Under what circumstances may an offence committed outside India be tried as an offence committed in India?

Extraterritorial Jurisdiction: When an Offence Committed Outside India May Be Tried in India

The fundamental rule of criminal law is a territorial one — crime is local. A nation's courts ordinarily exercise jurisdiction only over acts committed within their own soil. Yet no civilised legal system can allow its citizens to step across a border, commit grave wrongs, and return home unscathed. Both the Indian Penal Code, 1860 (IPC) and its successor, the Bharatiya Nyaya Sanhita, 2023 (BNS), make careful exceptions to this territorial principle, extending the reach of Indian criminal law to certain offences committed beyond the country's geographical limits.

The Foundational Distinction

Before examining the circumstances in which an offence committed abroad may be tried in India, a basic distinction must be understood. When an offender commits an act outside India and is found within its limits, two options arise: first, he may be extradited — surrendered to the country where the offence was committed; second, he may be tried in India under the principle of extraterritorial jurisdiction. Extradition is governed by the Extradition Act, 1962, and is a sovereign, treaty-based act. Extraterritorial jurisdiction, on the other hand, is the internal exercise of criminal power by Indian courts over acts done abroad, and it flows from Sections 3 and 4 of the IPC (now consolidated under Section 1 of the BNS).

The Statutory Architecture: IPC Sections 3 and 4 / BNS Section 1

Section 3 IPC / Section 1(4) BNS: Trial by Virtue of Indian Law

Section 3 of the IPC provides that 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 the Code, "in the same manner as if such act had been committed within India." This is a legal fiction — the law treats a foreign act as though it occurred on Indian soil.

The critical precondition, however, is that there must already exist a law making the person liable to be tried. Section 3 does not itself create the offence; it merely prescribes the procedure once another law has declared the foreign act to be punishable. This was settled in Sheikh Haidar v Syed Issa (AIR 1938 Nagpur 235), where it was held that a child marriage contracted outside India was not punishable in India because neither the Child Marriage Restraint Act nor any provision of the IPC made it an offence when committed abroad — Section 3 alone could not extend jurisdiction without the prior foundation of a substantive law declaring the act punishable.

Section 4 IPC / Section 1(5) BNS: Extension to Specified Categories of Persons and Places

Section 4 of the IPC (reproduced in substance as Section 1(5) of the BNS) is the principal provision that affirmatively extends criminal jurisdiction extraterritorially. It does so across three distinct categories:

First: Any Citizen of India, in Any Place Without and Beyond India. The Code applies to every Indian citizen, wherever in the world the citizen may be. The rationale is grounded in the principle of personal jurisdiction — a sovereign state may regulate the conduct of its own citizens even when they travel abroad. If an Indian citizen commits what would be an offence under the Code, the mere fact that the act occurred outside India does not deprive Indian courts of jurisdiction. The illustration to the section makes this vividly clear: A, who is a citizen of India, commits a murder in Uganda. He can be tried and convicted of murder in any place in India in which he may be found.

Second: Any Person on Any Ship or Aircraft Registered in India, Wherever It May Be. This extends to any person — whether an Indian citizen or a foreign national — who commits an offence aboard an Indian-registered vessel or aircraft. The underlying principle is admiralty jurisdiction and is rooted in the classical notion that a ship on the high seas is, in legal contemplation, a "floating island" belonging to the nation whose flag it flies. Admiralty jurisdiction extends over offences committed on Indian ships on the high seas, offences committed on foreign ships in Indian territorial waters, and piracy.

Third: Any Person Targeting a Computer Resource Located in India. Added by the Information Technology (Amendment) Act, 2008, and carried forward in Section 1(5)(c) of the BNS, this is the most contemporary expansion. It extends Indian criminal jurisdiction to any person, anywhere in the world, who commits an offence targeting a computer resource located in India — regardless of the offender's nationality. This is a significant departure from the citizenship-based jurisdiction of the previous two limbs.

The Explanation to Section 4 (and BNS Section 1(5)) makes clear that the word "offence" in this context includes every act committed outside India which, if committed in India, would be punishable under the Code.

Landmark Case Laws That Illuminate the Doctrine

Mobarik Ali v State of Bombay (AIR 1957 SC 857)

This remains perhaps the most instructive case on extraterritorial jurisdiction. Mobarik Ali, a Pakistani national residing in Karachi, made false representations to complainants in Bombay through letters, telegrams, and telephone calls, inducing them to part with over five lakh rupees for a rice consignment that was never delivered. He was arrested in England, extradited, and prosecuted in Bombay under Section 420 IPC for cheating.

The Supreme Court upheld the conviction, holding that the corporal presence of the accused in India at the time of the offence is not a prerequisite. The offence was held to have been committed at Bombay, where the deception took effect, where the innocent persons were located, and where the money was parted with. This case established two enduring propositions: that an Indian court has jurisdiction against foreigners residing in foreign countries whose acts — connected with a transaction partly arising in India — produce their criminal effect in India; and that ignorance of Indian law is no excuse.

Lee Kun Hee v State of UP (2012 3 SCC 132)

The Supreme Court extended the principle further, holding 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. This confirmed that the territorial principle is not merely about physical presence but about the locus of the criminal effect.

Remia v Sub-Inspector of Police, Tanur (1993 Cr LJ 1098 Ker)

In this case, an Indian citizen was murdered by another Indian citizen in a foreign country, but the police refused to register an FIR on the ground that the offence occurred abroad. The Kerala High Court held that the refusal was illegal. Relying on Section 3 IPC, the court directed the police to register the crime and investigate, observing that Section 3 "helps the authorities in India to proceed by treating the offence as one committed within India." This case powerfully illustrates how the legal fiction in Section 3 is not a mere procedural technicality but a practical instrument of justice.

Fatima Bibi Ahmed Patel v State of Gujarat (AIR 2008 SC 2392)

This case imposed an important limitation. A mother-in-law who was a Mauritian citizen, and whose son and daughter-in-law resided in Kuwait, was implicated in a cruelty complaint filed in India. The Supreme Court held that if, at the time of commission of the offence, the accused was not a citizen of India, then neither Section 4 of the IPC nor Section 188 of the CrPC had any application whatsoever. A person who subsequently acquires Indian citizenship, or who was a foreigner at the time of the act, cannot be brought under the extraterritorial jurisdiction of Indian courts.

Thota Venkateswarlu v State of AP (AIR 2011 SC 2900)

The Supreme Court affirmed that offences committed in Botswana by an Indian citizen are amenable to the provisions of the IPC, subject only to the limitation imposed under the proviso to Section 188, CrPC, which requires the prior sanction of the Central Government before a court can take cognisance.

Acts Done Partly in India and Partly Abroad

A person who is a citizen of India is liable to be tried in India for acts done by him partly within and partly outside Indian territories, provided the acts amount together to an offence under the Code. This principle was affirmed as far back as Moulivie Ahmudoollah (1865 2 WR Cr 60). The criminal enterprise does not need to have been entirely consummated on one side of the border.

The Procedural Safeguard: Section 188, CrPC / Section 4, BNSS

Extraterritorial jurisdiction does not operate without procedural restraint. Section 188 of the CrPC (now correspondingly reflected in the Bharatiya Nagarik Suraksha Sanhita, 2023) provides that where an offence is committed outside India by a citizen of India, or by any person on an Indian ship or aircraft, the offender may be dealt with as if the offence had been committed at any place in India where he is found. However, no court shall take cognisance of such an offence except with the prior sanction of the Central Government. The word "found" in this provision means not where a person is discovered but where he is actually present — and as established in Savarkar's case (Vinayak D. Savarkar, 1910 13 Bom LR 296), even a person brought to India involuntarily can be said to be "found" within its limits and is subject to trial.

Abetment in India of Offences Outside India: Sections 108A IPC / 47 BNS

The Code extends its reach not only to the commission of offences abroad, but also to abetment in India of offences committed outside India. Section 108A of the IPC (now Section 47 of the BNS) provides that a person who, within India, abets the commission of any act outside India which would constitute an offence if committed in India, is guilty of abetment. The illustration makes the point concrete: A, in India, instigates B, a foreigner in country X, to commit a murder in that country. A is guilty of abetting murder.

Reciprocally, Section 48 of the BNS (a new addition, without a strict parallel in the old IPC) provides for abetment outside India for an offence to be committed in India, extending liability to those who instigate from across the border.

The Foreigner's Limitation

The acts of a foreigner committed entirely outside India's territory do not, as a general rule, constitute an offence under Indian law. A foreign national cannot be held criminally responsible under Indian courts for acts committed beyond its territorial limits — unless those acts fall under the third limb of Section 4 (computer resource targeting) or the act was initiated abroad and completed within India. As the law has long recognised, 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 (Chhotalal, 1912 14 Bom LR 147).

Summary of Circumstances

To draw the threads together, an offence committed outside India may be tried in India under the following circumstances:

• When an Indian law specifically makes the person liable to be tried in India for the act committed abroad (Section 3 IPC / Section 1(4) BNS)

• When the offender is a citizen of India at the time of the commission of the offence, irrespective of where in the world the act occurs (Section 4(1) IPC / Section 1(5)(a) BNS)

• When the offence is committed by any person aboard a ship or aircraft registered in India, wherever that vessel may be at the time (Section 4(2) IPC / Section 1(5)(b) BNS)

• When any person, regardless of nationality, commits an act outside India that targets a computer resource located in India (Section 4(3) IPC / Section 1(5)(c) BNS)

• When acts are done partly within and partly outside India, and together they amount to an offence under the Code

• When a person in India abets the commission of an act outside India which would be an offence if committed in India (Section 108A IPC / Section 47 BNS)

In each of these circumstances, Indian courts step in — not to violate the sovereignty of another nation, but to ensure that the protection of Indian law follows the Indian citizen, and that Indian territory and resources are not made the targets of crime with impunity from across its borders.