Section 2 of the Indian Penal Code, 1860.
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.
This section deals with the intra-territorial operation of the Code. It makes the Code universal in its application to every person in any part of India for every act or omission contrary to the provisions of the Code. It prescribes no fixed time within which prosecution should be launched, as it follows the maxim nullum tempus occurrit regi.
Every person is made liable to punishment, without distinction of nation, rank, caste or creed, provided the offence with which he is charged has been committed in some part of India. A foreigner who enters the Indian territory and thus accepts the protection of Indian laws virtually gives an assurance of his fidelity and obedience to them and submits himself to their operation. It is no defence on behalf of a foreigner that he did not know he was doing wrong, the act not being an obedience in his own country. Though this is no defence, yet it is a matter to be considered in mitigation of punishment.
There is no exception in favour of anyone in the Penal Code, but the following persons are always exempted from the jurisdiction of criminal Courts of every country:
During British Rule, the Code could not affect the King because the Code was an Act of the Governor-General-in-Council, and he could not legislate so as to 'affect the prerogative of the Crown or the authority of the Parliament or any part of the unwritten law or Constitution of the United Kingdom'. Now India has become an independent sovereign free republic, but the sovereign of England is still exempt from the Code as a foreign sovereign.
The Sovereign can do no wrong, and is, therefore, not liable to punishment. Blackstone says : “ No suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him. For all jurisdiction implies superiority of power, authority to try would be vain and idle, without an authority to redress; and the sentence of a Court would be contemptible, unless that Court had power to command the execution of it: but who says Finch, shall command the king? Hence it is likewise, that by law the person of the king is sacred, even though the measures pursued in his reign be completely tyrannical and arbitrary: for no jurisdiction upon earth has power to try him in a criminal way; much less to condemn him to punishment. If any foreign jurisdiction had this power, as was formerly claimed by the Pope, the independence of the kingdom would be no more: and, if such a power were vested in any domestic tribunal, there would soon be an end of the constitution, by destroying the free agency of one of the constituent parts of the sovereign legislative power.”
Under article 361(2) of the Constitution of India, no criminal proceedings whatsoever can be instituted or continued against the President of India or the Governor of a State in any court during his term of office.
The world being composed of distinct sovereignties, possessing equal rights and equal independence whose mutual benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers. ..One sovereign being in no respect amenable to another and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express licence, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him. The real principle on which the exemption of every sovereign from the jurisdiction of every Court has been deduced is that the exercise of such jurisdiction would be incompatible with his regal dignity, that is to say, with his absolute independence of every superior authority.
As the representative of a sovereign state, and in order that he may exercise his functions in a foreign state, certain privileges are given by International Law to a diplomatic agent in the state to which he is accredited. Diplomatic Agents may be classified as follows.
The immunity of an ambassador from the jurisdiction of the courts of the Country to which he is accredited is based upon his being the representative of the independent Sovereign or State which sends him, and which sends him upon the faith of his being admitted to be clothed with the same independence of and superiority to all adverse jurisdiction as the sovereign authority whom he represents would be. He does not owe even a temporary allegiance to the Sovereign to whom he is accredited, and he has at least as great privileges from suits as the Sovereign whom he represents. He is not supposed even to live within the territory of the Sovereign to whom he is accredited, and, if he has done nothing to forfeit or to waive his privilege, he is for all juridical purposes supposed still to be in his own country. If he grossly offends, or makes an ill use of his character, he may be sent home and accused before his master, who is bound either to do justice upon him, or avow himself the accomplice of his crimes.
But there is a great dispute among the writers on the laws of nations, whether this exemption of ambassadors extends to all crimes, as well natural as positive; or whether it only extends to such as are mala prohibita, as coining, and not to those that are mala in se, as murder. A direct attempt against the life of the Sovereign, ambassador, or one of his suite, would directly be punishable by the State.
The immunities of the diplomatic agent are extended to his family living with him, because of their relationship to him, to secretaries and attaches, whether civil or military, forming part of, the mission but not personally accredited, because of their necessity to him in his official relations, and perhaps also to domestics and other persons in his service not possessing a diplomatic character because of their necessity to his dignity or comfort.
The diplomat, his family and suite are immune from criminal action and arrest in the accredited state. The only remedy for crimes committed by them is to apply to the state which they represent, for the recall of the diplomat. But if they conspire against the foreign state, they may be expelled.
Diplomatic privilege does not import immunity from legal liability, but only exemption from local jurisdiction. The privilege is the privilege of the sovereign by whom the diplomatic agent is accredited, and it may be waived with the sanction of the sovereign or of the official superior of the agent.
In respect of acts of war alien enemies cannot be tried by criminal Courts. “Aliens, who in a hostile manner invade the kingdom, whether their king were at war or peace with ours, and whether they come by themselves or in company with English traitors, cannot be punished as traitors, but shall be dealt with by martial law.”' If an alien enemy commits a crime unconnected with war, e.g., theft, he would be triable by ordinary criminal Courts.
When armies of one State are by consent on the soil of a foreign State they are exempted from the jurisdiction of the State on whose soil they are.
Men-of-war of a State in foreign waters are exempt from the jurisdiction of the State within whose territorial jurisdiction they are. The domestic Courts, in accordance with principles of international law, will accord to the ship and its crew and its contents certain immunities. The immunities can in any case, be waived by the nation to which the public ship belongs.
If the offence is committed outside India it is not punishable under the Penal Code, unless it has been made so by means of special provisions such as sections 3, 4, 108A, etc., of the Code or any other statute.
The general territorial jurisdiction of a State extended into the sea as far as a cannon-shot will reach, which was usually calculated to be a marine league, or three miles. The territories, strictly speaking, of a State include, therefore, not only the compass of land, in the ordinary acceptation of the term, belonging to such State, but also that portion of the sea lying along and washing its coast, which is commonly called its maritime territory. The laws of that State apply to acts committed within them. It is by the assent of nations that the three-mile belt of sea had been brought under the dominion of every State. At present The Maritime Zones of India Act 1981, provides for a 24-mile contiguous zone, a 200-mile exclusive economic zone, and a continental shelf up to the continental margin or 200 nautical miles, whichever is greater.
The use of the words 'and not otherwise' is a sufficient basis for holding that the rules of English common law or the legal maxims embodying certain judicial principles, even though they be very wholesome, cannot be engrafted on the IPC . These words repeal all former laws for the punishment of every offence which is made punishable by the IPC . The effect of s 5, however, is to qualify this general repeal. The two sections taken together declare that offences defined by special and local laws continue to be punishable as before; in other words, all acts or omissions contrary to the provisions of the Code itself, or of the provisions of special and local laws, and the other laws enumerated in s 5, and these alone and none others, are punishable as offences.
Generally a man is responsible only for his own acts, but there are exceptional cases in which the law imposes on him vicarious liability for the acts of others.