It is strenuously urged that to consider a foreigner guilty under the Penal Code for an offence committed in India though attributable to him and to punish him therefor in a case where he is not corporeally present in India for the commission of the offence, would be to give extra territorial operation to the Indian Penal Code and that an interpretation which brings such extra-territorial operation must be avoided.
The case of the Privy Council in Macleod vs. Attorney-General for New South Wales, (1891) A C 455 (G) is relied upon. But this argument is based on a misconception. The fastening of criminal liability on a foreigner in respect of culpable acts or omissions in India which are juridically attributable to him notwithstanding that he is corporeally present outside India at the time, is not to give any extra-territorial operation to the law; for it is in respect of an offence whose locality is in India, that the liability is fastened on the person and the punishment is awarded by the law, if his presence in India for the trial can be secured.
That this is part of the ordinary jurisdiction of a Municipal Court is well recognized in the common law of England as appears from Halsbury’s Laws of England (Third Edition) vol. 10, page 318. Paragraph 580 therein shows that the exercise of criminal jurisdiction at common law is limited to crimes committed within the territorial limits of England and para 581 states the jurisdiction in respect of acts outside English territory as follows:
“For the purposes of criminal jurisdiction, an act may be regarded as done within English territory, although the person who did the act may be outside the territory; for instance, a person who, being abroad procures an innocent agent or uses the post office to commit a crime in England is deemed to commit an act in England. If a person, being outside England initiates an offence, part of the essential elements of which take effect in England, he is amenable to English jurisdiction. It appears that even though the person who has initiated such an offence is a foreigner, he can be tried if he subsequently comes to England.”
Thus the exercise of criminal jurisdiction in such cases under the common law is exercise of municipal jurisdiction and much more so in a case like the present, where all the ingredients of the offence occur within the municipal territory.
It would be desirable at this stage to notice certain well-recognised concepts of International Law bearing on such a situation. Wheaton in his book on Elements of International Law (Fourth Edition) at page 183, dealing with criminal jurisdiction states as follows:
“By the Common Law of England, which has been adopted, in this respect, in the United States, criminal offences are considered as altogether local, and are justiciable only by the Courts of that country where the offence is committed.”
At page 182 thereof it is stated as follows:
“The Judicial power of every independent State, extends (with the qualifications mentioned earlier) to the punishment of all offences against the municipal laws of the State, by whomsoever committed, within the territory.”
In Hackworth’s Digest of International Law (1941 Edition), vol. II, at page 188 there is reference to opinions of certain eminent American Judges. It is enough to quote the following dictum of Holmes J., noticed therein “
Acts done outside a jurisdiction, but intended to produce and producing, detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect, if the State should succeed in getting him within its power.”
In Hyde’s International Law (second Edition) vol. I, at page 798, the following quotation from the judgment of the permanent Court of International Justice dated 7th September 1927, in the case relating to S. S. Lotus, Publications Permanent Court of International Justice, Series A. No. 10, 23(H) is very instructive:
“It is certain that the Courts of many countries even of countries which have given their criminal legislation a strictly territorial character, interpret criminal law in the sense that offences, the authors of which at the moment of commission are in the territory of another state, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offence, and especially its effects, have taken place there.” This quotation is also noticed in Openhei’s International Law (Eighth Edition) vol.1, at page 332 in the foot-note. In noticing the provisions of International Law in this context we are conscious that we have to deal with in the present case is a question merely of municipal law and not of any International Law. But as is seen above, the principles recognised in International Law in this behalf are virtually based on the recognition of the principles in the municipal law of various countries and is really part of the general jurisprudence relating to criminal responsibility under municipal law.