CHAPTER II. LOCAL EXTENT OF INDIAN JURISDICTION. I. Extradition, ¶ 20. II. Extraterritorial Jurisdiction. 1. Offences committed on land. ¶¶ 30, 33–46. 31, 47. Admiralty Jurisdiction, ¶¶ 47, 48, 54–56. 3. Persons liable to jurisdiction, ¶¶52-68. 4. Law applicable to offence, ¶¶¶ 76-88. ¶ 19. Application of Penal Code. So far as India and the persons resident therein are concerned, the primary intention of the Legislature is to substitute the Penal Code for the criminal law which previously existed. That law, however, is not repealed, except by implication, and in cases to which the provisions of this Code apply. The frame of these clauses is thus explained by the Commissioners in their Second Report, 1847, ss. 536-538. "We do not advise the general repeal of the Penal laws now existing in the territories for which we have recommended the enactment of the Code. We think it will be more expedient to provide only that no man shall be tried or punished (except by a Court Martial) for any acts which constitute any offence defined in the Code, otherwise than according to its provisions. It is possible that a few actions which are punishable by some existing law, and which the Legislature would not desire to exempt, may have been omitted from the Code. And, in addition to this consideration, it appears to us that actions which have been made penal on special temporary grounds, ought not to be included in a general Penal Code intended to take its place amongst the permanent institutions of the country." The object is carried out as regards offences committed within the territories by s. 2, which is explicit enough. With regard to offences committed beyond those territories the Code is less clear. Section 3 enacts that where 1 See the Memorandum on the Local Application of the Penal Code at the beginning of Part I. a person might, by virtue of any Act of the Legislative Council of Calcutta, be tried in British India for an offence committed out of British India, he is to be dealt with according to this Code. Section 4 contains a similar provision as to Native Indian subjects of His Majesty who commit offences in any place without and beyond British India and as to British subjects, and servants of the King, whether British subjects or not, who commit offences within the dominions of any Native Prince or Chief in India. But neither of these sections covers an equally important class of cases, that, namely, of persons who are not servants of the King, and who are triable in British India, not by virtue of any Act of the Legislative Council, but under Acts of Parliament. These will be governed by the law contemplated by the Act of Parliament which gives jurisdiction over them in India. 20. Extradition.-Offences committed beyond the limits of British India may either be tried in India, or the offender may be given up for trial in the country where his crime was committed. Cases of the latter class will now be disposed of under the Foreign Jurisdiction and Extradition Act XXI. of 1879. It seems to contemplate two distinct cases. First, where the offence has been committed in any of those States specially connected with India, in which the Governor General in Council has a power and jurisdiction which is exercised by a Political Agent (s. 2). Secondly, where the offence is committed in some State where there is no such Indian Jurisdiction, or in some other part of His Majesty's dominions. First.-Extradition, as between the British Government and the Native States, appears, till very lately, to have rested, with few exceptions, on no legal basis. In the first edition of Aitchison's Treaties and Sunnuds (1862-1864) the only formal extradition treaty to be found is that between the British Government and Nepal, dated 10th February, 1855.1 The treaty with the Gaekwar of Baroda, dated 6th June, 1802, Art. 7 provided that "in future the subjects of each State who may take refuge with either shall be delivered up, if the State from which such party or parties shall have fled appear to have any demand of debt or any just claim against him or 1 2 Aitch. (3rd ed.), 186. them." The treaty with Kolhapur of the 24th January, 1826, Art. 6, seems to aim principally at the apprehension and punishment of marauders issuing from the Native State and entering British territory. When, however, the necessity for some formal arrangements on the subject began to be felt" Lord Lawrence appears to have contemplated negotiations with most of the States on the subject. Thus, between 1867 and 1869, treaties were concluded not only with Hyderabad, but with Serohi, Alwar, Bhartpur, Dholpur, Thalawar, Jaipur, Jodhpur, Kisngarh, Udaipur, Tonk, Kota, Bikanir, and others." It is evident from this list that the larger States were wholly unprovided for. Accordingly the Act of 1879 was passed, which defined the cases in which demands for extradition could be made against the British Government, and at the same time provided that no such demands should be preferred except through the Political Agent of the Queen's Government. As regards extradition to the British Government, it is apparently content to rely upon the pressure which it can bring to bear upon the Native State where the offender may be. The provisions of all existing treaties are preserved by s. 1. Practically all such treaties are now obsolete, the States with which they were made finding that they have a speedier and more effective remedy under the Extradition Act. The Instrument of Transfer to Mysore in 1881 provides by Art. 16 for surrender of criminals by Mysore, but not to it. All the States, with which extradition treaties were made under Lord Lawrence, appear in 1887 to have executed supplemental agreements by which they abandoned their right to demand extradition of their own criminals by virtue of the treaty, in consideration of the general remedy provided by later legislation.1 21. "When an offence has been committed, or is supposed to have been committed, in any State against the law of such State by a person not being an European British subject, and such person escapes into, or is in British India, the Political Agent for such State may issue a warrant for his arrest and delivery at a place in such State, and to a person to be named in the warrant, if such Political Agent thinks that the offence is one which ought to be inquired into in such State, and if the act, said to 16 Aitch., 296. 3 See Warner, 356. 26 Aitch., 101. 4 See 3 Aitch., 38, 59, 73, 81, 102, 123, 162, 188, 201, 220, 227, 251, 258, 282, 294, 311, 335, 351; 8 Aitch., 371. have been done, would, if done in British India, have constituted an offence against any of the sections of the Indian Penal Code mentioned in the second Schedule hereto, or under any other section of the said Code, or any other law, which may, from time to time, be specified by the Governor-General in Council by a notification in the Gazette" (Act XXI. of 1879, s. 11). The sections mentioned in the second Schedule are the following:-206, 208 (frauds upon creditors); 224 (resistance to arrest); 230-263, both inclusive (coin); 299304 (homicide); 307 (attempt to murder); 310, 311 (Thugs); 312-317 (injuries to infants); 323-333 (hurt); 347, 348 (wrongful confinement); 360-373 (kidnapping); 375377 (rape and unnatural offences); 378-414 (offences against property); 435-440 (mischief); 443–446 (hɔusetrespass); 464–468 (forgery) ; 471–477 (frauds in regard to documents. "Such warrant may be directed to the Magistrate of any district in which the accused person is believed to be, and shall be executed in the manner provided by the law for the time being in force with reference to the execution of warrants; and the accused person, when arrested, shall be forwarded to the place and delivered to the officer named in the warrant" (s. 12). "Such Political Agent may either dispose of the case himself, or if he is generally or specially directed to do so by the Governor-General in Council, or by the Governor in Council of Fort St. George or of Bombay, may give over the person so forwarded, whether he be a native Indian subject of Her Majesty or not, to be tried by the ordinary courts of the State in which the offence was committed" (s. 13). It will be observed that the Political Agent is not authorized to demand the extradition of an European British subject. He must apparently be dealt with in India under the Crim. P. C., Act V. of 1898, s. 188. The arrest by a police officer in India of a person charged with having committed an offence in a Native State, with a view to handing him over to be dealt with by the authorities of that State, if made without a warrant is illegal, and punishable under s. 342 of the Penal Code."1 1 Re Makund, 19 Bom., 72. 22. Secondly.-Extradition, as between the British Government and non-Asiatic States, is only granted by virtue of some treaty, which again requires an Act of Parliament, or a Local Act to give effect to it.1 As regards India, such demands are most likely to arise. between our Government, on one hand, and the Governments of Portugal and France on the other. Portugal. The Portuguese Treaty Act, 1880 (IV. of 1880),2 provides for delivery by each of the contracting parties to the other of persons who, being accused or convicted of crimes committed in the Indian dominions or jurisdiction of the one party, shall be found in the Indian dominions or jurisdiction of the other. When the crime for which extradition is claimed has been committed beyond the dominions of the party claiming, the requisition shall be complied with, if the laws of the party applied to authorize a prosecution for such crime when committed beyond its dominions, and if the person claimed is a subject of the party claiming his extradition. The offences for which extradition shall be granted by either party are set out in a Schedule. It is provided that no person who is a British subject by birth or naturalization shall be given up to the Portuguese authorities. And similarly that no Portuguese subject shali be delivered up to the British authorities. Also that the person surrendered shall not be kept in prison or brought to trial by the party to whom the surrender is made, for any other crime, or on account of any other matters, than those for which the surrender has been granted. ¶ 23. France. The Treaty with France (August 14, 1876) is very similar, but contains a special clause which is not found in the Portuguese convention, that no extradition shall be granted for any political offence, or any act connected with a political offence. These words are not limited to offences against the State, such, for instance, as those in Chapter VI. of the Penal Code. Nor 1 Fer Mellish, L. J., L. R., 5 P. C., 189; Forsyth, 341, 369. 2 The extradition treaty between Portugal and Great Britain, of November 13, 1893, embodies a Protocol, of November 30, 1892 which declares that the stipulations of the treaty do not apply to extradition as between Portuguese and British India which is reserved for ulterior negotiation. The treaty was brought into operation by an order in Council, dated the 16th May, 1878, which applies to it the Foreign Jurisdiction Acts, 1870 and 1873. |