Section 4 of Indian Penal Code, 1860 – Explained!

It does not matter at all even if the offence is committed without and beyond India. If an Indian citizen commits adultery in England, which is not a crime there, he is guilty of it on the grounds that he is an Indian citizen and adultery is a crime defined under section 497 of the Code.

Sub-section (2) of this section reiterates the well known principle of international law that a ship on the high seas is a floating territory of the country whose flag she is flying. The principle has been extended to the aircraft also. Consequently, this provision provides jurisdiction to Indian Courts for offences committed by any person, whether Indian or a foreigner, on any ship or aircraft registered in India wherever it may be. An Indian ship wherever sailing, whether in the high seas or in any other waters, and Indian aircraft wherever flying are territories of India and any offence committed on them by any person of whatever nationality is subject to be dealt with in accordance with the provisions of the Indian Penal Code. In Mayer Hans George v. State? the accused was a German national. He was on his way from Zurich to Manila on a Swiss aircraft which arrived in Bombay while on transit. He remained within the aircraft and did not come out. He did not file a declaration under the Foreign Exchange Regulation Act, 1947, regarding the gold he was carrying on his person. The Supreme Court held that his trial and conviction under the Indian law was valid.

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In Samarudeen v. Asstt. Director of Enforcement, Trivandrum the Kerala High Court held that the petition seeking direction to the police for investigating an offence committed outside India is not maintainable as the cause of action arose outside the territorial limits of India. But in Muhammed Sajeed v. State of Kerala, the same High Court ruled that an offence committed outside India can be investigated by the local police and prior sanction of the Central Government for purposes of investigation is not necessary.

Liability of foreign nationals in India for offences committed outside India

The basis of liability of a person under section 4 is either citizenship or territory. The provisions of the Code apply if the offence committed is by an Indian citizen, or the same is on the Indian territory. Consequently, if a foreign national commits an offence outside the territory of India, he is not amenable to the jurisdiction of the Indian Penal Code since neither sub-section (1) nor sub-section (2) of section 4 comes into application. In Pirtai’s case a foreign national who was residing in a foreign country instigated the commission of an offence which in consequence was committed on Indian territory. It was held that he could not be held responsible for the same since neither was he a citizen of India nor was the instigation given on Indian territory.