Intraterritorial Jurisdiction: Section 1(3) BNS & Section 2 IPC

Intraterritorial Jurisdiction: The Principle That Every Person Within India Is Answerable to the Law

The most elementary proposition of Indian criminal law is also its most powerful: the moment a person — any person — stands on Indian soil and commits an act that the law forbids, that person becomes answerable to the criminal courts of India. This principle, known as intraterritorial jurisdiction, has been the cornerstone of both the Indian Penal Code, 1860 and the Bharatiya Nyaya Sanhita, 2023, and it remains entirely unchanged in the passage from one to the other.

The Statutory Text: A Comparison

Section 2 of the IPC reads: "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."

Section 1(3) of the BNS, which replaces and carries forward this provision, reads in identical terms: "Every person shall be liable to punishment under this Sanhita and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India."

The language is virtually the same across a span of more than 160 years. The BNS, in enacting this provision, consciously retained it in the same form, signalling that the foundational philosophy of criminal jurisdiction — grounded in the locality of the offence rather than the nationality of the offender — was too well-settled to disturb.

The Principle Unpacked: What Does "Every Person" Mean?

The phrase "every person" in Section 2 IPC and Section 1(3) BNS is not to be read narrowly. It comprehends all persons without limitation — irrespective of nationality, allegiance, rank, status, caste, colour, or creed. It covers the Indian citizen as much as the foreigner who has entered the country for a visit. It includes the tourist, the diplomat's domestic staff, the foreign businessman, and the illegal migrant, subject always to the exceptions discussed later.

As recognised in Mobarak Ali v State of Bombay (AIR 1957 SC 857), a well-settled principle of criminal jurisprudence is that the exercise of criminal jurisdiction depends upon the locality of the offence committed, and not upon the nationality or locality of the offender. A foreigner who enters Indian territory and thus accepts the protection of Indian laws virtually gives an assurance of fidelity and obedience to those laws and submits himself to their operation. Once a person steps into India, the Code and the Sanhita attach to every act or omission contrary to their provisions.

"Act or Omission": The Scope of Criminal Liability

The provision speaks of liability for "every act or omission contrary to the provisions thereof." Two important elements deserve attention.

First, the word "act" in Section 2(1) of the BNS (corresponding to Section 33 of the IPC) denotes as well a series of acts as a single act. Criminal liability does not require one dramatic singular action — a continuing course of conduct, each element of which constitutes part of the prohibited behaviour, is equally captured by the provision. As Section 3(7) of the BNS (corresponding to Section 33 of the IPC) further clarifies, wherever the causing of a certain effect, or an attempt to cause that effect, by an act or by an omission is an offence, causing that effect partly by an act and partly by an omission is the same offence. The illustration provided in the Code is instructive: A intentionally causes Z's death, partly by illegally omitting to give Z food, and partly by beating Z. A has committed murder.

Second, and significantly, liability under the provision is "not otherwise" — meaning the Code (and the Sanhita) is exhaustive and self-contained. The rules of the common law cannot be resorted to for inventing exemptions that are not expressly enacted. As the Supreme Court affirmed in Mobarik Ali v State of Bombay, the Indian Penal Code exhaustively codifies the law relating to offences with which it deals. There is no residuary stream of liability running parallel to it.

The Foreigner Within India

One of the most important applications of the intraterritorial principle is to foreigners who commit offences on Indian soil. The law is clear and admits no ambiguity: a foreigner who commits an offence within India is guilty and can be punished. It is no defence for a foreigner that the act was not an offence in his own country, though this may be a matter to be considered in mitigation of punishment — as held in the old English case of R v Esop (1836), where the accused was indicted for committing an unnatural offence on board an Indian ship lying in St. Catherine's docks, and his plea that the act was not an offence in Baghdad — his country of origin — was firmly rejected.

The same proposition was affirmed by the Supreme Court in State of Maharashtra v Mayer Hans George (AIR 1965 SC 722), where a foreigner who departed from Zurich without knowledge of a notification restricting gold imports into India was held liable. The plea of ignorance of Indian law was rejected. Delinquents are deemed to have knowledge of Indian law from the date of its publication in the Official Gazette. The maxim ignorantia juris non excusat — ignorance of law is no excuse — applies with full force even to foreigners, though the court may take their unfamiliarity into account while calibrating punishment.

Corporal Presence: A Nuanced Reading

The intraterritorial principle does not require that the offender be physically present in India at every moment of the offence. What it requires is that the essential ingredients of the offence must occur within the territory of India. Mobarak Ali v State of Bombay settled this matter conclusively. There, a Pakistani national sitting in Karachi made false representations by letters and telephone calls to persons in Bombay, inducing them to part with over five lakh rupees. He was never physically in India during the commission of the fraud. Yet the Supreme Court held that the offence was committed at Bombay, since the deception took effect there, the innocent victims were situated there, and the money was parted with there. His physical absence in India was of no consequence. The criminal act, in a legal sense, was completed within India.

This principle was extended further in Wheeler v Emperor (AIR 1928 Sind 161), where it was held that a person residing in England who starts the train of his crime in foreign territory — say, by conspiring with persons in India to commit an offence — and completes or perfects the offence within India through an innocent agent or through the mechanism of post, telegraph, or telephone, is triable by Indian courts when found within the jurisdiction. In Lee Kun Hee v State of UP (2012 3 SCC 132), the Supreme Court affirmed that Indian courts have jurisdiction against foreigners residing in foreign countries, provided their acts are connected with a transaction — or part of a transaction — arising in India.

The Meaning of "Within India": The Territorial Boundaries

The phrase "within India" in Section 2 of the IPC corresponds to "within India" in Section 1(3) of the BNS and requires some attention. Under the BNS, the definition of India, as defined by Article 1 of the Constitution, comprises the territories of the States, the Union territories specified in the First Schedule, and such other territories as may be acquired. Under the IPC as it stood, Section 18 defined India as the territory of India excluding the State of Jammu and Kashmir — a special status that is now no longer applicable since the BNS, which came into force on July 1, 2024, makes no such exception. The BNS applies uniformly to the whole of India.

Territorial limits include India's territorial waters — fixed by the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 at 12 nautical miles. The principle cuius est solum, eius est usque ad coelum et ad inferos — that whoever owns the soil owns it up to the sky and down to the centre of the earth — further means that the column of air resting above Indian territory is also Indian territory for these purposes. Offences committed on Indian territory, in its airspace, or in its territorial waters, are all offences committed "within India."

Acts Partly Within and Partly Outside India

A connected question arises when a criminal act is partly performed within India and partly outside. Section 3(7) of the BNS addresses part of this by clarifying that an effect caused partly by an act and partly by an omission constitutes the same offence. More broadly, it is settled law that a person who is a citizen of India — or indeed any person who commits acts partly within and partly outside Indian territory — is liable to be tried in India, provided the acts together amount to an offence under the Code.

The Saving Clause: Where the Code Yields

Section 1(6) of the BNS (corresponding to Section 5 of the IPC) provides that nothing in the Sanhita shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors, or airmen in the service of the Government of India, or the provisions of any special or local law. This is the generalia specialibus non derogant principle — special legislation is not to be disturbed by the general provisions of the penal code. Where a special or local law governs a particular subject-matter, and there is a conflict between that law and the Sanhita, the special law prevails. However, as clarified in the commentary on the BNS, where there is no conflict, both may operate simultaneously, though no person can be punished under both for the same act on grounds of double jeopardy.

Immunities: Persons Exempt from Criminal Jurisdiction

The universality of "every person" in the provision is tempered — by international convention, constitutional sanction, and legislative immunity — by a set of recognised exceptions. Neither the IPC nor the BNS extinguishes these immunities, which exist by operation of other laws.

Foreign sovereigns cannot be prosecuted in Indian courts. The principle was lucidly expressed by Marshall CJ in Schooner Exchange v M'Faddon (1812): one sovereign, being in no respect amenable to another, enters a foreign territory only in the confidence that immunities belonging to his independent sovereign station will be extended to him. Diplomatic agents are exempt by virtue of the Vienna Convention on Diplomatic Relations, 1961 (given force of law in India through the Diplomatic Relations Vienna Convention Act, 1972 and the United Nations Privileges and Immunities Act, 1947). The criminal immunity of a diplomatic agent flows from Article 31(1) of that convention. The President of India and the Governors of States are, under Article 361 of the Constitution, exempt from criminal proceedings during their term of office.

Alien enemies, in respect of acts of war, cannot be tried by ordinary criminal courts — they fall under military law. However, this immunity does not extend to ordinary crimes; an alien enemy who commits theft or cheating in India would still be triable by ordinary criminal courts. Foreign armies present on Indian soil by consent of the Indian Government are exempt from criminal jurisdiction. So also, men-of-war and warships of a foreign state in Indian waters are exempt, though this immunity may be waived by the nation to which the ship belongs, as held in Chung Chi Cheung (1939 AC 160).

Notably, in Justice Ripusudan Dayal (Retd.) v State of MP (2014 4 SCC 473), the Supreme Court clarified that members of a Legislative Assembly do not enjoy any privilege that would immunise them from criminal prosecution. The privileges of the legislature are those rights without which the House cannot perform its legislative functions — they do not exempt members from the operation of general criminal law.

The Exhaustive Character of the Code

It is worth pausing to appreciate what the phrase "and not otherwise" in Section 2 of the IPC — retained in Section 1(3) of the BNS — actually achieves. No person can be held criminally liable in India except under the provisions of the Sanhita or a special law. This is a guarantee of legality and a protection against arbitrary prosecution. The principle of nullum crimen sine lege — no crime without law — is embedded in this formulation. Whether an act is an offence is determined entirely on the basis of the law as it existed on the date of the act; Article 20(1) of the Constitution guards against conviction under ex-post facto laws, and this constitutional guarantee stands alongside the Code's own provisions.

In summary, the intraterritorial principle as stated in Section 2 of the IPC and carried forward in Section 1(3) of the BNS is a simple but profound declaration: Indian territory is a zone of legal accountability. Whoever enters it, whether an Indian citizen or a foreign visitor, becomes subject to the full discipline of the criminal law — with no exception granted on grounds of nationality, and no immunity conferred on grounds of ignorance.