Territorial and Extra-Territorial Operation of the BNS: Sections 1, 3 and 4 with Jurisdiction Principles and Landmark Cases

A murder is committed in Delhi: clearly the Bharatiya Nyaya Sanhita applies. But what about an Indian citizen who commits fraud while living in Dubai? A foreigner who hijacks an Indian aircraft over international waters? A cyber-criminal operating from abroad who defrauds victims in India? A terrorist attack planned in one country and executed in India? A crime committed on an Indian ship on the high seas? The question of when and where a criminal law applies is one of the most fundamental in jurisprudence. Every penal code must define its reach: to whom it applies, where it applies, and how far its writ extends beyond national borders. The Bharatiya Nyaya Sanhita, 2023, defines its territorial and extra-territorial operation through Sections 1, 3, and 4. Section 1 establishes the general territorial extent. Section 3 addresses intra-territorial jurisdiction and general explanations. Section 4 provides the extra-territorial reach - the power to punish offences committed outside India by Indian citizens, on Indian ships and aircraft, and by persons targeting computer resources located in India. This module walks through the territorial principle, the extra-territorial provisions, the jurisdictional bases, and the leading cases including Mobarik Ali Ahmed and the modern cyber-jurisdiction framework.

1. Introduction

The question of jurisdiction

Every criminal law must answer three fundamental questions:

• To whom does the law apply (persons)?
• Where does the law apply (territory)?
• How far beyond national borders does the law reach (extra-territoriality)?

These questions of criminal jurisdiction are foundational. A law that could not define its reach would be unenforceable and would create conflicts with other legal systems.

Territorial vs extra-territorial

Criminal jurisdiction operates on two broad principles:

• Territorial: the law applies to offences committed within the territory of the state, regardless of the nationality of the offender.
• Extra-territorial: the law applies to specific offences committed outside the territory, based on specific connecting factors (nationality, flag, target).

The BNS framework

The BNS defines its operation through:

• Section 1(2): territorial extent (whole of India).
• Section 1(3): every person liable for offences within India.
• Section 1(4): extra-territorial application.
• Section 1(5): computer resource jurisdiction.
• Section 3: intra-territorial framework and explanations.
• Section 4: extension of the Code to extra-territorial offences.

2. The Territorial Principle

Section 1(2): extent to whole of India

The territorial extent:

• The BNS extends to the whole of India.
• This includes all states and union territories.
• Post the abrogation of Article 370, it also applies to Jammu and Kashmir.

Section 1(3): every person liable

The territorial principle in Section 1(3):

• 'Every person' - citizens and foreigners alike.
• Liable for acts or omissions 'within India'.
• No exemption based on nationality for offences committed within India.
• A foreigner who commits a crime in India is fully liable under the BNS.

The meaning of 'India'

For the purposes of territorial jurisdiction, 'India' includes:

• The landmass of India (all states and UTs).
• Territorial waters (extending 12 nautical miles from the baseline).
• The airspace above Indian territory.
• Indian ships and aircraft (through the flag principle, discussed below).

3. Intra-Territorial Jurisdiction

Intra-territorial jurisdiction covers offences committed within India. Key principles:

• Any person (citizen or foreigner) is liable for offences committed within India.
• No diplomatic or nationality exemption (except specific diplomatic immunity under international law).
• The place where the offence is committed determines the jurisdiction of the specific court.
• Where parts of an offence occur in different places, jurisdiction may lie in multiple places.

Diplomatic immunity: an exception exists for diplomats who enjoy immunity under the Vienna Convention on Diplomatic Relations and the Diplomatic Relations (Vienna Convention) Act, 1972. However, this is immunity from prosecution, not an exemption from the law's application; the diplomat's home state may prosecute, or immunity may be waived.

4. The Extra-Territorial Principle

Section 1(4): the extra-territorial reach

The three bases

The extra-territorial reach rests on three bases:

• Nationality principle: Indian citizens abroad.
• Flag principle: Indian ships and aircraft anywhere.
• Protective/cyber principle: offences targeting computer resources in India.

The rationale

The rationale for extra-territorial jurisdiction:

• Citizens carry their allegiance and legal obligations wherever they go (nationality principle).
• Ships and aircraft are floating/flying extensions of national territory (flag principle).
• The state must protect its interests and residents from offences originating abroad (protective principle).
• Modern cyber-crime crosses borders and requires extra-territorial reach.

5. The Nationality Principle: Citizens Abroad

Section 1(4)(a) applies the BNS to offences committed by Indian citizens abroad:

• An Indian citizen who commits an offence anywhere in the world may be tried under the BNS.
• The offence must be one that is punishable under the BNS.
• The citizen carries their obligation to Indian law wherever they go.

Illustrations:

• An Indian citizen commits murder in another country: may be tried under the BNS in India.
• An Indian citizen commits fraud abroad: may be tried under the BNS.
• An Indian citizen participates in a conspiracy abroad affecting India: may be tried under the BNS.

The nationality principle is significant for offences that may not be adequately punished in the foreign country, or where the foreign country does not prosecute. It ensures that Indian citizens do not escape accountability by committing offences abroad.

6. The Flag Principle: Ships and Aircraft

Section 1(4)(b) applies the BNS to offences committed on Indian ships and aircraft, wherever they may be:

• Any person (citizen or foreigner) on an Indian-registered ship or aircraft is subject to the BNS.
• This applies wherever the ship or aircraft is located - on the high seas, in foreign waters, in foreign airspace.
• The ship or aircraft is treated as a 'floating/flying island' of Indian territory.

The flag principle (also called the 'admiralty jurisdiction' for ships) is a well-established principle of international law:

• A ship on the high seas is under the jurisdiction of the flag state.
• An aircraft in flight is under the jurisdiction of the state of registration.
• This ensures that crimes on ships and aircraft do not fall into a jurisdictional vacuum.

Illustrations:

• A murder on an Indian ship on the high seas: BNS applies.
• A theft on an Indian aircraft over foreign territory: BNS applies.
• An assault on an Indian ship in a foreign port: BNS applies (though the coastal state may also have jurisdiction).

7. The Cyber-Jurisdiction: Computer Resources in India

Section 1(4)(c) is a modern addition applying the BNS to offences committed abroad targeting computer resources in India:

• Any person, anywhere in the world, who commits an offence targeting a computer resource located in India.
• This addresses the reality of cyber-crime that crosses borders.
• A hacker operating from abroad who attacks Indian computer systems is subject to the BNS.

This provision reflects the protective principle - the state's power to punish offences that harm its interests, even where the offender is abroad. In the digital age, computer resources located in India are a protected interest, and offences targeting them attract Indian jurisdiction regardless of where the offender is located.

Illustrations:

• A hacker in another country breaches an Indian bank's servers: BNS applies.
• A cyber-fraudster abroad defrauds victims through computer resources in India: BNS applies.
• A ransomware attack from abroad on Indian systems: BNS applies.

The Information Technology Act, 2000 (Section 75) also provides extra-territorial application for cyber offences, operating alongside the BNS framework.

8. Section 4 BNS: Extension of the Code

Section 4 provides the mechanism for dealing with extra-territorial offences:

• A person who commits an extra-territorial offence may be dealt with as if the offence was committed within India.
• The person may be tried at any place in India where they are found.
• The offence is treated as an intra-territorial offence for procedural purposes.

The corresponding procedural provisions in the BNSS (Section 208, formerly Section 188 CrPC) provide:

• Where an offence is committed outside India by an Indian citizen (or on an Indian ship/aircraft), it may be dealt with as if committed in India.
• But the previous sanction of the Central Government is required for such prosecution.
• The trial may take place at the place where the accused is found or as the Central Government may direct.

9. Mobarik Ali Ahmed v State of Bombay (1957)

Mobarik Ali Ahmed established a crucial principle:

• A person may be liable for an offence committed in India even if they were physically abroad.
• What matters is where the offence (or its essential elements/consequences) occurred, not where the accused was located.
• This is the 'effects doctrine' - jurisdiction based on where the effects of the crime are felt.
• Significant for cross-border fraud, cyber-crime, and other offences with cross-border elements.

The Mobarik Ali principle is particularly important in the digital age, where offenders may operate entirely from abroad while their crimes take effect in India.

10. Jurisdictional Principles in International Law

The BNS jurisdictional framework reflects established principles of international criminal jurisdiction:

The territorial principle is the primary basis of jurisdiction. The nationality, flag, and protective principles extend jurisdiction for specific connecting factors. The universality principle (for crimes like piracy) is addressed through specific statutes like the Maritime Anti-Piracy Act, 2022.

11. Sanction and Procedural Requirements

The exercise of extra-territorial jurisdiction is subject to procedural safeguards:

• Section 208 BNSS (formerly Section 188 CrPC): the previous sanction of the Central Government is required before an extra-territorial offence can be inquired into or tried in India.
• This ensures that extra-territorial prosecutions are subject to executive oversight.
• It prevents indiscriminate prosecution of offences with only tenuous connections to India.
• The trial may take place where the accused is found or as directed by the Central Government.

The sanction requirement is significant:

• It reflects the sensitivity of exercising jurisdiction over offences committed abroad.
• It allows the government to consider diplomatic and international relations implications.
• Prosecution without the required sanction is invalid.

12. Landmark Cases and Consolidated Judgments

Consolidated Landmark Judgments

• Mobarik Ali Ahmed v. State of Bombay, AIR 1957 SC 857. Consequences-based liability.
• Central Bank of India v. Ram Narain, AIR 1955 SC 36. Citizenship at time of offence.
• Ajay Aggarwal v. Union of India, (1993) 3 SCC 609. Conspiracy with Indian nexus.
• R.M.D. Chamarbaugwala v. Union of India, AIR 1957 SC 628. Territorial nexus.
• Lee Kun Hee v. State of Uttar Pradesh, (2012) 3 SCC 132. Foreign national jurisdiction.
• Republic of Italy v. Union of India, (2013) 4 SCC 721. Maritime jurisdiction (Enrica Lexie).
• State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722. Foreigners bound within jurisdiction.
• Fatma Bibi Ahmed Patel v. State of Gujarat, (2008) 6 SCC 789. Limits over foreigners.
• Sartaj Khan v. State of Uttarakhand, (2022) SC. Modern cross-border framework.
• Purushottamdas Dalmia v. State of West Bengal, AIR 1961 SC 1589. Conspiracy jurisdiction.
• L.N. Mukherjee v. State of Madras, AIR 1961 SC 1601. Framework for offence location.
• Om Hemrajani v. State of Uttar Pradesh, (2005) 1 SCC 617. Framework for trial location.
• Thota Venkateswarlu v. State of Andhra Pradesh, (2011) 9 SCC 527. Extra-territorial trial framework.
• Remia v. Sub-Inspector of Police, (1993) Ker HC. Framework for citizen offences abroad.
• Samaruddin v. Assistant Director of Enforcement, (1995) Ker HC. Framework for extra-territorial economic offences.

Frequently Asked Questions

Does the BNS apply to foreigners who commit crimes in India?

Yes. Section 1(3) BNS provides that 'every person' shall be liable for offences committed 'within India'. The phrase 'every person' includes both citizens and foreigners. This reflects the territorial principle of criminal jurisdiction: the law applies to all persons for offences committed within Indian territory, regardless of their nationality. A foreigner who commits a crime in India is fully liable under the BNS and may be prosecuted in Indian courts. The only significant exception is diplomatic immunity under the Vienna Convention on Diplomatic Relations (via the Diplomatic Relations Act, 1972), which provides immunity from prosecution to diplomats, though the law still technically applies to them and their home state may prosecute or immunity may be waived. In State of Maharashtra v Mayer Hans George (1965), the Supreme Court held that foreigners are bound by Indian law while within Indian jurisdiction, including in transit.

Can an Indian citizen be tried for a crime committed abroad?

Yes. Section 1(4)(a) BNS applies the BNS to offences committed by any citizen of India in any place beyond India. This is the nationality principle: Indian citizens carry their obligation to Indian law wherever they go. An Indian citizen who commits an offence anywhere in the world may be tried under the BNS in India, provided the offence is punishable under the BNS. This is significant for offences that may not be adequately punished in the foreign country, or where the foreign country does not prosecute. However, there are procedural requirements: under Section 208 BNSS (formerly Section 188 CrPC), the previous sanction of the Central Government is required before an extra-territorial offence can be tried in India. Also, per Central Bank of India v Ram Narain (1955), the person must have been an Indian citizen at the time of the offence.

What did Mobarik Ali Ahmed v State of Bombay (1957) decide?

In Mobarik Ali Ahmed v State of Bombay, AIR 1957 SC 857, the accused, a Pakistani national in Karachi, induced a person in Bombay to part with money through fraudulent misrepresentations made by telephone, telegram, and letters. The accused was never physically present in India. The Supreme Court held that the accused was liable under the IPC because the offence of cheating was completed in India (where the victim parted with the money and where the effect of the fraud occurred). The Court held that the physical presence of the accused in India is not necessary; what matters is where the offence (its essential elements and consequences) occurred. This is the 'effects doctrine' - jurisdiction based on where the effects of the crime are felt. It is particularly important in the digital age, where offenders may operate from abroad while their crimes take effect in India.

Does the BNS apply to crimes on Indian ships and aircraft?

Yes. Section 1(4)(b) BNS applies the BNS to offences committed by any person on any ship or aircraft registered in India, wherever it may be. This is the flag principle: an Indian-registered ship or aircraft is treated as a 'floating or flying extension' of Indian territory. It applies to ANY person (citizen or foreigner) on the ship or aircraft, and applies WHEREVER the ship or aircraft is located - on the high seas, in foreign waters, in foreign airspace. Illustrations: a murder on an Indian ship on the high seas attracts the BNS; a theft on an Indian aircraft over foreign territory attracts the BNS. The flag principle is a well-established principle of international law, ensuring that crimes on ships and aircraft do not fall into a jurisdictional vacuum. It reflects the principle that the flag state has jurisdiction over its vessels.

Does the BNS apply to cyber crimes committed from abroad?

Yes. Section 1(4)(c) BNS is a modern addition applying the BNS to offences committed by any person in any place beyond India targeting a computer resource located in India. This addresses the reality of cross-border cyber-crime. A hacker operating from abroad who attacks Indian computer systems, a cyber-fraudster abroad who defrauds victims through computer resources in India, or a ransomware attack from abroad on Indian systems - all attract the BNS regardless of where the offender is located. This reflects the protective principle: the state's power to punish offences that harm its interests, even where the offender is abroad. In the digital age, computer resources in India are a protected interest. The Information Technology Act, 2000 (Section 75) also provides extra-territorial application for cyber offences, operating alongside the BNS framework.

What sanction is required for extra-territorial prosecution?

Under Section 208 BNSS (formerly Section 188 CrPC), the previous sanction of the Central Government is required before an offence committed outside India (by an Indian citizen, or on an Indian ship/aircraft) can be inquired into or tried in India. This procedural safeguard is significant: (i) it subjects extra-territorial prosecutions to executive oversight; (ii) it allows the government to consider diplomatic and international relations implications; (iii) it prevents indiscriminate prosecution of offences with only tenuous connections to India; (iv) prosecution without the required sanction is invalid. The trial may take place at the place where the accused is found or as directed by the Central Government. The sanction requirement reflects the sensitivity of exercising jurisdiction over offences committed abroad, balancing the state's interest in accountability against considerations of international comity and diplomatic relations.

Related Topics on The Legal Bridge

For a fuller picture, read these companion notes on adjacent doctrines and provisions:

• General Explanations under BNS: the definitional framework in Sections 2 and 3 that supports jurisdiction.
• Criminal Conspiracy under BNS: Section 61 that frequently raises cross-border jurisdiction questions.
• Information Technology Act, 2000: Section 75 that provides parallel extra-territorial jurisdiction for cyber offences.
• BNSS Section 208: the procedural provision requiring Central Government sanction for extra-territorial prosecutions.