Principle of 'Found' & Extra-Territorial Jurisdiction in India

The Statutory Framework

Under the IPC, the extra-territorial reach was provided by Sections 3 and 4, while the procedural vehicle was Section 188 of the CrPC. Section 3 IPC applied to any person liable by any Indian law to be tried for an offence committed beyond India. Section 4 IPC extended the provisions of the Code to any citizen of India in any place without and beyond India, to any person on any ship or aircraft registered in India, and — by the amendment of 2009 — to any person anywhere in the world who commits an offence targeting a computer resource located in India.

Section 188 CrPC then provided the mechanism. It reads: "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." The proviso stipulates that no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.

Under the BNS, the same structure is preserved. Section 1(4) provides that any person liable by any law in force in India to be tried for an offence committed beyond India shall be dealt with according to the provisions of the Sanhita in the same manner as if the act had been committed within India. Section 1(5) extends the Sanhita to citizens of India in any place without and beyond India, to persons on ships or aircraft registered in India, and to persons anywhere committing offences targeting computer resources located in India. The word "found" as interpreted by a century of Indian judicial decision operates as powerfully under the BNS regime as it did under the IPC, for the BNS inherits the entire jurisprudential fabric woven around these provisions.

The Meaning of "Found": Actual Presence, Not Discovery

The courts in India have consistently held that the word "found" in Section 188 CrPC does not mean merely "discovered" or "traced." It means actually present — the court must find the accused standing before it. As stated by Ratanlal & Dhirajlal: "The word 'found' in Section 188, Cr PC, 1973 means not where a person is discovered but where he is actually present." This distinction may seem subtle, but it is crucial. Discovering that a person is in a particular city through intelligence inputs is not the same as the court finding him present within its jurisdiction. The court finds the accused when he actually appears before it — whether that appearance is voluntary or compelled.

PSA Pillai's commentary explains the matter further: "The word 'found' means the place where the court actually encounters the accused when it comes to take up the matter." The implication is significant — a complainant in Delhi may file a complaint against an accused who committed an offence against him in Dubai. That accused may later be arrested in Chennai while on a visit. The Chennai court, or the Delhi court if the accused is brought there, would be the court that "finds" him. In Om Hemrajani v State of Uttar Pradesh (AIR 2005 SC 392), the Supreme Court observed comprehensively: "The scheme underlying Section 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 Court went further and held that the convenience here is that of the victim, not of the accused. A complainant may file his complaint in any court in India that is otherwise competent, and the court which finds the accused before it — whether the accused appeared voluntarily under process or was brought involuntarily — would be the competent court under Section 188.

How the Person Came to India: Does It Matter?

This is perhaps the most striking aspect of the principle. Indian courts, drawing on common law foundations, have firmly held that the manner in which the accused came to be present in India is entirely irrelevant to the court's jurisdiction to try him. He may have come voluntarily. He may have been extradited. He may have been brought to India through illegal means — kidnapped, deceived, or forcibly transported. None of this defeats jurisdiction. The court looks only at whether the accused is before it, not at the journey that brought him there.

Ratanlal & Dhirajlal state this with precision: "A man brought to a place against his will can be said to be found there. When a man is in the country and is charged before a Magistrate with an offence under the Penal Code, it will not avail him to say that he was brought there illegally from a foreign country." This rule rests on a pragmatic foundation. If courts were required to investigate and adjudicate the legality of every extradition, every arrest, and every manner of conveyance before they could exercise jurisdiction, the administration of criminal justice against fugitives would become impossibly cumbersome and easily manipulated.

The Supreme Court affirmed this in Om Hemrajani when it held: "It does not matter whether he comes voluntarily or in answer to summons or under illegal arrest. It is enough that the court should find him present when it comes to take up the matter." This statement is the clearest judicial articulation of the principle: the court asks only — is the accused here? Everything else is irrelevant to the threshold question of jurisdiction.

The Savarkar Case: The Foundational Authority

The authority most prominently associated with this principle in Indian law is Emperor v Vinayak Damodar Savarkar (1910, 13 Bom LR 296). Vinayak Damodar Savarkar, the celebrated revolutionary and nationalist, had been arrested in England on charges of sedition and abetment of murder connected with the assassination of a British official in India. While being brought back to India under police escort, the ship carrying him stopped at Marseilles in France. Savarkar escaped from custody, swam ashore, and sought refuge in France. The French police, however, handed him back to the British police officers who had originally been transporting him. He was brought back to Bombay and committed for trial by the Special Magistrate at Nasik.

Savarkar challenged the legality of his committal for trial on the ground that he had been brought to India through an irregular and arguably unlawful process — his handover by the French police to British officers was done without proper legal extradition procedures, and his original escape meant that he had briefly been at large on French soil. The Bombay High Court rejected this challenge comprehensively. The Court held that the contention that the accused had been brought into the country illegally would be of no consequence. He was found before the court. That was sufficient. Whether he escaped, whether he was improperly handed over by French authorities, whether the extradition formalities were complied with — none of these factors defeated the jurisdiction of the Indian court once it found him present before it.

This was followed and affirmed in Feroze v State of Maharashtra (1964, 2 CrLJ 533, Bombay), where the court reiterated that appearance before a court — however compelled — constitutes being "found" for the purposes of jurisdiction. In Sahebrao Bajirav v Suryabhan Ziblaji (AIR 1948 Nagpur 251), the Nagpur High Court held that even when a person appeared before a court after receiving summons, the very fact of his appearance meant he was "found" there, and the court's jurisdiction was complete.

An Illustration of the Principle at Work

Consider this scenario. An Indian citizen working in Bahrain embezzles funds from his employer in Manama. He flees to India, entering through Chennai airport. The employer files a complaint with the police in his hometown, Hyderabad, where the accused has taken shelter with relatives. The Hyderabad police register a case and arrest the accused. He is produced before a Magistrate in Hyderabad.

Can the Hyderabad court try the accused? Section 4 IPC (Section 1(5) BNS) applies because the accused is an Indian citizen who committed an offence outside India. Section 188 CrPC provides the procedural mechanism. The accused is "found" in Hyderabad because the court finds him present there. The manner of his return — whether he came voluntarily fearing detection, or was deported, or was escorted — does not affect jurisdiction. The Hyderabad court is a competent court. Central Government sanction under the proviso to Section 188 CrPC would be required before the inquiry or trial proceeds, but not before investigation.

The Sanction Requirement: A Procedural Limit

The principle of "found" operates at the level of jurisdiction — it determines which court can try the accused. But it is important to note the procedural limitation that Section 188 CrPC imposes: the proviso states that no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government. This has been the subject of considerable judicial debate. The Kerala High Court in Remia v Sub-Inspector of Police, Tanur (1993 CrLJ 1098) held that the prior sanction was required only for inquiry and trial, and not for the preliminary stage of investigation. The Division Bench of the same court in Muhammad Rafi v State of Kerala (2010 CrLJ 592) took the same view, holding that the sanction could even be obtained at the pre-trial stage. This position was also affirmed in the Delhi High Court in Saleem-ud-Din v State (ILR 1971 (1) Delhi 432).

PSA Pillai summarises the settled position: "What is prohibited in Section 188 CrPC is only inquiry and trial without previous sanction of the Central Government. Investigation, including the examination of witnesses, search of places, and seizure of things, and the formation of opinion as to whether a charge-sheet should be filed, are not prohibited or controlled by the proviso to Section 188." The accused, once found in India, is thus amenable to arrest, investigation, and the full machinery of criminal procedure — the Central Government's sanction is needed only to cross the threshold into formal inquiry or trial.

Venue Within India: Convenience of the Victim

Section 188 CrPC operates at another level as well — it determines not only the fact of India's jurisdiction, but also the venue of the trial within India. Since the accused can be tried in any place "at which he may be found," the court at that place has jurisdiction. In Om Hemrajani v State of Uttar Pradesh (AIR 2005 SC 392), the Supreme Court, after reviewing all the relevant decisions, laid down the rule that a complainant may file his complaint before any court in the country that is otherwise competent, and that the court before which the accused appears — voluntarily or under process — would be the competent court. The inconvenience of the accused in being required to face trial in a distant court does not override the convenience of the victim. This is a rule that reflects the deeper policy of Section 188 — to prevent fugitives from exploiting procedural technicalities to defeat prosecutions.

The BNS, by consolidating the provisions of Sections 1 to 5 of the IPC into a single omnibus Section 1, and by building upon the body of judicial interpretation that developed around these provisions, has preserved and indeed reinforced every aspect of this jurisprudence. Whether the accused is an Indian citizen tried under Section 1(5)(a) BNS, a person on an Indian ship or aircraft under Section 1(5)(b), or a person anywhere in the world targeting an Indian computer resource under Section 1(5)(c), the foundational principle remains unchanged: the court that finds him present before it is the court with jurisdiction to try him. Where he came from, and how he came to be there, are questions that belong to extradition law and international relations — not to the jurisdiction of the criminal court.