This provision subjects every person to punishment under this Code who violates any provision of the Code by his act or omission of which he shall be guilty within India. The use of the expression ‘every person’ in this section and not ‘any person’ as in sections 3 and 4 (2) is deliberate. No distinction has been made of nation, rank, caste or creed of the person and whoever violates any provision is liable to punishment. A foreign national committing an offence within India can be punished.
In the famous case of Mobarik Ali v. State of Bombay a national of Pakistan made certain false representations from Karachi by letters, telegrams and telephones to the complainant at Bombay on the belief of which the complainant paid a certain amount of money to the agent of the Pakistani at Bombay.
The Supreme Court held that the Pakistani national was subject to the jurisdiction of the Indian Courts for having committed the offence of cheating and as the appellant had already surrendered to the authorities of India under the provisions of the Fugitive Offenders Act, 1881 in connection with another case, his conviction was valid under section 420, Indian Penal Code.
In the Esop’s case a foreigner had committed an unnatural offence on an Indian ship lying in St. Katherine’s Docks. His defence that he was a foreigner and that in his country such an act was not an offence was rejected on the ground that the act was an offence under the Indian Penal Code and that it was committed on an Indian ship which was Indian territory.
Liability of a Corporation
The word ‘person’ has been defined under section 11, Indian Penal Code as including any company or association, or body of persons, whether incorporated or not. Consequently, the expression ‘every person’ in section 2 should include every natural person as well as legal person.
However, there are certain crimes which can be committed only by human beings such as waging war against the State, giving false evidence and murder etc. For some other offences, a corporation may be convicted and punishment to its directors etc. may be meted out if the crime has been committed under the authority of the corporation.
Liability of a Master
Section 2 clearly says that a person shall be liable under the Code if his act or omission is contrary to its provisions. If a master himself does not violate any provision of the Code, he cannot be held liable for the violations of his servant. This is also the general principle that a master is not criminally liable for the acts of his servant.
However, if a criminal statute specifically and unequivocally states that the master will be liable for any act of his servant, his liability under criminal, law stands. This generally happens in licence cases. In Babu Lai’s case4 the master was a licensed opium seller. His servant sold opium to a boy under fourteen years of age in violation of the law. The court held the master liable.
Even though section 2 fixed criminal liability on ‘every person’ here are some persons who have been granted immunity from prosecution either by the Constitution of India or by international law.
Protection of President and the Governors
Article 361 of the Constitution grants exceptions from liability to certain high dignitaries. Clause (1) of this Article says that the President or the Governor of the State shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.
Clause (2) of this Article specifically provides that no criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his term of office.
Likewise, clause (3) says that no process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office.
Clause (4) states that no civil proceedings in which relief is claimed against the President or the Governor of a State, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor of such State, until the expiration of two months’ next after notice in writing has been delivered to the President or the Governor, as the case may be, or left at his office stating the nature of the proceedings, the cause of action there for, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.
International law gives immunity to the following from criminal prosecution:—
Since a sovereign is the highest authority of his nation, he is not amenable to the jurisdiction of other countries. He is totally independent and represents the dignity of his country.
An Ambassador is the representative of his own sovereign in another country. Consequently, he also enjoys the immunity from prosecution like his sovereign.
Ordinarily criminal courts have no jurisdiction over acts of war of alien enemies. But for other crimes of an alien enemy which are not acts of war, criminal courts are empowered to take cognizance and punish.
There are many instances when a foreign army is based on the soil of another country with the consent of the host country. In such case the foreign army is not amenable to the original jurisdiction of the host nation.
Warships of a State enjoy immunity from criminal liability on the territory of another country on the ground that the property of a sovereign, which includes his warships also, is not subject to the legal process of another country.
And not otherwise
The use of the words ‘and not otherwise’ in section 2 unambiguously shows that all former laws punishing any offence which is made punishable by the Code, have been repealed.
Act or omission
The use of the words ‘act or omission’ in section 2 should be understood in the light of section 33 which clearly states that the word ‘act’ denotes as well a series of acts as a single act; the word ‘omission’ denotes as well a series of omissions as a single omission.
Contrary to the provisions thereof
The use of the words ‘contrary to the provisions thereof’ in section 2 implies that to be amenable to the jurisdiction of this Code, a person has to violate provision of the Code, of which he shall be guilty within India.
The expression ‘within India’ in section 2 points out towards the intra-territorial jurisdiction of the Indian Penal Code. This includes the whole land territory of India, the maritime belt of India which presently extends upto twelve nautical miles in the sea, the whole air space over and the area underneath this total area.
The maritime belt, which is also known as territorial waters, is measured from the appropriate base line. The Indian Parliament has kept itself abreast with the latest development in the field of international law and has enacted the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 Section 3 (2) of which has extended the territorial waters of India to twelve nautical miles. In 1977 the Exclusive Economic Zone has also been extended to two hundred nautical miles. It
appears that if any offence relating to property is committed within this zone, the Indian criminal jurisdiction will naturally extend to it.