (617) SB.

21. See Ching Chi Cheum v. The King, AIR 1939 PC 69 (73, 74): 40 Cr LJ 291.
22. Queen Empress v. Mungul Tekchand, (1886) ILR 10 Bom 258 (261) (DB).
23. 1964(2) Cri LJ 276.
24. AIR 1967 SC 997.
25. Supra note 19.
26. Supra note 10 at 876 .
27. Nazar Mohammad v. State, AIR 1953 Panj 227 (231): 1954 Cri LJ 1542.
28. Ibid.
29. Supra note 10 at 870.
30. Id. at 857.
JURISDICTION 51

liability. In State of Maharashtra v. M.H. George^ it was held that it is not

necessary for Indian law to be published outside India, so that foreigners
can know about them. Therefore, M.H. George, though, ignorant about the
change in Indian law, was held liable under Foreign Exchange Regulations
1948.32 The Supreme Court observed:3111
It is obvious that for an Indian law to operate and be effective in
the territory where it operates viz., the territory of India, it is not
necessary that it should either be published or be made known
outside the country...
The criminal liability under this section is normally limited to the
offences committed within India. The term "India" has been defined in
section 13 as meaning the territory of India excluding the state of Jammu &
Kashmir. Further, under Article 1(3) of the Constitution of India, the
territory of India comprises of: the territories of the states, the union
territories specified in the first schedule, and such other territories as may be
acquired.

II

Territorial Waters Jurisdiction: It is universally recognized that every State has

jurisdiction over the waters adjacent to its land-boundaries called the
maritime belt or territorial waters. The territorial waters may be considered
as a prolongation of the State territory, as under international law it is
recognized that they are subject to the sovereignty of the littoral state. The
rule is that marginal belt extends to 12 nautical miles from the coast.33 The
territories strictly speaking, of a State include not only the compass of land
in ordinary acceptation of the term belonging to such State, but also that
portion of the sea lying along and washing its coast which is commonly
called its maritime territory. Thus besides the land territories of a State, it
has jurisdiction over the sea within permitted limits. 3 4 Early Indian
decisions 35 proceeded on this basis and applied the Penal Code to persons
committing offences in the territorial waters. In Kastya Rama's case36 Justice
Kemball said "It is impossible to avoid the conclusion that the territories
strictly speaking include not only the compass of land in ordinary
acceptation of the term but also that portion of the sea lying along and
washing its coast which is commonly called its maritime territory. I fail to

31. AIR 1965 SC 722.

3U.Id. at 743, para 44.
32. Now repealed by Foreign Exchange Management Act,1999.
33. Previously it extended to 3 nautical miles only.
34. Per Kemball, J, in Kastya Ram, (1871) 8 Bom. HCR (Cr.) 63.
35. Reg. v. Irvine 1st Mad. Sess. 1867 cited in Mayne, The Criminal Law of India, Edn. VI
p.28; R. v. Kastya Rama (1871) 8 Bom. H.C.R. (Cr.) 63.
36. Supra note 34.
52 ESSAYS OF INDIAN PENAL CODE

discover in the absence of special legislation on the subject any ground, for
distinguishing between offences committed on different portions of a State
territory The venue of the offence was British India and the charge
was rightly laid under Sec.2 Indian Penal Code ( )
such provision superseding the provisions of Sec.2 of 12 and 13 Vic. Ch. 96
if they ever extended within three miles of the shore".
In Queen v. Keyn,37 the captain of German streamer the "Franconia" was
convicted by a lower British Court of manslaughter for the death of a
passenger caused by a collision that took place within three miles of the
British Coast. The high court dismissed the case on the ground that
although the exercise by the state, jurisdiction over the marine league was
evidenced by the practice of nations and by the statements of writers of
authority, parliament had not yet actually extended the criminal jurisdiction
of the courts over the territorial waters in question. However, consequent
on the decision in R. v. KeyniS the Territorial Waters Jurisdiction Act 39 was
passed by British Parliament declaring that all offences committed in
territorial waters of the Queen's dominions were triable by the local
courts. 40 This Act which is applicable to India defines territorial waters as
any part of the sea within one marine league (3 miles)41 of the coast. Section
7 of the Act defines an 'offence' as follows: " 'offence' as used in this Act
means any act, neglect or default of such description as would, if committed
within the body of a county in England be punishable on indictment
according to the law of England for the time being in force". There has not
been any Indian case decided under this Act. The following problems arise
for consideration.
(A) Whether the Act is in force now: As part of the law in force at the time of
the commencement of the Constitution it continues to be applicable42 since
the Indian Legislature has not replaced it by any-other enactment nor has
the President of India made any adaptation or modification to it. 4 3
However, since the Act confers jurisdiction upon the courts in India as part
of the Queen's dominions, there arises the legal difficulty of interpreting a
British Statute in the light of the fundamental constitutional change that has

37. L.R. (1876) 2 Ex. D. 63.

36. Ibid.
39. 41 and 42, Vic. c. 73.
40. Section 2 of the Act provides "An offence committed by a person whether he is or
is not a subject of Her Majesty, on the open sea within the territorial waters of Her
Majesty's dominions, is an offence within the jurisdiction of the Admiral although it
may have been committed on board or by means of a foreign ship and the person
who committed such offence may be arrested, tried and punished accordingly."
41. Section 7 of the Act.
42. See Art. 372(1) Constitution of India.
43. It has also not been repealed by the British Statutes (Application to India) Act 1960.
JURISDICTION 53

taken place and the argument m a y be put forth that the Act can n o longer
apply t o India in view of the change in status of India from a dependency to
a Sovereign D e m o c r a t i c Republic. In State of Madras v. C.G. MenonAA the
Supreme C o u r t held that the provisions of the Fugitive Offenders Act, 1881,
w h i c h i n c l u d e d I n d i a i n t o a g r o u p w i t h o t h e r B r i t i s h p o s s e s s i o n s for
p u r p o s e s of s u r r e n d e r of f u g i t i v e o f f e n d e r s w e r e r e p u g n a n t t o t h e
c o n c e p t i o n of India being a Sovereign Democratic Republic and hence n o
longer law in force. 45 H o w e v e r the English courts held 4 6 that the same Act
c o n t i n u e d t o o p e r a t e vis-a-vis India by virtue of the India (Consequential
Provisions) Act, 1949, until provision to the contrary is made by competent
authority. Further the Madras High C o u r t dealing with a case relating ot the
a p p l i c a b i l i t y of t h e E n g l i s h C o p y r i g h t A c t , 1911, r e j e c t e d 4 7 t h e w i d e
c o n t e n t i o n t h a t B r i t i s h S t a t u t e s w h i c h w e r e a p p l i c a b l e t o I n d i a as a
B r i t i s h p o s s e s s i o n w o u l d o n t h e g r o u n d of t h e changed political status
of India, a u t o m a t i c a l l y cease t o apply after the c o m i n g i n t o force of t h e
Indian C o n s t i t u t i o n . T h e reasonable course to adopt w o u l d appear to be to
regard the Territorial Waters Jurisdiction Act as continuing in force u n d e r
A r t . 372(1) of t h e C o n s t i t u t i o n . T h e Law C o m m i s s i o n in its fifth r e p o r t
dealing w i t h British Statutes applicable to India stresses the urgent need for
t h e I n d i a n P a r l i a m e n t t o enact self-contained and c o m p a r a b l e laws in all
matters (including territorial waters jurisdiction) covered by British
Statutes. 4 8
(B) T h e next question that arises concerns the w i d t h of the m a r i t i m e belt.
U n d e r t h e T e r r i t o r i a l W a t e r s J u r i s d i c t i o n Act the distance u p t o w h i c h
jurisdiction m a y be exercised is a marine league (3 miles) 4 9 but a the U N -
s p o n s o r e d L a w of the Sea Treaty, which went into effect in 1994, codified
t e r r i t o r i a l waters of 12 nautical miles (13.8 m i / 2 2 . 2 km) and an exclusive
e c o n o m i c z o n e of 200 nautical miles (230 miles/370 k m ) .
(C) T w o further questions that arise in this connection are:
(i) If an offence is c o m m i t t e d by an Indian citizen in the territorial waters,
will his liability be judged b y English law according t o the provisions of
Sec.7 (defining the t e r m 'offence') of the Territorial Waters Jurisdiction Act

44. [1955] 1 S.C.R. 280.

45. The court does not appear to have considered sections 22 and 28 of the Adaptation
of Laws Order, 1950, which related to the interpretation of such statutes. See T.S.
Rama Rao 'Decisions I. Public International Law', The Indian Year Book of International
Affairs, 1954, p. 389.
46. Re : Government oflndia and Mubarak Ali 1952, 1, All. E.R. 1060.
47. Blackwood & Sons v. Parasuraman, AIR 1959 Mad. 410.
48. Law Commission of India 5th Report, p.5. The Commission also deems it desirable
to preserve any privilege conferred by the British Law.
49. Section 7 of the Act.
54 ESSAYS ON THE INDIAN PENAL CODE

or should he be governed by the Indian Penal Code? 5 0 As there is no

decided case .under the Territorial Waters Jurisdiction Act, one has to look
to the analogy of certain other British statutes conferring jurisdiction on
Indian courts to deal with offences committed on the High Seas. The
Admiralty Offences Act 51 which was extended to India in I860 52 while
conferring jurisdiction on colonial courts to try offences committed on the
high seas provides that the offences should be punished as if they were
committed, inquired into, and tried in England. It was, therefore, held in R.
v. Elmstone?3 and R. v. Thompson5* that the substantive law to be applied by
a court exercising jurisdiction under that Act is the English law. However,
the Bombay High Court in Kastya Rama's case55 held that so far as offences
committed in the territorial waters are concerned the substantive law to be
applied is the local law (Penal Code) and not the English Law. West J.,
observed "But suppose the 'offence' is not reckoned as such by the colonial
law, are the local courts to take cognizance of it as though it were an
offence, because it is one in England? This would be to impose a burden on
their legal conscience which they could not well bear. Lord Brougham in the
case already cited says: "It may safely be asserted that no instance whatever
can be given of the criminal law of any country being made to bend to that
of any other in any part of its administration". That which it would be
improper to enforce internationally it is not to be presumed that a dominant
country intended to enforce in the case of a dependency in matters not
affecting their political relations to each other. As an English court would
not enforce a criminal law of a colony differing from its own, so neither is it
likely that it was meant to impose on Colonial Courts an obligation to
enforce all the provisions of the English Criminal Law. Suppose, again, the
case of a local law of New Zealand, for example, prohibiting the sale of fire
arms or of gunpowder to the natives; is it to be said that, because no charge
of such an offence could be framed under the English law, the traffic could
be carried on with perfect impunity at a hundred yards from the shore? This
would be to nullify the. local law in most of the instances in which it is
specially adapted to local circumstances, and thus to do away with the chief
benefit arising from the existence of colonial legislatures. The true intent of
the section, I cannot but think is this, that where the law defining an offence
in a dependency coincides with that of England in force when the statute'
became law a person convicted of such offence shall not be subject to a

50. By Section 2 if the territorial waters are regarded as part of India, or else by Sec. 4
which provides "The provisions of this Code apply also to any offence committed by
(1) any citizen of India in any place without and beyond India".
51. 12 and 13 Viet. Ch. 96.
52. Sec. 1 Admiralty Jurisdiction Act, 1860 (23 and 24 Viet. Ch. 88).
53. 7 B.H.C.R. (Cr.) 89.
54. 1 B.L.R. (Cr. O.J.) 1.
55. Supra note 34.
JURISDICTION 55

severer penalty than the English law prescribes ".

A subsequent British statute, The Courts (Colonial) Jurisdiction Act,
187456 declared that the punishment in respect of an offence committed on
the high seas should be that which is provided in the law of the colony and
if no provision for the particular offence is to be found in the local law then
it should be such punishment as shall seem to the court most nearly
corresponds to the punishment provided in English law. The interpretation
of this later Act of 1874 has given rise to a controversy. While the Bombay
High Court has taken the view57 that the substantive law to be applied is the
Penal Code and not the English law the Calcutta High Court took the view
that the substantive law to be applied is the English law.58 In the case of R.
v. Salimullah the Calcutta Court. Court observed "Reference has been made
to Section 4 of the Indian Penal Code. It is possible to give the section a
construction which is not inconsistent with the English statute but in any
case it could not assume that the Indian Legislature had jurisdiction in the
matter, affecting the specific statute of Parliament". 5 9 This reasoning
becomes unsupportable in view of the plenary powers of the Indian
Legislature today. Besides, as a matter of construction 60 the provisions of
the Penal Code should be applied to the exclusion of any other law in the
cases of citizens of India wherever they may be and the high seas are not to
be differentiated from any other part of the world outside India. Further, the
observations of Lord Brougham quoted by West, J 61 also lead to the
conclusion that the Penal Code is exclusively applicable to Indian citizens
committing offences outside India. The proper view to take seems to be that
the Penal Code should govern all cases of offences committed by citizens of
India in the territorial waters. To hold otherwise would mean that the
offenders can with impunity, as West, J explained, break the local laws if
corresponding provisions do not exist in English law,62 by going a few yards

56. 37 and 38 Viet. ch. 27.

57. R v. Sheik.Ahdool Rahiman, 14 Bom. 227; R v. Chief Officer S.S. Mushtan, 25 Bom. 636;
See also Po Thaung v. R 12 Cr. L.J. 198.
58. R. v. Salimullah, 39 Cal. 487.
59. 39 Cal. 487 at p. 497. The accused in this case was a native Indian subject (citizen of
India) to whom Sec. 4 would apply.
60. Jagannadhadas, J., observes: ".... It is not necessary and indeed not permissible to
construe the Indian Penal Code at the present day in accordance with the notions of
criminal jurisdiction prevailing at the time when the Code was enacted. The notions
relating to this matter have very considerably changed between then and now during
nearly a century that has elapsed. It is legitimate to construe the Code with reference
to the modern needs, wherever this is permissible unless there is anything in the
Code or in any particular section to indicate the contrary". AIR 1957 SC 857.
61. See page 51 supra.
62. e.g., Offence of Adultery under S. 497, of the Penal Code and Prohibition Offences.
See Gupteswar, "Territorial Waters Jurisdiction" 3 JILIp. 99.
56 ESSAYS OF INDIAN PENAL CODE

into the waters, (ii) where the offender is a non-citizen the question again
arises w h e t h e r the Penal Code should apply as the substantive law or the
English law should apply according t o the Territorial W a t e r s Jurisdiction
Act. This is a matter of construction of that statute at the present day.
Judicial o p i n i o n has sought, i n d e p e n d e n t l y of express legislation, t o
regard territorial waters as being part of the territory of India with the result
that municipal law would automatically apply in that area. 6 3 This attitude
w o u l d b e in c o n s o n a n c e w i t h t h e p r i n c i p l e s of i n t e r n a t i o n a l l a w .
C o m m e n t a t o r s o n the c o n s t i t u t i o n 6 4 also seem t o take t h e v i e w that t h e
state t e r r i t o r y includes the territorial waters. H o w e v e r , M a y n e was of the
view that express legislation conferring jurisdiction was necessary, 6 5 and
legislative practice in certain m a t t e r s 6 6 seems t o indicate t h a t t h e Indian
Legislature has acted o n the assumption that express p r o v i s i o n w o u l d be
necessary t o confer jurisdiction b u t the evidence is n o t conclusive. It is
d e s i r a b l e t h a t all p o s s i b l e d o u b t s r e g a r d i n g t h e e x e r c i s e of c r i m i n a l
jurisdiction in territorial waters be settled b y express provision t o the effect
that the territory of India includes territorial waters.
It is well established that the courts of the state have jurisdiction over
its port, harbours, the m o u t h s of its rivers and its land-locked bays. 6 7 T h e
right of innocent passage granted to foreign state and the privileges granted

63. (i) R. v. Irvine andKastya Rama's case already noted;

(ii) The Privy Council in Chelikani Rama Rao v. Secretary ofStatefor India (1916, L.R.
Ind. App. 199) decided that the territory of the maritime belt vested in the
Crown. This decision is criticized by D.P.O.' Connell in 'Problems of Australian
Coastal Jurisdiction'. The British Year Book of International Law, 1954 p. 199 at
222.
(iii) In A.M.S.S. V.M. & Co. v. The State of Madras (1953) 2 M.L.J. 587, it was
observed "as regards the territorial waters, therefore, the position under the
Constitution remains what it was under the Government of India Act". Under
the Government of India Act the territory of British India was deemed to
extend to the territorial waters whatever the extent of the waters might be (N.
Rajagopala Ayyangar, The Government of India Act, 1935, at p. 119).
(iv) In Ultrich v. The Collector of Customs, 1959 Ker. L.R. 1326, Raman Nair J.
observes "From Sec. 19 of the Sea Customs Act it is clear that importation
means bringing into India across any custom frontier as defined by the Central
Government under Sec. 3-A of the Act. That apart the Territorial Waters which
by a proclamation by the President dated 22-3-1956 have been defined as
extending to a distance of six nautical miles measured from the Indian coast line
is an integral part of India and in the ordinary sense of the word 'imported'
goods are imported into India when they enter the territory of India".
64. N.C. Sen Gupta, Commentary on the Constitution of India, (1950) p.4. Basu D.
Commentary on the Constitution ofIndia Vol. I (1961).
65. Mayne, Criminal Law ofIndia 4th Edn. p. 30.
66. See the Indian Fisheries Act, 1897, and The Sea Customs Act, 1878.
67. Issub Ibrahim, Pary's Oriental Cases, (1945) 579.
JURISDICTION 57

to public ships in p o r t and in part t o private ships, are concessions, w h i c h

leave the general principles of sovereignty intact. As regarding a ship of war
o n t h e h i g h seas, all n a t i o n s have agreed t o certain l i m i t a t i o n s of t h e i r
absolute territorial jurisdiction. T h e immunity, which undoubtedly enjoyed
b y men-of-war has been international immunity, extended t o troopships, 6 8
and i n d e e d t o all ships of the state. T h e question of jurisdiction depends
u p o n t h e p l a c e of c o m m i s s i o n of t h e offence, it m a y b e , s o m e t i m e s ,
necessary t o i n q u i r e i n t o that question, and the courts are so far able t o
make an inquiry, for otherwise, the court is not in a position t o say whether
it has or has n o t jurisdiction.
T h e territorial waters of India also extend to a distance of 12 nautical
miles f r o m t h e a p p r o p r i a t e base line. 6 9 This zone also includes the bays,
gulfs and straits s u r r o u n d i n g the country's seacoast.

Ill

Extra Territorial Jurisdiction : Sections 3 and 4 of the Penal C o d e provide 7 0

for the liability of offenders committing offences b e y o n d the territories of
India. Section 3 of the Penal Code makes not only Indian citizens liable for
offences c o m m i t t e d abroad (even t h o u g h their acts may not be punishable
at the place w h e r e t h e y are committed) but also others w h o are covered by
a n y s p e c i a l l a w b r i n g i n g t h e m u n d e r I n d i a n j u r i s d i c t i o n . 7 1 Section 4
p r o v i d e s t h a t t h e p r o v i s i o n s of the C o d e will also apply (1) t o citizens of
India w h e r e v e r t h e y m a y be outside India and (2) t o all persons o n b o a r d
any ship or aircraft registered in India. Section 4(1) lays d o w n the active
Nationality principle. 7 2 Where an offence is committed beyond the limits of
India b u t the offender is found within its limits, then

68. The Athol, (1842) 1 s.m. Rob 374.

69. See Gazette of India Extraordinary, Part HI section 2, Sept. 30, 1976.
70. See also 188 Code of Criminal Procedure, Infra note 78.
71. e.g., Indian Army Act, 1950. See Khader Nawaz, 'Criminal Jurisdiction and
International Law', Indian Year Book ofInternational Affairs, Vol. I (1952), p. 210.
72. The recent Geneva Conventions (Act VI of 1960) provides for jurisdiction over non-
nationals committing offences abroad as well. A trend towards the recognition of the
passive nationality principle is reflected in the speech of Krishna Menon. He said
"The second chapter is probably the most important because it makes the change in
our jurisprudence and our law; that is to say, until now the jurisdiction of our courts
was in regard to our nationals or in regard to offences committed in this country, by
the nationals of other countries. This still makes a change; a change that has been
accepted in other countries and it is a change on the older systems of jurisprudence.
That is to say, those who are violators of this convention whether they happen to be
nationals of this country or not, would be under the municipal and criminal
jurisdiction of our courts. This is a departure from our legal system as it stands at
present with its consequences" Lok Sabha Debates, Vol. XXXVIII, col. 121.
58 ESSAYS OF INDIAN PENAL CODE

(1) he may be given up for trial in the country where the offence was
committed (extradition), or
(2) he may be tried in India (extra territorial jurisdiction).
The rationale behind extension of criminal jurisdiction of the courts in
India, even if the offence is committed beyond or outside India, is based on
the contention that every sovereign state can regulate the conduct of its
citizens, wherever they might be for the time being.73
The common law doctrine is, that jurisdiction in criminal law is
primarily territorial. Crime is said to be 'extra-territorial' when committed in
a country other than it is tried. 74 Sections 3 7 5 and 4 76 of IPC deal with
offences committed beyond India, in the same manner as if it is committed
in India. Section 3 enables the Indian courts to try persons who have
committed offences outside India. 7 7 The procedure with regard to
prosecuting cases of offences committed outside India has been provided in
S. 188, CrPC. 78 Sections 3 and 4 and S. 188 CrPC, 1973 form, together, one
group of provisions dealing with the jurisdiction of Indian courts to try and
punish persons for offences committed by them 'outside India'. Where any
person is liable under any 'Indian' law to be tried for any offence committed
outside India, he shall be dealt with under the provisions of the code if the
act or omission charged would, if committed in India, have constituted an

73. See Story's Conflict of Laws, section 1, quoted by K.D. Gaur, A Textbook on the Indian
Penal Code (3rd ed. 2004) p.6, Universal Law Publishers.
74. Black, Law Dictionary, (1990) page 588.
75. Section 3. Punishment of offences committed beyond, but which by law may be tried
within, India. 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 this Code
for any act committed beyond India in the same manner as if such act had been
committed within India.
76. Section 4. Extension of Code to extra-territorial offences- The provisions of this
Code also 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;
Explanation- In this section the word "offence" includes every act committed
outside India which, if committed in India would be punishable under this Code.
77. See Rao Shw Bahadur Singh v. State of UP, AIR 1953 SC 394; Central Bank ofIndia Ltd
v. Ram Narain, AIR 1955 SC 36.
78. Section 188. Offences 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 committed at any
place within India at which he may be found:
Provided that, notwithstanding 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.
JURISDICTION 59

offence u n d e r the C o d e . The question of 'substantive liability to

punishment' under the Penal Code is dealt with under S. 4 of the Code. 79
In the case of an 'Indian Citizen' committing an offence outside India
he will be liable to be tried at any place where he may be found in India,
'wherever' he may have committed the offence. This rule is based on a
general principle relating to extra-territorial laws. But in the case of foreign
subjects, such liability to be tried in India will arise only if the offence has
been committed on a ship or aircraft 'registered in India' wherever it may
be. If a person is found at particular place, how he reached there is
immaterial. 80
The proviso under S. 188 Cr PC lays down that for every offence
committed outside India, previous sanction of the Central Government is
necessary. The issue regarding prior sanction of the Central Government
was considered by Kerala High Court in a few cases. In Remia v. Sub Inspector
of Police, Tanursi a sub-inspector of police refused to register a case of
murder on the ground that the offence was committed in Sharjah, UAE,
outside his territorial limits. The Kerala High Court after examining Ss. 3
and 4 IPC and S. 188 Cr P C , held that refusal by the sub-inspector was
illegal.82 A Division Bench in Mohamed v. State of Kerala83 ruled that the
police can investigate into a crime committed in a foreign country. This
decision came to be dissented from by a single judge in Samaruddin v. Asstt.
Director of Enforcement^ wherein it was held that the court had no
jurisdiction to direct investigation or trial of a crime committed by person in
a foreign country without the sanction of the Central Government. 85
In Om Hemrajani v. State o/f/.P. 86 , the Supreme Court discussed at
length the law of jurisdiction under S. 188, Cr PC. A Dubai based bank, has
filed a complaint against the petitioner and another in the Court of Special
Judicial Magistrate (CBI) under Ss. 415, 417, 418 and 420 read with S. 120-B
IPC. It has been, inter alia, alleged in the complaint that the petitioner
obtained loans, executed various documents in proof of his ability to
discharge the bank liability and gave his personal guarantee. But instead of
discharging the liability, the accused absconded without liquidating his

79. JugalKisboreMorev. ChiefPresidency Magistrate, AIR 1968 Cal. 220 (227): 1968 Cri. LJ
604 (DB).
80. Feroz v. State ofMaharashtra, 1964(2) Cri LJ 533.
81. 1993 Cri LJ 1098 (Ker).
82. See also Muhammad v. State ofKerala , 1994(1) KLT 464 (Dfy;Samaruddin v. Assistant
Director ofEnforcement, Trivandrum, 1995 Cri LJ 2825 (Ker); Muhammed Sajeed v. State of
Kerala, 1995 Cri LJ 3313 (Ker).
83. (1994) 1 KLT 464.
84. 1995 Cri LJ 2825(Ker HC).
85. KN Chandrasekhran Pillai, R VKelkar's Criminal Procedure (4th ed. 2001) p.201.
86. 2004 (9) SCALE 655.
60 ESSAYS ON THE INDIAN PENAL CODE

liability to the bank. The accused cheated and defrauded the bank in
obtaining loan facilities knowing fully well that he had no intention to pay it
back and fled from UAE. The Magistrate took cognizance of the offence
and issued processes against the person arraigned in the complaint and also
issued non-bailable warrants. The petitioner sought quashing of the
complaint case by filing a petition under S. 482 of the Code before the high
court and also challenged the order of the magistrate taking cognizance of
the offence along with non-bailable warrants issued against him. The
question before the court was whether the court at Ghaziabad had
jurisdiction to entertain the complaint? The court observed:863
By legal fiction, S. 188, which deals with offence committed
outside India, makes the place at which the offender may be
found, to be a place of commission of offence. Section 188
proceeds on the basis that a fugitive from justice may be found
anywhere in India. The finding of the accused has to be by the
court where accused appears. From the plain and clear language
of the section, it is evident that the finding of the accused cannot
be by the complainant or the Police. Further, it is not expected
that a victim of an offence which was committed outside India
should come to India and first try to ascertain where the accused
is or may be and then approach that court. The convenience of
such a victim is of importance. That has been kept in view by
S. 188 of the Code. A victim may come to India and approach
any court convenient to him and file complaint in respect of
offence committed abroad by the Indian. The convenience of a
person who is hiding after committing offence abroad and is
fugitive from justice is not relevant. It is in this context, the
expression in question has to be interpreted. Section 188 has
been subject matter of interpretation for about 150 years.
The court further observed:8613
The scheme underlying S. 188 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 court where
the complaint may be filed and the accused either appears
voluntarily pursuant to issue of process or is brought before it

86a. Id. at 658-659, para 10.

86b./^. at 660, para 16.
JURISDICTION 61

involuntarily in execution of warrant would be the competent

Court within the meaning of S. 188 of the Code as that Court
would find the accused before him when he appears. . . The
section deems the offence to be c o m m i t t e d w i t h i n the
jurisdiction of the Court where the accused may be found.
Extradition: Section 3, IPC gives criminal jurisdiction to the courts to try for
an offence committed by a person beyond the territory of India provided
such a person is subject to the Indian law. The operation of this section is
restricted to the cases mentioned in the Indian Extradition Act, 1962 and
S. 18787 Cr PC, 1973. The law and procedure relating to extradition in India
is laid down in the Extradition Act, 1962. Prior to the enactment of the Act,
the law of extradition applicable to India was found scattered in the United
Kingdom Extradition Act, 1870, the Fugitive Offenders Act, 1881 and the
Indian Extradition Act, 1903.
The expression 'extradition' means surrender by one State to another of
a person desired to be dealt with for crimes of which he has been accused
and w h i c h are justiciable in the courts of the other states. 8 8 Thus,
extradition implies transferring of one person from one state to another
state in pursuance of a treaty, an agreement, or an understanding thereof.
Whether an offender should be handed over pursuant to a requisition is
determined by the domestic law of the state on which the requisition is
made. The expression 'extradition offence' has been defined in S. 2(c) of the
Extradition Act to mean, in relation to a foreign state, being a treaty state,
an offence punishable with imprisonment for a term which shall not be less
than one year under the laws of India or of a foreign state and includes a
composite offence. The expression 'extradition treaty' has been defined in
S. 2(d) to mean a treaty (agreement) or arrangement made by India with a
foreign state relating to extradition of fugitive criminals made before the 15vh
day of August, 1947, which extends to and is binding on India.
The original Act of 1962 was amended by Act 66 of 1993. Under the
1962 Act, a distinction had been maintained between Commonwealth
Countries and foreign states. Foreign states were considered as treaty states.
The amended Act of 1993 enables India to conclude extradition treaty with
a foreign state, including the commonwealth countries, without treating
them structurally different. It provides for extraterritorial jurisdiction over
foreigners for crimes committed by them outside India and it incorporates
composite offences in the definition of extradition offence. It excludes
political offences as a defence in cases of offences of a serious nature and it
covers extradition requests on the basis of international convention. It also

87. Power to issue summons or warrants for offences committed beyond local
jurisdiction.
88. Daya Singh Lahoria v. Union ofIndia & Ore, (2001) 4 SCC 516.
62 ESSAYS OF INDIAN PENAL CODE

enables the Central Government to make and receive requests for

provisional arrest of fugitives in urgent cases pending the receipt of the
formal extradition request.
In State of West Bengal v. Jugal Kishore*9 it was held by the court that
notwithstanding the Extradition Act, 1962, Government of India could
secure the extradition of an offender for trial of an offence t h r o u g h
diplomatic channels. Similarly in Giani Bakshish Singh v. Govt. of India90 the
court observed:
The power of a state to deal with foreigners committing
offences inside territory is not in dispute. The power of a state to
detain even a foreigner who is found inside its territory in order
to prevent him from indulging in prejudicial activities inside its
territory cannot also be questioned.
In Kubic Darusz v. Union ofIndia91 where the issue of preventive detention of
a foreign national was involved the court observed:913
Crimen trahit personam. The crime carries the person. The
commission of a crime gives the court of the place where it is
committed jurisdiction over the person of the offender. Legal
relations associated with the effecting of legal aid on criminal
matters is governed in the international field either by the norms
of multilateral international conventions relating to control of
crime of an international character or by special treaties
concerning legal cooperation. The system of extradition of
criminals represents an act of legal assistance by one state (the
requestee) to another state (the requestor) with the aim of
carrying out a criminal prosecution, finding and arrest a suspect
criminal in order to bring him to court or for executing the
sentence. In concluding such c o n v e n t i o n the states base
themselves on principles of humanitarianism in their efforts to
contribute to the more effective achievement of the objectives of
the correction and re-education of violators of the law. Where
such conventions exist, the citizens of a state w h o were
convicted to deprivation of freedom in another signatory state
are in accordance with mutual agreement of the States,
transferred to the country of which they are citizens to serve
their sentences. The transfer of the convicted person may place
only after the verdict has entered into legal force and may be
carried out on the initiative of either of the interested states.

89. 1969 (1) SCC 440.

90. (1973) 2 SCC 688 at 692, para 3.
91. (1990) 1 SCC 568.
'91a./rf.at581,para20.
JURISDICTION 63

Further, in Rosalin George v. Union ofIndia92 George Kutty Kuncheria, an

Indian national was wanted in the United States of America to stand trial for
violation of Federal Fraud Statutes. The Embassy of the United States of
America in N e w Delhi sent a letter of request to Ministry of External
Affairs, Government of India, for the extradition of George to the United
States. The Ministry of External Affairs, Government of India, in exercise of
its powers under S. 5 of the Extradition Act, 1962 passed an order
requesting the Additional Chief Metropolitan Magistrate, New Delhi, to
conduct an enquiry into the matter under the Act, 1962. Extradition
proceedings were challenged by George and Rosiline, wife of George. The
court observed: 93
Extradition is founded on the broad principle that it is in the
interest of civilised communities that criminals should not go
unpunished and on that account it is recognised as a part of the
comity of nations that one State should ordinarily afford to
another State assistance towards bringing offenders to justice.
Emphasising the necessity and expediency of extradition, the court observed
in Daya Singh Lahoria v. Union of India-94
The rights of a citizen not to be sent out to foreign jurisdiction
without strict compliance with law relating to extradition is a
valuable right. This Extradition Act is a special law dealing with
criminals and accused of certain crimes and it prescribes the
p r o c e d u r e for trail as well as the embargo in certain
contingencies...In the modern world interdependence of states
is natural and essential and consequently the importance of
extradition and problems of extradition proceedings are a
necessary instrument to secure the return of the offender to the
altar of law. Laxity in the extradition efforts would only increase
the offender's appetite to commit crimes with impunity by
fleeing to a foreign territory where he cannot be touched except
through extradition...But extradition is always necessary and no
fugitive should be given the impression that he can commit an
offence and flee from the country by taking shelter in a foreign
country.
Further, the court observed:95
Extradition is practiced among nations essentially for two
reasons. Firstly, to warn criminals that they cannot escape
punishment by fleeing to a foreign territory and secondly, it is in

92. (1994) 2 SCC 80.

93. Id. at 91-92, para 16.
94. (2001) 4 SCC 516 at 518, para 3
95. Id. at 520, para 3.
64 ESSAYS OF INDIAN PENAL CODE

the interest of the territorial state that a criminal who has fled
from another territory after having committed crime, and taken
refuge within its territory, should not be left free, because he may
again commit a crime and run away to some o t h e r state.
Extradition is a great step towards international cooperation in
the suppression of crime.
Thus extradition has assumed importance in wake of increasing crime
and criminals taking refuge in other countries thereafter.96

IV

Admiralty Jurisdiction: The admiralty jurisdiction97 exercised by the English

courts has been conferred upon Indian courts by the charters of the high
courts and certain British statutes 98 viz. : Admiralty Offences Act of 1849
extended to India in 1860, Colonial Courts of Admiralty Act 1890 read with
the Indian Colonial Courts of Admiralty Act 1891, and the Merchant
Shipping Act, 1894. The last mentioned Act has been repealed and replaced
by the Indian Merchant Shipping Act, 1958, but the Indian Act of 1958
omits the provisions that confer Admiralty jurisdiction. 99 The said Acts
empower the local courts to try British subjects as well as others on board
British ships committing offences on the high seas. The considerations
regarding the applicability of the Territorial Waters Jurisdiction Act at the
present day in view of the altered constitutional position in India referred to
earlier (see para II (A) supra) Are. equally pertinent in relation to these British
statutes conferring Admiralty jurisdiction on Indian courts. Again the
problem arises as to the substantive law to be applied (whether it is the
English law or the Penal Code) by the court exercising jurisdiction conferred
by these statues. The conflict between the Bombay and Calcutta decisions
remains. 100 Section 4 (2) of the Code confers admiralty jurisdiction on the
Indian courts and the power to try offences committed on any ship, or
aircraft registered in India wherever it might be. A ship is considered to be
of the country whose flag it flies. Likewise all vessels, ships or aircrafts are
considered to be part of the territory of the country whose flag they fly.

In the case of Indian citizens and all persons on board a ship registered
in India committing offences on the high seas, the case for applying S.4 of
the Penal Code seems to be irrefutable in view of the plenary powers of the

96. Abu Salem was extradited to India from Portugal on 11.11.05, The Times of India
12.11.05.
97. The jurisdiction to try offences committed on high seas is known as admiralty
jurisdiction. High seas have been recognised as no man's territory.
98. See Law Commission 5th Report p. 56.
99. Sections 686 and 687 of the Merchant Shipping Act, 1894.
100.See supra note 55.
JURISDICTION 65

Indian legislature, but in the case of British subjects and foreigners on board
British ships over whom jurisdiction may be claimed the matter is not free
from difficulty. Mayne pointed out the difficulty thus: 101
If then Parliament directs that an Englishman who commits an offence
on the high seas shall be tried for it in a colonial or Indian court at the
other end of the world, one would expect that the court should try him
for the offence which he committed at the time and place where he
committed it. But the offence he committed at such a latitude and
longitude at sea was an offence at English law or none at all. Otherwise
the remarkable result would follow that if a person committed an
improper act at sea its criminality would depend on the direction in
which the ship's head was turned. Suppose an English passenger in the
Red Sea uses slanderous language which by English law would neither
be punishable civilly nor criminally but would be defamation under the
Penal Code; or suppose he obtains the property of another by a
representation which would not be a false pretence under English law
but would be cheating under the Penal Code; if he was tried in the
Central criminal court he must be acquitted. Could he be convicted in
the High Court of Bombay? Can a man who has committed no offence
at all on the 1 st July in the Red Sea be convicted on the 1 st August in
Bombay on the ground that if he had done the same act a fortnight later
in a different place he would have been punishable under a code to
which he was not subject when he did the act which is complained of ?
It seems almost a reductio ad absurdum.
But if the reasoning of the Bombay decisions is to be adopted the Penal
Code should apply in such cases. A comprehensive Indian enactment on the
topic of admiralty jurisdiction would be the proper solution.
Piracy: Piracy (or piracy, jure gentium) has been recognized as a crime against
the international community for several centuries. It was accepted in
customary international law that each state had the right to catch and try
those engaged in piratical activity either on the high seas or within state
territory. 102 The accepted definition of piracy was formulated in Art 15 of
the Geneva Convention on the High Seas (1958) and is as follows:
Piracy consists of any of the following acts:
1) Any illegal acts of violence, detention or any act of depredation,
committed for private ends by the crew or the passengers of a private
ship or a private aircraft, and directed:

101. Supra note 65 at 75.

102. See David Cording, Life Among the Pirates: The Romance and the Reality, (1995); see,
also, DH Johnson, 'Piracy in modern international law' (1957) 43 TGS 63; GE White,
'The Marshall Court and international law. the piracy cases' (1989)83 AJIL 727.
66 ESSAYS OF INDIAN PENAL CODE

a) On the high seas, against another ship or aircraft, or against persons

or property on hoard such ship or aircraft;
b) Against a ship, aircraft, persons or property in a place outside the
jurisdiction of any States.103
Civil Aviation: Developments in civil aviation and the increase in criminal
activity directed against aircraft have resulted in the need to introduce
specific regimes designed to clarify and extend jurisdiction in respect of such
unlawful acts. In broad terms, the problems arise in respect attacks on
aircraft on the ground, offences committed in flight, acts of hijacking and
wrongs directed against aircraft passengers. The serious threat posed both
to human life and the viability of international civil aviation has resulted in
a heightened level of international co-operation between states. Such efforts
at co-operation began in 1960s but became more important in the 1970s
with the increase in terrorist activity directed against aircraft. The first
tangible effort is to be found in the Tokyo Convention on Offences and
Certain Other Acts Committed on Board Aircraft (1963).104 The purpose of
the Convention was to ensure that those who committed criminal acts in
flight would not be able to escape prosecution. 103

Exemptions from jurisdiction: There appears to be no statutory provision as

such dealing with the immunity of foreign sovereigns, ambassadors and
other diplomatic representatives, and other cases dealt with by text-
writers.106
Foreign sovereigns: According to S. 2 of the Penal Code every person is liable
to punishment under the code of an offence, there are certain exceptions to
the general rule of criminal liability, for instance, law provides immunity to
foreign sovereigns. One sovereign being bound by obligations of the highest
character not to degrade the dignity of his nation, by placing himself or its
sovereign rights within the jurisdiction of another, can be supposed to enter
a foreign territory only under an express licence, or in the confidence that
the immunities belonging to his independent sovereign station, though not
expressly stipulated are reserved by implications, and will be extended to
him. 1 0 7

103. John O' Brien, International Law (2001) p.245.

104. Opened for signature 14 September 1963.
105. Supra note 103.
106. See Setalvad Common Law in India p. 152. Text-writers deal with Alien Enemy,
Warships, foreign armies etc. At present there is statutory provision regarding the
President and the Governor (Art. 361 of the Constitution); the former rulers of
native States (197A CrPC) and the U.N. officials under the United Nations
(Privileges and Immunities) Act, XLVI of 1947.
107. Per Marshall, CJ, in Schooner Exchange v. M. Faddon, (1812) 7 Chance. 116, 136, 137.
JURISDICTION 67

The real principle on which the exemption, of every sovereign from the
jurisdiction of every court, has been deduced is that the exercise of such
jurisdiction would be incompatible with his legal dignity and his absolute
independence of every superior authority. 108
Ambassadors: The immunity of an ambassador from the jurisdiction of the
courts of the country to which he is accredited is based upon his being the
representative of the independent sovereign state which sends him upon the
faith of his being admitted to be clothed with the same independence of and
superiority to all adverse jurisdiction as the sovereign authority whom he
represents would be. 109 Alien enemies cannot be tried by ordinary criminal
courts.
Warships: The domestic courts, in accordance with principles of international
law, will accord to the ship and its crew and its contents certain immunities.
These immunities 110 can in any case be waived by the national to which the
public ship belongs.
Where offences were committed by a shipping company which fell
under the IPC, it was held that Merchant Shipping Act, 1958 did not bar
proceedings under the Criminal Procedure Code, 1978. U1
It may also be considered whether it would not be appropriate to make
statutory provision in this behalf.

108. Per Brett, LJ in the Parleament Beige (1880) 5 PD 197, 207.

109. Ibid.
110. See, Ratan Lai & Dhirajlal, The Indian Penal Code (30th ed. 2004) p.2.
111. Unnikrishnan v. Divisional Inspector ofPolice, 2001 Cr LJ 4553 (Ker).