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irrespective of its location, by any person not necessarily a citizen. Such a declaration

was made as long back as in 1898. By an amendment in 2009 to the said section, the

Code is extended to any person in any place "without and beyond the territory of India",

committing an offence targeting a computer resource located in India.13.

1. 'Every person'.—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 territories 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 offence in

his own country. A foreigner who commits an offence within India is guilty and can be

punished as such without any limitation as to his corporal presence in India at the

time.14. Indian Courts have jurisdiction against foreigners residing in foreign countries

but their acts connected with transaction or part of transaction arising in India.15.

[s 2.1] Corporate Criminal Liability

A company is liable to be prosecuted and punished for criminal offences. Although

there are earlier authorities to the fact that the corporation cannot commit a crime, the

generally accepted modern rule is that a corporation may be subject to indictment and

other criminal process although the criminal act may be committed through its agent.

The majority in the Constitution bench held that there is no immunity to the companies

from prosecution merely because the prosecution is in respect of offences for which

the punishment is mandatory imprisonment and fine.16. When imprisonment and fine is

prescribed as punishment the Court can impose the punishment of fine which could be

enforced against the company.17.

In CBI v Blue Sky Tie-up Pvt Ltd,18. the question again came up for consideration before

the Supreme Court and it was held that since the majority of the Constitution Bench

ruled in Standard Chartered Bank v Directorate of Enforcement [supra] that the company

can be prosecuted even in a case where the Court can impose substantive sentence as

also fine, and in such case only fine can be imposed on the corporate body, the contrary

view taken by the learned single Judge cannot be approved.

[s 2.2] Vicarious Liability.—

Indian Penal Code, save and except some matters does not contemplate any vicarious

liability on the part of a person. Commission of an offence by raising a legal fiction or

by creating a vicarious liability in terms of the provisions of a statute must be expressly

stated. The Managing Director or the Directors of the Company, thus, cannot be said to

have committed an offence only because they are holders of offices.19. Vicarious

liability of the Managing Director and Director would arise provided any provision exists

in that behalf in the statute. Statutes indisputably must contain provision fixing such

vicarious liabilities. Even for the said purpose, it is obligatory on the part of the

complainant to make requisite allegations which would attract the provisions

constituting vicarious liability.20. The provisions of the Essential Commodities Act,

1955, Negotiable Instruments Act, 1881, Employees' Provident Fund (Miscellaneous

Provision) Act, 1952, etc., have created such vicarious liability. It is interesting to note

that section 14A of the 1952 Act specifically creates an offence of criminal breach of

trust in respect of the amount deducted from the employees by the company. In terms

of the explanations appended to section 405 of the IPC, 1860 a legal fiction has been

created to the effect that the employer shall be deemed to have committed an offence

of criminal breach of trust. Whereas a person in charge of the affairs of the company

and in control thereof has been made vicariously liable for the offence committed by

the company along with the company but even in a case falling under section 406 of

the IPC, 1860 vicarious liability has been held to be not extendable to the Directors or

officers of the company.21.

There is no exception in favour of anyone in the Penal Code, but the following persons

are exempted from the jurisdiction of criminal Courts of every country:—

(a) Foreign Sovereigns.—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.22.

(b) Diplomats.—United Nations Privileges and Immunities Act, 1947, and the Diplomatic

Relations (Vienna Convention) Act, 1972, gave certain diplomats, missions and their

member's diplomatic immunity even from criminal jurisdiction. The Diplomatic

Relations (Vienna Convention) Act had been enacted to give effect to the Vienna

Convention on Diplomatic Relations, 1961. The effect of section 2 of the Act is to give

the force of law in India to certain provisions set out in the Schedule to the Act.

A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving

State. He shall also enjoy immunity from its civil and administrative jurisdiction except

in the case of:

(i) A real action relating to private immovable property situated in the territory of the

receiving State, unless he holds it on behalf of the sending State for the

purposes of the mission;

(ii) An action relating to succession in which the diplomatic agent is involved as

executor, administrator, heir or legatee as a private person and not on behalf of

the sending State;

(iii) An action relating to any professional or commercial activity exercised by the

diplomatic agent in the receiving State outside his official functions.23. A

diplomatic agent is not obliged to give evidence as a witness.24. Privileges and

immunities are conferred on United Nations and its Representatives as well as

on other international organisations and their representatives by the United

Nations (Privileges and Immunities) Act, 1947.25.

(c) Alien enemies.—In respect of acts of war alien enemies cannot be tried by criminal

Courts. If an alien enemy commits a crime unconnected with war, e.g., theft, he would

be triable by ordinary criminal Courts.

(d) Foreign army.—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.

(e) Warships.—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.26.

(f) President and Governors.—Under Article 361 of the Indian Constitution, the

President and Governors are exempt from the jurisdiction of Courts.

2. 'Within India'.—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. Under section179 of the Cr PC, 1973 even the

place(s) wherein the consequence (of the criminal act) "ensues" would be relevant to

determine the Court of competent jurisdiction. Therefore, even the Courts within whose

local jurisdiction, the repercussion/effect of the criminal act occurs, would have

jurisdiction in the matter. When the consequence of an act committed by a foreigner

outside India if ensued in India, he can be tried in India.27. Normally crime carries the

person. The commission of a crime gives the Court of the place where it is committed