Extraterritorial Jurisdiction: BNS Section 1(4) vs IPC Section 3

The Statutory Provisions: Text and Comparison

Section 3 of the IPC reads: "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."

Section 1(4) of the BNS provides: "Any person liable, by any law for the time being in force in India, to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Sanhita for any act committed beyond India in the same manner as if such act had been committed within India."

The textual difference between the two is minimal but deliberate. Where the IPC used the expression "Indian law," the BNS has substituted "law for the time being in force in India." This is a refinement, not a revolution. The older expression "Indian law" was perhaps ambiguous about whether it included laws of Parliament enacted after independence or whether it was confined to pre-existing colonial statutes. The BNS formulation — "any law for the time being in force in India" — is broader and more precise. It covers all existing laws, including central legislation, state legislation, and any special or local law that may make extra-territorial acts punishable. The purpose and effect of the two provisions, however, are identical in every material respect.

The Underlying Philosophy: Why Should a Nation's Law Follow Its Subjects Abroad?

The rationale behind Section 3 of the IPC and Section 1(4) of the BNS rests on a foundational principle of criminal jurisprudence — that every sovereign State has a legitimate right to regulate and govern its own citizens wherever they may be. As Story's Conflict of Laws has observed, and as affirmed in the commentary on the BNS, every sovereign State can regulate the conduct of its citizens even if they are temporarily residing or travelling in foreign territories. The relationship between a citizen and the state does not dissolve the moment the citizen boards a plane to another country. Citizenship carries with it a continuing obligation of fidelity to the law, and the state, for its part, retains jurisdiction over the citizen's conduct even abroad, provided there is a law in force in India that makes the person amenable to trial there.

Both sections — Section 3 IPC and Section 1(4) BNS — are what lawyers call provisions of extraterritorial jurisdiction, as distinct from the intraterritorial jurisdiction that Section 2 IPC and Section 1(3) BNS deal with. They represent an extension of the arm of the law beyond the geographical limits of India, not an abandonment of the territoriality principle, but a deliberate supplement to it.

The Two Conditions That Must Be Satisfied

Section 3 of the IPC and its counterpart in the BNS are not blanket provisions that allow Indian courts to try anyone for anything done anywhere in the world. The section has a very specific and limited application, which requires two conditions to be simultaneously satisfied before it can be invoked.

First, there must be a law in force in India — whether the IPC/BNS itself, or any other statute — that makes the person liable to be tried for the act committed beyond India. The section does not itself create any offence. It is a procedural and jurisdictional provision: it says that if a person is already amenable to trial under some Indian law for an act done outside India, then that person shall be dealt with under the provisions of the Code as if the act had been done in India. As the Bombay High Court held in Rambharthi (1923 Bom LR 772) and as affirmed in Sheikh Haidar v Syed Issa (1939 Nag 241), Section 3 gives extraterritorial jurisdiction but the acts committed must amount to an offence under the Code itself.

Second, the person must have been, at the time of committing the offence, amenable to an Indian court — which ordinarily means they must be a citizen of India, or a person on a ship or aircraft registered in India, or in certain specified situations, a person whose act targeted a computer resource located in India. This is the critical limitation. The section applies to the case of a person who, at the time of committing the offence charged, was amenable to an Indian court — as the early court in Pirtai (1873 10 BHC Cr C 356) laid down and which has been reiterated ever since.

The Critical Distinction: "Every Person" versus "Any Person"

The Supreme Court in Mobarak Ali Ahmed v State of Bombay (AIR 1957 SC 857) made a perceptive observation that has great significance in understanding how Section 3 IPC (and by extension Section 1(4) BNS) is to be read in relation to Section 2 IPC. The Court pointed out that Section 2 of the IPC uses the expression "every person" — a phrase of the widest possible ambit that includes citizens and foreigners alike — whereas Section 3 uses the narrower expression "any person liable, by any Indian law, to be tried." The use of "any person" in Section 3 is not accidental. It signals a conditioned or qualified jurisdiction: not every person who commits an act outside India can be tried in India, but only those persons who, by reason of their status under Indian law, are already amenable to Indian courts for such an act. This is the dividing line between intra-territorial universality and extra-territorial conditionality.

A Legal Fiction: "As If Committed Within India"

The mechanical device by which Section 3 of the IPC and Section 1(4) of the BNS operate is what lawyers call a legal fiction. The section directs that the person shall be dealt with "in the same manner as if such act had been committed within India." Parliament, and before it the colonial legislature, could not literally transpose a crime from one territory to another; but it could direct courts to treat the extraterritorial act, for purposes of trial and punishment, exactly as if it had taken place within India. As the Kerala High Court observed in Remia v Sub-Inspector of Police, Tanur (1993 Cr LJ 1098), Section 3 of the IPC helps the authorities in India to proceed by treating the offence as one committed within India. No doubt it is by a legal fiction that such an assumption is made, but such a fiction is necessary for eminently practical purposes — otherwise, Indian citizens could escape the reach of the criminal law simply by crossing the border.

Consider a concrete illustration: A, an Indian citizen working abroad in Dubai, misappropriates funds of his Indian employer and transfers them to his personal account in Dubai. The misappropriation and breach of trust, if committed in India, would be punishable under Section 406 of the IPC or the corresponding provision in the BNS. By virtue of Section 3 IPC / Section 1(4) BNS, A can be dealt with according to the provisions of the Code as if the act of misappropriation had been committed in India. The courts of India are competent to try him when he is found within Indian territory.

The Landmark: Rao Shiv Bahadur Singh v State of Vindhya Pradesh

The Supreme Court's decision in Rao Shiv Bahadur Singh v State of Vindhya Pradesh (AIR 1953 SC 394) is one of the most instructive cases on the application of Sections 3 and 4 IPC read together. The accused, who was the Minister for Industries and the Secretary of the Industries Department of the then United State of Vindhya Pradesh, were alleged to have conspired and demanded illegal gratification at the Constitution House in Delhi — a place technically outside the jurisdiction of the State of Vindhya Pradesh. The Supreme Court held that Sections 3 and 4 of the IPC, read with Section 188 of the Criminal Procedure Code, clearly covered the field, and the conviction of the appellants — including for the extraterritorial offence — was not open to objection. The Court affirmed that when a person commits an offence partly within and partly without the Indian territories, provided the acts together amount to an offence under the Code, that person is amenable to trial.

When Citizenship Must Exist at the Time of the Act

One of the most consequential judicial pronouncements under this provision is Central Bank of India Ltd v Ram Narain (AIR 1955 SC 36), where the Supreme Court confronted the question of whether a person who was a foreigner at the time of the offence could be tried in India merely because he subsequently acquired Indian citizenship. Ram Narain, a resident of Multan (which became part of Pakistan after partition), had pledged goods to the Central Bank of India and then dishonestly sold them at Karachi on 9 November 1947. He later migrated to India and settled in Gurgaon. The bank sought his prosecution under Sections 380 and 454 of the IPC. The Supreme Court firmly held that the provisions of Section 4 of the IPC and Section 188 of the Cr PC had no application whatsoever if, at the time of the commission of the offence, the accused person was not a citizen of India. The fact that he had subsequently acquired Indian citizenship did not confer jurisdiction on Indian courts retrospectively. Jurisdiction cannot be created backwards by a subsequent change in the personal status of the accused.

This ruling has a direct bearing on the interpretation of Section 1(4) of the BNS as well. The test is always the citizenship or amenability of the person at the time of commission of the offence, not at the time of trial. Conversely, the Bombay High Court in Pheroze v State of Maharashtra (1964 2 Cr LJ 533) held that an Indian citizen who committed an offence outside India which was not an offence according to the laws of that foreign country would still be liable to be tried in India if it constituted an offence under the Indian law. The question was not what the law of the foreign country said, but what Indian law said about the act.

The Fatima Bibi Limitation

The decision in Fatima Bibi Ahmed Patel v State of Gujarat (AIR 2008 SC 2392) further sharpened the limits of Section 3 IPC / Section 1(4) BNS when applied to foreigners who commit offences abroad and later come to India. In that case, the appellant Fatima Bibi was a citizen of Mauritius. Her son was married to the complainant. The son and daughter-in-law were residing in Kuwait, and the alleged offences of cruelty were committed there. The Supreme Court held that since the accused was not an Indian citizen at the time of the commission of the offence in Kuwait, neither Section 4 of the IPC nor Section 188 of the Cr PC had any application. The proceedings were nullified. The principle is clear: Section 3 of the IPC — and equally Section 1(4) of the BNS — is not designed to make India a universal jurisdiction court. It only extends the reach of Indian law to those who are already bound by it.

The Procedural Dimension: Section 188, Cr PC and the Need for Sanction

The substantive provision of Section 3 IPC and Section 1(4) BNS must be read alongside the procedural mechanism provided in Section 188 of the Code of Criminal Procedure, 1973 (now corresponding to Section 209 of the Bharatiya Nagarik Suraksha Sanhita, 2023). Section 188 Cr PC provides that when an offence is committed outside India by an Indian citizen (whether on the high seas or elsewhere) or by any person on a ship or aircraft registered in India, such person 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. The proviso to Section 188 requires that no such offence shall be inquired into or tried in India without the previous sanction of the Central Government.

The question of whether the prior sanction is required even for investigation — as opposed to trial — has been a matter of some controversy across High Courts, but the prevailing and settled view, as affirmed in a series of Kerala High Court judgments including Remia v Sub-Inspector of Police and Muhammad Rafi v State of Kerala (2010 Cr LJ 592), is that police investigation does not require prior sanction of the Central Government. The sanction is required only at the stage of inquiry and trial. In Souda Beevi v Sub Inspector of Police (2012 Cr LJ 58), the same position was affirmed. The Supreme Court's ruling in Om Hemrajani v State of UP (AIR 2005 SC 392) further clarified that the scheme of Section 188 is designed to prevent jurisdictional objections by fugitives who have committed offences abroad: the victim may approach any court in India where the accused may be found, and the court's jurisdiction is established by the presence of the accused before it.

An Important Illustration: The Bigamy Case

The practical operation of Section 3 IPC and Section 1(4) BNS is well illustrated by the following example. A, an Indian Hindu male citizen with a wife and three children living in India, goes to the United States for higher studies and contracts a marriage with an American woman there. Bigamy — remarrying during the subsistence of a valid first marriage — is an offence under Section 82 of the BNS (corresponding to Section 494 of the IPC). Section 1(4) BNS ensures that when A returns to India, he is liable to be tried for bigamy under the Sanhita, exactly as if the second marriage had been contracted in India itself. However — and this is the crucial limitation — had A not been an Indian citizen at the time of the second marriage, or had A already relinquished his Indian citizenship, the provision would not apply.

What Section 1(4) BNS Does Not Do

It is important to be clear about the limits of this provision. Section 3 IPC / Section 1(4) BNS does not create any substantive offence — it is purely jurisdictional and procedural. It does not say that a person who commits an act outside India which is not an offence under any Indian law can be tried in India. The words "postulate the existence of a law that an act constituting an offence in India shall also be an offence when committed outside India," as the commentary on the IPC states. The participation in a child marriage by a citizen of India in a foreign country, for instance, was held not to be punishable in India in Sheikh Haidar v Syed Issa (1939 Nag 241), because the Child Marriage Restraint Act, 1929 contained no provision making such participation outside India an offence when committed by a citizen of India. Section 3 could only operate where some Indian law, independently of Section 3, made the person amenable to trial for that particular act.

Acts Done Partly Within and Partly Beyond India

A related situation that courts have addressed is where a criminal act is performed partly within India and partly outside. The principle, settled since Moulivie Ahmudoollah (1865 2 WR Cr 60), is that a person who is a citizen of India is liable to be tried by the courts of India for acts done by him partly within and partly without the Indian territories, provided the acts together amount to an offence under the Code. This is a natural corollary of the extraterritoriality provisions. The crime does not escape the law merely because one element of it was executed outside the border, as long as the cumulative effect constitutes an offence that Indian law recognises.