EXTENT AND OPERATION OF THE INDIAN PENAL CODE

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This article is written by Antara Roy of 4^th Semester of LL.M (Criminal Law and Criminology) of Kazi Nazrul University, Asansol, West Bengal, an intern under Legal Vidhiya

ABSTRACT

The complete legislative structure that oversees criminal acts in India is known as the Indian Penal Code (IPC). It remains the cornerstone of criminal law in the nation despite being passed in 1860 during British colonial authority. The IPC offers a comprehensive list of criminal offenses, their definitions, and associated penalties. There were numerous conflicting and contradictory choices made by various presidencies when the British acquired control of India. In order to create the Indian Penal Code, which finally went into effect on January 1st, 1862, Law Commissions were created. The IPC is divided into 23 chapters, each of which focuses on a distinct type of crime, from crimes against people (such as murder and assault) to crimes against property (such as theft and robbery) to crimes against the state (such as sedition and terrorism). The code is a flexible instrument for dealing with different types of illegal behavior because it has a broad definition of crimes. The presumption is one of the core tenets of the IPC of innocence until guilt is established. It describes the processes and safety measures for the examination, conviction, and penalization of offenders. The code also includes clauses that consider an individual’s age, mental state, and other circumstances that may influence their level of guilt, indicating some latitude in how criminal law is applied.

Keywords- Indian Penal Code, Crimes, Jurisdiction, Legislative Structure, Citizen of India, Criminal laws

Introduction

The Code’s title and the scope and extent of its application are both stated in Section 1. Any individual who commits an offense on Indian soil is held criminally responsible under Section 2. Infractions committed outside of India are subject to punishment under Sections 3 and 4. Section 5 is a saving provision in contrast. The definition of jurisdiction is the area in which a court of law may exercise its authority over lawsuits, appeals, actions, processes, etc. The Indian Penal Code, of 1860, which became a territorial law on January 1, 1862, is one of the most extensive penal codes in the entire world. Except for the State of Jammu & Kashmir, it covers the entirety of India. The phrase “except the State of Jammu and Kashmir” was removed by Act 34, also known as the Jammu and Kashmir Reorganization Act of 2019, Sections 95 & 96, and Chapter V (effective October 31, 2019). Due to this ordinance of 2019, the Indian Penal Code became retroactively applicable to Jammu and Kashmir as of October 31, 2019. In the case of Hriday Nath Roy vs. Ram Chandra[1] Several attempts have been made to define the term “Jurisdiction,” which has been declared to be “The power to hear and decide issues of law and fact,” according to an assessment of the cases in the books. the power to hear and decide a legal issue; the process by which three judicial authorities recognize and decide a matter; the power to hear and decide the issue at issue between the parties to a lawsuit; the power to adjudicate and settle disputes between parties; and the power to execute judgments. the ability to investigate the facts, use the law, reach a decision, and carry it out. The judgment described above has set a significant precedent for jurisdiction cases or lawsuits.

BEFORE THE INDIAN PENAL CODE-

Before the East India Company created the Indian Penal Code, the Mohammedan law was in effect in India. The Islamic criminal code applies to Muslims and Hindus alike. The non-Muslim people were referred to as “Zimmees” and were exempt from Muslim law. The Hindus’ employment of their own laws to govern their own causes was not left unaffected.[2] non-Muslims were given access to topics such as contracts, sales, exchanges, and barter. Additionally, if either party to a contract were subject to Islamic law, Mohomedan law would take precedence. As far as the Hindu Laws were concerned, the sporadic functioning Brahmanic courts adhered to the teachings of Manu and other Hindu Lawgivers. Based on a set rule, the jurists who implemented the Mohammedan Law made sure that all citizens were treated equally and fairly. The systems already in place in India at the time the Indian Law Commission began work on developing a Penal Code for India were very dissimilar from one another. The Mahomedan Laws have replaced Hindu criminal law. The Mahomedan legislation was overly focused on regulations. All three Presidency of Bombay, Madras, and Calcutta had different penal laws. The Penal Law was created as a result. The draft Penal Code was proposed by C.H. Cameron and D. Eliott, two law commissioners. On May 30, 1951, the updated edition was sent to the Supreme Court judges in Calcutta.[3]

IN BRITISH ARA–

In the year 1862, British India officially adopted the Indian Penal Code. The Princely States had their own pre-existing courts and legal systems and did not follow Indian penal laws. From the 1940s till the present, these states have been subject to the Indian Penal Code.[4] Many academics believe further codes must be added to the Indian Penal Code for it to be consistent. The Ranbir Penal Code (RPC)[5], which is unique to Jammu and Kashmir, is based on the INDIAN PENAL CODE. As a result, Jammu and Kashmir is covered by a distinct clause, and Indian law does not apply there. The Indian Penal Code was given to Pakistan after the British left, and some of it is still in effect there. The Pakistan Penal Code is what it has become. Following Bangladesh’s independence, some provisions of the Indian Penal Code are also in effect there. The colonies of Burma, Sri Lanka (formerly Ceylon), Singapore, Brunei, and portions of Malaysia were all developed by the British. As a result, the Indian Penal Code is applicable in parts of these nations as well.

CHAPTER ONE

There are five categories of jurisdiction in Indian law: The scope and application of the Indian Penal Code are outlined in Chapter 1 of the code. About time, place, and person, it is applicable. As a result, every individual subject to the jurisdiction of the offense is liable for it regardless of the offender. Every person under the jurisdiction of the offense is culpable for the offense regardless of the offender, and the punishment is applied regardless of the offender’s rank, creed, or caste.

Section 1- Title of the Code and its scope of application. This law will be known as the Indian Penal Code and (applies to all of India, apart from the State of Jammu and Kashmir). It states that the law would be known as the Indian Penal Law (hence referred to as IPC) and that it will be in effect across India. The Ranbir Penal Code was the primary criminal code that applied to the state before the repeal of the provisions of Article 370, and as a result, the IPC was not applicable to the State of Jammu and Kashmir before that.

Subject-matter of Jurisdiction – This type restricts the use of the courts’ authority to a certain category of cases or subject matter.

Territorial Jurisdiction – This category limits courts’ ability to wield their authority.

Pecuniary Jurisdiction – This form of jurisdiction deals with the court’s limitations on the monetary value or expense of lawsuits or proceedings.

Original Jurisdiction – This form enables courts to hear freshly filed cases.

Appellate Jurisdiction –

This kind of jurisdiction enables courts to revisit or review rulings rendered by inferior courts. Other forms of jurisdictions include concurrent jurisdiction, admiralty jurisdiction, probate jurisdiction, and summary jurisdiction in addition to these five primary types. Admiralty jurisdiction will be discussed in relation to extraterritorial jurisdiction later in this article. This article’s primary concern is the territorial jurisdiction provided by the Indian Penal Code, of 1860.

A Brief Overview-

Indian Penal Code (IPC) Section 1,[6] declares that the Code would be applicable across India. With the Supreme Court’s 2019 ruling on Article 370 of the Indian Constitution[7]. The state of Jammu and Kashmir would be subject to the IPC as well. The IPC makes no mention of the fact that it solely applies to Indian people, nevertheless. This is noteworthy because other Acts and legal provisions make contrary claims. The provisions for the IPC’s extraterritorial and interterritorial jurisdiction are outlined in Sections 2, 3, and 4 of the IPC. The IPC is not the only legislation addressing this, though. Both the Information Technology Act of 2000 (IT Act) and the Code of Criminal Procedure (CrPC) contain provisions governing their extraterritorial jurisdiction. Any crime committed by an Indian national, by someone on a ship or aircraft registered in India, or by someone who attacks an Indian computer resource outside of Indian territory is referred to as extra-territorial jurisdiction. Therefore, if any of the individuals listed above commit a crime outside of India, they will be held accountable under the IPC. Simply put, the IPC establishes provisions for crimes committed both inside and outside of Indian territory and holds those responsible accountable for punishment in accordance with the IPC.

Jurisdiction-

It is a facet of state sovereignty that refers to legislative, executive, and judicial competence. The ability or authority of a court to hear, decide, and exercise any judicial power regarding a case by taking cognizance of the things brought before the court is known as jurisdiction. The two types of court jurisdiction are as follows:

Inherent of Jurisdiction: The court is not authorized to hear the case in this circumstance;

Local jurisdiction: This phrase describes the boundaries of a court’s Jurisdiction.

The Indian Penal Code, 1860’s provisions

Application Of the Code Within Territories (Section 2)

The Punishment of Offenses Committed Within India is covered in Section 2. It states that everyone will be held accountable for any actions or inactions that violate the Code’s rules. The unlawful act or omission must have been performed within India in order to subject a person to liability under this Code. Therefore, as can be seen above, a State’s territorial jurisdiction reaches out into the sea for up to twelve miles. Land and the section of the sea lapping its coasts up to twelve miles out into the sea are both included in the territorial jurisdiction. This is referred to as a State’s maritime territory. As of the Government of India’s notification on September 30, 1967, it was expanded to twelve miles in India. In Bombay High Court, Emp. V Kastya Rama, (1871),[8] Within three miles of the coast, the accused sailed into the water and took several of the complainant’s fishing stakes. The local criminal court was found to have jurisdiction over the offenders, the Code applied, and the offense constituted mischief.

(Section 2 ) Every Person is mentioned in –

The primary purpose of the IPC is to punish crimes committed by natural beings. According to Section 2 of the Code, “Every Person” who commits an offense on Indian soil is subject to its jurisdiction, regardless of caste, creed, nationality, religion, status, or sex. In Mobarak Ali vs. State of Bombay[9]A Pakistani national living in Karachi deceived the complainant into paying more than Rs. 5 lakhs to the accused’s agents in Bombay so that rice could be sent from Karachi to India in accordance with the contract. However, the rice was never given out. The culprit was detained when he was in England and sent to Bombay via extradition procedures, where he was tried and found guilty of cheating under Section 420 of the Penal Code. Even though the accused was not physically present in Bombay at the crucial moment, the Supreme Court maintained the conviction and ruled that the offence was committed there by the defendant. It comprises both citizens and non-citizens, as well as foreigners who are only passing through. However, it excludes non-judicial individuals like corporations or companies because they cannot be indicted or charged with crimes like murder, dacoity, robbery, adultery, bigamy, rape, etc. as only humans can commit such crimes. On the grounds of vicarious liability, a corporation is obviously responsible for the illegal acts or inactions of its directors, agents, or employees [10]as well as for judicial disobedience. Thus, the Code provides for punishment for foreigners who enter India and commit crimes. The foundation of Section 2 is the idea that everyone present on the territory of a nation is subject to the laws of that nation and must be held accountable for any crimes they may conduct while there that are against those laws.

But several groups of people fall outside the purview of the law’s criminal Punishment Provisions:

The President and the Governor of the State are free from civil and criminal procedures, according to Article 361 of the Indian Constitution. According to the principles of international law, a foreign sovereign cannot be penalized under the code.[11]

First off, it would be inconsistent with the sovereign’s independence and sovereignty for the courts of one nation to have jurisdiction over a foreign sovereign of another nation. Secondly, a sovereign cannot be expected to enter a foreign country without an express permit or without the assurance that the privileges and immunities associated with his independent sovereign status will be extended to him, even if they are not expressly stated. Regardless of the justification for the principle, the States do grant Sovereign immunity based on the concepts of comity and reciprocity.

Schooner Exchange v. M. Faddon[12] – According to Chief Justice Marshall, a Sovereign can only be presumed to enter a foreign territory with an express license or with the assurance that his independent sovereign nation’s immunities, which are impliedly reserved and will be extended to him, will not be diminished by his placing himself or its sovereign rights under the jurisdiction of another.

The UNO’s officials and Institutions[13]– An intergovernmental organization is the UN. Every nation is home to its branches and related institutions. While performing their tasks, the organization’s executives and its institution are not subject to the jurisdiction of criminal courts.
Ambassadors: International law forbids the use of the code against an ambassador. [14] The criminal courts in India have no jurisdiction over ambassadors. They share the same immunity as the State or Sovereign they represent. The immunity is advantageous to them both.
Alien Enemies: The military members of foreign opponents cannot be tried for their war crimes in India’s criminal courts. The criminal court would view an enemy immigrant as tribal if he committed a crime unrelated to the war, such as theft or cheating. Any actions of war will be subject to martial law.
Foreign Army: While on the territory with the consent of one State, armed forces from other States are exempt from state jurisdiction.
Warships– of one State are free from the jurisdiction of the State whose territory they are in when they are in international seas. This follows international law[15]. This immunity may be waived by a State or country.

Extra-Territorial Operation of The Code-

Concerning the extraterritorial application of the code, see Sections 3 and 4. As was said above, the offense had to be committed on Indian soil in order to bring about accountability under Section 2. But even if they committed crimes outside of India, some of the individuals listed in Section 4 of the Code are subject to trial by Indian courts.

According to Sections 3 and 4, an offense committed outside of India may be prosecuted as an offense committed within India in one of the following three scenarios:-

any citizen of India outside of or outside of India;
anyone traveling on a vessel or aircraft with an Indian registration, wherever it may be;
Any person who commits an offense outside of India that is intended to harm an Indian computer resource.

The term “offence” as used in this Section refers to every act that, if done in India, would be punished by the Indian Penal Code.

If a crime is committed outside of India yet the perpetrator is located within India:

He could be extradited to face charges in the nation where the crime was committed, or India (extraterritorial jurisdiction) may hold his trial.

Concerning a Foreigner’s Liability for Crimes Committed in India

Even though he was not physically present in India when the crime was committed, a foreigner who commits an offense in India is nevertheless subject to Indian law and will be punished in accordance with the Act’s guidelines. In the case of, the court Nazar Mohammad v. State [16] declared that a foreign national who violates Indian law will be prosecuted in accordance with Indian law; however, the offender may claim ignorance of Indian law in order to have the penalty reduced. The only need for the applicability of Sections 3 and 4 is that the wrong must occur in; the offender’s actual presence is not necessary. Even when the offender is outside of India, the Section simply requires that the crime be committed there.[17]

Extradition-

Extradition refers to the handing over of a wanted felon by one State to another, where he is subject to punishment. Whether a person is a citizen or an immigrant, such a surrender is a political act carried out in accordance with a treaty or ad hoc agreement between the two States. The idea behind it is that crimes should not go unpunished. Therefore, it is required by the principle of international cooperation that each State provide the other with all aid in punishing those who commit such crimes. The procedure for requesting a person’s extradition from India is outlined in the Extradition Act of 1962. In the exercise of their extraterritorial jurisdiction, Indian courts have the authority to trial crimes committed, On Land; On the High Seas; and On Aircraft.

On Land-

In accordance with Sections 3 and 4 of the IPC, Indian courts have the authority to recognize offenses committed outside of Indian territory. In this regard, it is also pertinent to refer to the Criminal Procedure Code’s rules, which provide that when an offense is committed by: 1) any citizen of India or outside of India; 2) anyone aboard a ship or aircraft with an Indian registry, wherever it may be. Emperor v. Vinayak Damodar Savarkar[18] Savarkar, the suspect, was being transported from London to Bombay by police personnel. He attempted to flee while traveling through Marseilles, France but was apprehended again, taken to Mumbai, and charged by the Special Magistrate in Nasik. The validity of the trial was upheld. The fact that Savarkar was transported to India against his will was irrelevant. If an Indian citizen commits activities that are committed in part inside and in part outside of India that together constitute an IPC offense, the Indian courts have the authority to bring charges against him.

On the High Seas-

India’s High Courts in Mumbai, Kolkata, and Chennai, as well as the Presidency Magistrates, have the authority to try crimes committed at sea. Admiralty Jurisdiction is the legal system used to adjudicate crimes committed at sea. It is based on the idea that a ship in international waters is a floating island that belongs to the country whose flag is flying.

Such Jurisdiction Includes:

Infringements made on Indian ships. Such offenses may be committed on the high seas, in a river, or at a location where local government officials from another country may have concurrent jurisdiction.
Foreign ships breaking the law in Indian territorial seas.
Piracy- All nations are offended by Jure Gentium. Any unlawful act of assault, detention, or depredation carried out for personal benefit by those aboard a private ship or private aircraft and directed against a ship, people, or property on the high seas constitutes this offense.

Because a pirate is someone who does harm to the ships of all nations, he can be tried anywhere, regardless of his nationality. In the instance of Piracy Jure Gentium, foreign pirates are subject to admiralty jurisdiction.

On an Aircraft: Any offense committed by any person on an aircraft registered in India, no matter where it may be, is equally covered by the IPC’s provisions.

Foreigner’s Responsibilities:

A foreigner who is not connected to India in any way, either as an Indian citizen, as a passenger on an Indian ship, or in any other way, is not eligible to be tried in Indian courts for an offense that was committed outside of India. Therefore, one of the key components of the Indian Penal Code is jurisdiction, which must be established in Indian courts before a person can be held accountable for an offense committed inside India or outside India. This is done to ensure that no one escapes punishment and that the accused is treated fairly.

In essence, Section 2 of the IPC states that everyone is subject to criminal prosecution without regard to their gender, race, nationality, or caste, with some exceptions that are in accordance with international law. As a result, anyone who violates the IPC while in India will be subject to prosecution on Indian soil and before Indian courts.

However, there is a flaw in that the code does not provide a deadline for prosecuting the accused; instead, the Criminal Procedure Code specifies a specific deadline for the courts to take cognizance of an offense. The Latin proverb “Nullum Tempus occurrit regi,” which states that a state’s right to prosecute an accused is not prohibited by the passage of time, serves as the foundation for the decision to not set a time limit for the prosecution of major offenses.

When can the right to a private defence include someone who killed someone else?

The right to private defence refers to the ability to defend one’s self and possessions from the unlawful aggression of others. It is rooted in the fundamental idea that helping one another is a man’s first responsibility. If the offense that prompts the exercise of the right is of any of the categories hereinafter listed, the right of private defence of body extends, subject to the limitations indicated in the preceding section, to the wilful infliction of death or of any other harm upon the aggressor.

An Assault that could legitimately give rise to the concern that death would otherwise follow from the attack;
Any assault that could fairly give rise to the concern that it will otherwise result in great harm;
Assault committed with the aim to rape;
An assault carried out with the goal of satisfying unnatural lust;
An attack with the purpose to kidnap or abduct someone,
An attack with the goal of holding someone against their will in a situation where they would fairly believe they cannot get help from the authorities to get them out.
Any throwing or administration of acid, or attempt to throw or administer acid, which gives rise to a justifiable fear that such an action may result in great harm[19].

The assailant’s death may be brought about by using the right of private defence of the body[20], but this right is subject to restrictions outlined in Section 99. In other words, the anxiety must be justified and the amount of force used must be proportionate, or not more than is required. The inflictor is not protected if it is unreasonable.

Karamat Hussain vs. Emperor,[21] Here, the accused interfered and killed her husband in order to protect/save his sister from a vicious beating by him. It was decided that in these circumstances, the accused was entitled to a private defence.

State of U.P vs. Gajey Singh[22] When the defendant was struck in the head with a sharp object and then fired one gunshot, killing one of the attackers, the court granted him the right to private defence.

The Core Four Requirements:-

Moreover, four cardinal conditions must be met before taking someone’s life,

The person accused must not be at fault for initiating the interaction;
Being in imminent danger of great bodily injury or of losing one’s life, whether actual or apparent, to the point that one genuinely believes that it is necessary;
No feasible or safe means of escaping by retreat;
A requirement for killing the attacker.

Worry About Death- The suspicion must be logical. It depends on the facts and whether it was reasonable. The way in which the weapon was used, the nature of the assault, and other extenuating circumstances must all be considered in making this determination.[23]

Punishment: Whether or whether there was a justifiable fear of death will be taken into consideration by the court when deciding the punishment.

Section 5- This Act shall not apply to certain legislation. Nothing in this Act shall interfere with or impair any special or local laws or the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors, or airmen in the service of the Government of India.[24]

According to Section 2 of the IPC, any conduct or omission that violates the Code’s provisions will only be punished in accordance with those requirements. The primary justification for the inclusion of such a provision was that there were numerous other laws in force in the nation at the time the IPC came into effect. However, since many of the previous laws have since been repealed, this IPC provision is no longer necessary and can be removed from the statute. The Code must include provisions for cyberspace as well in order to maintain its comprehensive nature considering the new notion that has emerged as a result of technological advancement.[25]

Conclusion-

When dealing with people in both the public and private sectors, criminal laws are laws that are very important. The Indian penal code was created specifically to achieve this objective. The Indian Penal Code is applicable throughout the whole country of India, except for the state of Jammu & Kashmir. Foreign and Indian nationals are both impacted. Internal or external territory can be included in its range. The prosecution of offenses committed at sea is also permitted by this law. A legal entity must be given the practical authority or dominion known as the jurisdiction in order to exercise its duty to administer justice within a certain sphere of authority. Legal bodies include a court, a political or administrative body, or a law enforcement organization. the limits of A judicial authority’s jurisdiction is the area within which it has the authority to hear cases, appeals, and other legal proceedings. The concept of jurisdiction was created so that the courts would only hear matters that fell within the bounds of their respective legal jurisdiction, both financially and geographically. Laws relevant to a jurisdiction are frequently made by the legislature, and these laws aid in the administration of just punishment. In the long run, a more structured and orderly legal system will improve the quality of life in the country.

References:

Code of Criminal Procedure, B.B.Mitra, 21st edition, Kamal Law House Kolkata, Vol 1
Indian Penal Code, B.M. Gandhi’s Fourth Edition
R.V. Kelkar’s Criminal Procedure
Ratanlal & Dhirajlal, Commentary on The Code of Criminal Procedure, 18th enlarged Ed, Vol.1
Ratanlal & Dhirajlal, Law of Crimes, Enlarged Edition
Takwani, Criminal Procedure, 3rd Ed. Lexis Nexis
The Code of Criminal Procedure, Batuklal
The Code of Criminal Procedure, S.N.Misra, Central law Publication
https://edumound.com, Last visited on 7.9.2023
https://blog.ipleaders.in/jurisdiction-under-ipc, Last visited on 7.9.2023

[1] Hriday Nath Roy v. Ram Chandra, AIR 1921 Cal 34.

[2] John A. Banningan, The Hindu Code Bill, Far Eastern Survey, Vol. 21, No. 17 (Dec. 3, 1952), pp. 173-176.

[3] Atul Chandra Patra, An Historical Introduction to The Indian Penal Code, JOURNAL OF THE INDIAN LAW INSTITUTE, VOL. 3, NO. 3 (JULY-SEPT., 1961), pp. 351-366.

[4] R. Knox-Mawer, The Indian Penal Code: A Reappraisal and Re-Enactment, THE INTERNATIONAL AND COMPARATIVE LAW QUARTERLY Vol. 4, No. 4 (Oct. 1955), pp. 548-550.

[5]https://www.legalpedia.co.in

[6] Sec. 1, Indian Penal Code, 1860.

[7] Art. 370, Constitution of India.

[8] Emp. V Kastya Rama, (1871) 8 Bom H.C.R. 63,

[9] Mobarak Ali vs. State of Bombay[9] AIR 1957 SC 857

[10] State of Maharashtra v. Syndicate Transport Co.(P) Ltd., AIR 1964 Bom 195

[11] United Nations Privileges and Immunities Act, 1947

[12] Schooner Exchange v. M. Faddon [(1812) 7 Cranch 116]

[13] Walker, Oxford Companion to Law (1980) 600

[14] United Nations Privileges and Immunities Act, 1947

[15] United Nations Privileges and Immunities Act, 1947

[16] Nazar Mohammad v. State