Jurisdiction Over Foreigners: Acts Completed in India (BNS/IPC)

The General Rule and Its Limitation

The foundational rule as stated in the authoritative commentaries of Ratanlal & Dhirajlal, in their treatment of Section 4 of the IPC and Section 1 of the BNS, is elegantly simple: "The acts of a foreigner committed by him in territory beyond the limits of India do not constitute an offence against the Penal Code, and consequently, a foreigner cannot be held criminally responsible under that Code by the tribunals of India for acts committed by him beyond its territorial limits." The reason is equally simple — a foreign subject owes no allegiance to India and is not ordinarily bound by its laws while he lives under the jurisdiction of another sovereign.

The crucial question, however, is not always where a person stood when he acted, but where the offence was completed. As Ratanlal & Dhirajlal record: "When it is sought to punish a person, who is not an Indian subject, as an offender in respect of a certain act, the question is not where was the act committed, but was that person, at the time when the act was done, within the territory of India?" This appears to be the general rule for pure extraterritorial acts of foreigners. But the law immediately carves out a critical exception: "But if a foreigner in a foreign territory initiates an offence which is completed within Indian territory, he is, if found within Indian territory, liable to be tried by the Indian Court within whose jurisdiction the offence was completed." This exception, traced to the Bombay High Court decision in Chhotalal (1912, 14 Bom LR 147), is the heart of the doctrine.

The Statutory Framework

Under the IPC, the foundational provision is Section 2, which declares that "every person" shall be liable for every act contrary to the Code of which he shall be guilty "within India." The Supreme Court in Mobarik Ali Ahmed v State of Bombay (AIR 1957 SC 857) explained that the phrase "every person" is comprehensive and admits of no limitation on grounds of nationality, caste, creed or rank. It includes foreigners, whether they are physically present in India or not, provided the offence is committed within India. Critically, the Court distinguished Section 2 from Sections 3 and 4 — while Sections 3 and 4 use the expression "any person" in the context of extra-territorial offences, Section 2 uses "every person" to sweep in anyone whose criminal act, or the completion of it, occurs within Indian territory. Where the consequence of an act committed by a foreigner outside India ensues in India, he can be tried in India — this proposition is affirmed consistently across the commentaries of both Ratanlal & Dhirajlal and PSA Pillai.

Under the BNS, the same framework is preserved in Section 1(3), which reads that every person shall be liable to punishment under the Sanhita for every act or omission contrary to its provisions of which he shall be guilty within India. The intra-territorial principle survives unchanged from the IPC regime. Section 1(5) further extends jurisdiction to any person targeting a computer resource located in India, a modern statutory recognition of the same objective territorial principle in the context of cybercrimes. The Explanation to Section 1(5) defines "offence" to include every act committed outside India which, if committed in India, would be punishable — and this definition, read purposively, reinforces that the locus of criminal completion determines jurisdiction.

The Landmark Authority: Mobarik Ali Ahmed

The single most important case in this area of law remains Mobarik Ali Ahmed v State of Bombay (AIR 1957 SC 857). Mobarik Ali was a Pakistani national based in Karachi. He had entered into a contract with a complainant at Goa for the supply of 1,200 tonnes of rice. He initiated a sustained deception through letters, telephone conversations, telegrams, and emissaries — all operating from Karachi — inducing the complainant at Bombay to part with over five and a half lakh rupees. He never came to India. He did not deliver the rice. He was eventually arrested in London in connection with another case and extradited to Bombay.

The Supreme Court upheld his conviction for cheating under Section 420 IPC (now Section 318 BNS). The Court ruled that the corporal presence of the offender at the place of the offence is not required. The criminal liability for an offence arises on the basis of the laws applicable in the country where the offence is committed — and here, the entire transaction was completed in India because it was the Bombay complainant who parted with money at Bombay. The Court observed that a foreigner who commits an offence within India is guilty and can be punished as such without any limitation as to his corporeal presence in India at the time. The offence of cheating was committed at Bombay, not at Karachi. The accused had merely used the post, telephone, and telegraph as instruments — and the use of such innocent mechanical contrivances or agents does not move the locus of the crime to the foreign country from which he operated.

The Wheeler Principle and the Train of Crime

Long before Mobarik Ali, the Sind High Court had settled the position in Wheeler v Emperor (AIR 1928 Sind 161). The Court stated: "When a foreign resident in England who does not come within the provisions of Section 4 of the Indian Penal Code, conspires in England with persons in British India to commit an offence under the Penal Code — that is to say, starts the train of his crime in foreign territory and perfects and completes his offence within British India — he is triable by a British Court when found within its jurisdiction. The use by him of an innocent agent or a mechanical contrivance, such as post, telegraph or telephone, for the purpose of effecting his purposes being immaterial." This beautifully articulates the distinction between the initiation and completion of a criminal act, and establishes that the completion-point determines jurisdiction.

Similarly, in Saleem-ud-Din v State (ILR 1971 (1) Delhi 432), the Delhi High Court affirmed that a foreign national who enters into a conspiracy abroad and then visits India in furtherance of that conspiracy comes within the jurisdiction of Indian courts. Conspiracy is a continuing offence — it does not cease the moment the agreement is formed in foreign territory. It persists and is renewed with every act done in furtherance of the common design. The moment any such act is done in India, or the conspirators enter Indian territory, Indian courts may lawfully arrest and try.

The Essential Conditions of Liability

Three conditions must be satisfied before a foreigner who initiates a crime abroad can be tried in India for its completion here.

First, the offence must have been completed within Indian territory. Mere preliminary acts done in India — a letter received, a rumour spread — do not suffice unless they constitute the crucial ingredient that makes the offence complete. In Chhotalal (1912, 14 Bom LR 147) — the earliest Indian authority — the Bombay High Court accepted precisely this test: the relevant question is where the offence was completed, not where it was initiated.

Second, the accused foreigner must be found within Indian territory. This is the indispensable procedural requirement. India's courts exercise in personam jurisdiction — they cannot try an absentee accused in a criminal case merely because the offence was completed here. Section 2 of the IPC and Section 1(3) of the BNS operate upon persons who are amenable to the court's process. The court may "find" the accused through his voluntary appearance in answer to summons, through extradition, or through his arrest — but the accused must be physically present before the court. In Om Hemrajani v State of Uttar Pradesh (AIR 2005 SC 392), the Supreme Court clarified that the word "found" in Section 188 of the CrPC means the place where the court actually encounters the accused when it takes up the matter, and it does not matter whether the accused arrived voluntarily or was brought there under compulsion.

Third, the act must constitute an offence under the IPC or BNS. Acts that are criminal in foreign law but not in Indian law, or conversely acts lawful in India but for which foreign states seek prosecution, do not attract Indian jurisdiction on this ground. The basis of liability is always the Indian statute, as stated by Ratanlal & Dhirajlal: "The criminal liability for an offence arises on the basis of the laws applicable in the country where the offence is committed, and not on the basis of laws applicable in the country of the person committing it."

An Illustration

Suppose a national of a foreign country, sitting in Dubai, sends a series of false emails to a businessman in Delhi, representing that he has arranged a lucrative foreign contract and requesting advance payment. The Delhi businessman parts with forty lakhs of rupees by transferring the amount to a bank account named by the Dubai operator. The deception is practised from abroad, but the victim is deceived in Delhi, and the delivery of property — the crucial completing act of cheating — occurs in Delhi. The foreign national has committed an offence within India. If he subsequently enters India for any purpose — whether for business, travel, or otherwise — and is found here, the courts of Delhi would have jurisdiction to try him for cheating under Section 318 BNS (formerly Section 420 IPC). The Supreme Court's ruling in Lee Kun Hee, President of Samsung Corporation v State of Uttar Pradesh (2012 (3) SCC 132) extended and affirmed this principle — Indian courts have jurisdiction against foreigners residing in foreign countries whose acts are connected with transactions arising in India.

The Limit of the Doctrine: Acts Purely External

The doctrine has its proper boundary. A foreign subject who resides in a foreign territory and whose acts never reach completion within India cannot be tried here merely because he had some connection with an Indian party. As Ratanlal & Dhirajlal record: "A foreign subject, resident in a foreign territory instigating the commission of an offence which, in consequence, is committed in Indian territory, is not amenable to the jurisdiction of an Indian Court if the instigation has not taken place in India." This statement from the old case of Musst. Kishen Kour (1878 PR No. 20 of 1878) must, however, be read carefully. What matters in modern jurisprudence is whether the completed offence — taken as a whole — can be said to have occurred in India. If the instigation from abroad forms the decisive final link that brings the offence to completion, and that completion occurs in India, then jurisdiction may still be asserted, as Mobarik Ali itself demonstrates. It is only where the acts performed abroad remain preliminary, incomplete or insufficient to constitute any recognised Indian offence that jurisdiction fails.

Continuing Relevance Under the BNS

The BNS brings one addition of exceptional significance: Section 1(5)(c), which extends the Sanhita to any person in any place without and beyond India committing an offence targeting a computer resource located in India. This is the statutory embodiment of the objective territorial principle for the digital age. A hacker in Eastern Europe who breaches a banking server in Mumbai, a fraudster in Southeast Asia who deploys phishing software targeting Indian users, or a ransomware operator targeting Indian corporations — all fall within the reach of Indian criminal law under the BNS, regardless of their nationality and regardless of their physical location. The offence, by its very nature, is completed within India where the computer resource targeted is located. This represents a sophisticated extension of the same principle that Wheeler, Chhotalal and Mobarik Ali established over a century ago for postal and telephonic deceptions.

The thread running from the old Bombay High Court's Chhotalal to the Supreme Court's Mobarik Ali and forward into Section 1(5)(c) of the BNS is continuous and coherent: India will not allow its territory to be the theatre of a completed crime while the criminal shelters behind the shield of a foreign border. When the harm lands here, so does the jurisdiction.