Extent and Application — Intra-Territorial and Extra-Territorial Operation

Section 1 of the Bharatiya Nyaya Sanhita, 2023 (BNS) — re-enacting Sections 1 to 5 of the Indian Penal Code, 1860 (IPC) as a single section in six sub-sections — fixes the territorial reach of the new Code. The Code applies to every person within India. It also applies to Indian citizens wherever they may be, to anyone aboard an Indian ship or aircraft, and to anyone in the world who targets a computer resource located in India. The mechanics matter: the wrong section number on a charge-sheet, or a misjudged claim of immunity, can sink the prosecution before evidence is led.

This chapter walks through the six sub-sections of Section 1 BNS — part of our wider IPC and BNS notes series — the doctrines of intra-territorial and extra-territorial operation, the categories of person exempted from the Code's reach, and the procedural overlay supplied by Section 208 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — formerly Section 188 of the Code of Criminal Procedure, 1973. We end with the saving for special and local laws under Section 1(6) BNS, which keeps military, naval and air-force discipline outside the Code's ambit.

Section 1 BNS — six sub-sections, one structure

The IPC opened with five short sections on extent and application. Section 1 IPC named the Code and stated its territorial reach. Section 2 IPC fixed intra-territorial operation. Section 3 IPC dealt with offences committed beyond India that the law allowed to be tried within India. Section 4 IPC extended the Code to extra-territorial offences by Indian citizens, by anyone on Indian ships or aircraft, and (after the 2009 amendment) to anyone targeting a computer resource located in India. Section 5 IPC saved special and local laws.

The BNS folds all five sections into Section 1, as numbered sub-sections. Section 1(1) BNS gives the short title and the application clause. Section 1(2) BNS — a fresh provision with no IPC counterpart — vests the Central Government with the power to appoint the date of commencement. Section 1(3) BNS reproduces Section 2 IPC. Section 1(4) BNS reproduces Section 3 IPC. Section 1(5) BNS reproduces Section 4 IPC, including the 2009 cyber-crime extension. Section 1(6) BNS reproduces Section 5 IPC. The chapter headings of the IPC's separate sections have been dropped; the substantive content is preserved. We deal with each in turn. For an overview of the new Code's place in the broader transition, see our introduction to the IPC and BNS.

Section 1(1) BNS — application to "every person" within India

Section 1(3) BNS provides that every person shall be liable to punishment under the Sanhita, and not otherwise, for every act or omission contrary to the provisions of the Sanhita of which he shall be guilty within India. The provision tracks Section 2 IPC almost verbatim, replacing only "Code" with "Sanhita".

The phrase "every person" is doctrinally important. The Supreme Court held in Mobarik Ali v. State of Bombay, AIR 1957 SC 857, that 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 Indian territories and accepts the protection of Indian laws virtually gives an assurance of fidelity and obedience to them. It is no defence on behalf of a foreigner that he did not know he was doing wrong, or that the act was not an offence in his own country. Mobarik Ali involved a foreign national who, while physically outside India, induced an Indian victim by correspondence to part with funds; the consequence — receipt of the cheating instruction in Bombay — was held to be the offence's locus, and the foreigner's physical absence did not defeat jurisdiction.

The same principle was reaffirmed in Lee Kun Hee v. State of UP, AIR 2012 SC 1007. The Court held that Indian Courts have jurisdiction against foreigners residing in foreign countries for acts connected with a transaction or part of a transaction arising in India. Section 197 BNSS (formerly Section 179 CrPC) reinforces this by making the place where the consequence of a criminal act ensues a place of competent jurisdiction. The doctrine is straightforward: the offence travels with its consequences.

Corporate criminal liability under Section 1(3) BNS

A company is a "person" for the purposes of Section 1(3) BNS, just as it was for Section 2 IPC. The Constitution Bench in Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530, held that there is no immunity to companies from prosecution merely because the prosecution is in respect of offences for which the punishment is mandatory imprisonment and fine. Where imprisonment and fine are both prescribed, the Court can impose the fine alone, which can be enforced against the company. The principle was reaffirmed in CBI v. Blue Sky Tie-up Pvt. Ltd., (2011) 6 Scale 436. Corporate criminal liability under the BNS therefore continues to operate within the limits set by the Constitution Bench.

Vicarious liability — the negative rule

The Sanhita, save and except some matters, does not contemplate any vicarious liability. The proposition was settled in Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668, and reaffirmed in Keki Hormusji Gharda v. Mehervan Rustom Irani, (2009) 6 SCC 475. The Managing Director or Directors of a company cannot be said to have committed an offence merely because they hold office. Vicarious liability arises only where a statute creates it expressly — as the Negotiable Instruments Act, 1881 does in Section 141 for cheque-bounce offences, or as Section 14A of the Employees' Provident Fund Act, 1952 does for breach of trust in respect of deductions. SK Alagh v. State of UP, AIR 2008 SC 1731, confirmed that even under Section 316 BNS (formerly Section 406 IPC), vicarious liability does not extend to the directors or officers of a company in the absence of a statutory fiction.

"Within India" — the territorial reach

Article 1 of the Constitution defines the territory of India as the States, the Union Territories and any other territories acquired by the Union. Article 297 deals with maritime territory. Section 18 IPC defined India as the territory of India excluding Jammu and Kashmir; the BNS removes the J&K exclusion in light of the constitutional changes of 2019, and "India" under Section 2 BNS now means the territory of India as defined in the Constitution. The Sanhita applies to the whole of India.

Maritime territory — territorial waters, contiguous zone, EEZ

The Constitution does not itself fix the limits of territorial waters, the continental shelf or the exclusive economic zone. Article 297(3) authorises Parliament to specify these limits. The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 fixes the territorial waters of India at 12 nautical miles from the baseline (Section 3), the contiguous zone at 24 nautical miles (Section 5), and the exclusive economic zone at 200 nautical miles (Section 7). The Supreme Court explained the scheme in detail in Aban Loyd Chiles Offshore Ltd. v. UOI, (2008) 11 SCC 439. The BNS applies to acts committed within Indian territorial waters as squarely as it applies to acts committed on land.

The Enrica Lexie principle

For an end-to-end overview of how the new Code's section numbers map to the old, see our IPC-to-BNS comparative table. Beyond territorial waters, India's sovereignty is more limited. Republic of Italy v. UOI, (2013) 4 SCC 721 — the Enrica Lexie case — examined the fatal shooting of two Indian fishermen by Italian marines on board an Italian-flagged tanker, twenty nautical miles off the Kerala coast and therefore within India's contiguous zone but beyond its territorial waters. The Court held that India had limited sovereign rights over the contiguous zone and the EEZ; it did not have full sovereignty over them. The penal jurisdiction of India in such waters was governed by Article 97 of the United Nations Convention on the Law of the Sea, 1982 (UNCLOS), to which India is a party. The Convention reserves penal jurisdiction in matters of collision or other navigational incidents to the flag State or the State of which the master or other person responsible is a national. The Court ultimately held that India did not have penal jurisdiction.

Admiralty jurisdiction

The jurisdiction to try offences committed on the high seas is admiralty jurisdiction, founded on the principle that a ship on the high seas is a floating island belonging to the nation whose flag she flies. Admiralty jurisdiction extends to offences on Indian ships on the high seas, offences on foreign ships in Indian territorial waters, and piracy. The Supreme Court in M. V. Elisabeth v. Harwan Investment and Trading, AIR 1993 SC 1014, held that all High Courts in India have inherent admiralty jurisdiction. Piracy is now codified separately under the Maritime Anti-Piracy Act, 2022, but the BNS continues to apply to offences committed on Indian ships on the high seas through the operation of Section 1(5) BNS, examined below.

Section 1(4) BNS — offences beyond India tried within India

Section 1(4) BNS reproduces Section 3 IPC: any person liable, by any law, to be tried for an offence committed beyond India shall be dealt with according to the provisions of the Sanhita for any act committed beyond India in the same manner as if such act had been committed within India. The provision presupposes the existence of another law that makes the conduct an offence and renders the offender amenable to Indian Courts; Section 1(4) BNS then supplies the punishment.

The classic illustration is Pheroze v. State of Maharashtra, 1964 (2) Cr LJ 533, where an Indian citizen committed an offence outside India that was not an offence in the foreign country but was an offence under the IPC. The Court held that he was liable to be tried in India. The principle was reaffirmed in Remia v. Sub-Inspector of Police, 1993 Cr LJ 1098, where the Kerala High Court directed registration of an FIR for the murder of an Indian citizen by another Indian citizen abroad — the assumption that the offence was committed within India, though a fiction, was held to be necessary for practical purposes.

Section 1(5) BNS — extension to extraterritorial offences

Section 1(5) BNS reproduces Section 4 IPC. The Sanhita applies to any offence committed by — (a) any citizen of India in any place without and beyond India; (b) any person on any ship or aircraft registered in India wherever it may be; and (c) any person in any place without and beyond India committing an offence targeting a computer resource located in India. The Explanation provides that "offence" includes every act committed outside India which, if committed in India, would be punishable under the Sanhita; and "computer resource" has the meaning assigned to it in Section 2(1)(k) of the Information Technology Act, 2000.

The illustration to the section makes the principle concrete. A, a citizen of India, commits a murder in Uganda. He can be tried and convicted of murder in any place in India in which he may be found. The IPC's pre-amendment illustration named "Uganda" specifically; the BNS retains the illustrative form but replaces "Uganda" with "any place outside India" — a small editorial improvement.

The cyber-crime extension under Section 1(5)(c) BNS

Sub-clause (c) — added to the IPC in 2009 by Act 10 of 2009 and carried into the BNS — is doctrinally significant. It is the only sub-clause of Section 1(5) BNS that does not require Indian citizenship, Indian flag or Indian-registered aircraft. A foreign national, situated abroad, committing an offence targeting a computer resource located in India — including, on the BNS view, an attempted attack that might also fall within the framework of organised crime under Section 111 BNS — is amenable to the Sanhita. The provision was Parliament's response to the increasing porousness of national borders in cyber-offences and tracks the international tendency to assert jurisdiction over offences whose effects are felt within the asserting State.

Section 208 BNSS — the procedural sanction

Section 1(5) BNS supplies substantive jurisdiction; Section 208 BNSS (formerly Section 188 CrPC) supplies the procedural overlay. Section 208 BNSS provides that when an offence is committed outside India by a citizen of India, whether on the high seas or elsewhere, or by any person not being such citizen on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found. The proviso requires the previous sanction of the Central Government before any inquiry or trial is conducted.

The Supreme Court in Ajay Aggarwal v. UOI, (1993) 3 SCC 609, explained the relationship between Section 4 IPC (now Section 1(5) BNS) and Section 188 CrPC (now Section 208 BNSS). Section 4 IPC constitutes the act an offence; Section 188 CrPC permits cognizance to be taken in India; the Central Government's sanction operates as a check at the trial stage. The investigation itself, however, may proceed without prior sanction — confirmed by Muhammad Rafi v. State of Kerala, 2010 Cr LJ 592, and reiterated in Thota Venkateswarlu v. State of AP, AIR 2011 SC 2900.

The word "found" in Section 208 BNSS does not mean "discovered". It means "actually present". A person brought to a place against his will can be said to be "found" there. The principle was laid down in Maganlal v. State, (1882) 6 Bom 622, and applied in the celebrated case of Re Savarkar — V. D. Savarkar had escaped at Marseilles from the custody of police officers bringing him from London to Bombay, was re-arrested there, and was committed for trial by the Special Magistrate at Nasik. The Bombay High Court held the trial and committal valid. The same proposition was reiterated in Om Hemrajani v. State of UP, (2005) 1 SCC 617.

Limits of extraterritorial reach

The acts of a foreigner committed by him in territory beyond the limits of India do not, by themselves, constitute an offence against the Sanhita. The question is not "where was the act committed", but "was that person at the time, when the act was done, within the territory of India". For if he was not, the act is not an offence under the Sanhita. The Court in Central Bank of India Ltd. v. Ram Narain, (1955) 1 SCR 697, applied this principle: where the offender was not a citizen of India at the time of commission of the offence, Section 4 IPC and Section 188 CrPC have no application. Citizenship is determined at the time of commission, not at the time of trial.

The position is different where a foreigner in foreign territory initiates an offence which is completed within Indian territory. He is then, if found within Indian territory, liable to be tried by the Indian Court within whose jurisdiction the offence was completed. The cyber-crime extension under Section 1(5)(c) BNS represents a still further reach: a foreigner in foreign territory committing an offence whose effect is the impairment of a computer resource in India is amenable to the Sanhita without the need to come within Indian territory at all.

Persons exempted from criminal jurisdiction

The Sanhita itself contains no exemption in favour of any person, but six categories of person are exempted from the jurisdiction of criminal Courts of every country by international law and special statute. Unlike the doctrines collected in our chapter on the general exceptions, the exemptions operate as bars to prosecution, not as substantive defences. They must be raised at the threshold; the Court has no jurisdiction to entertain the prosecution and not, separately, a duty to acquit.

Foreign sovereigns. The principle of par in parem non habet imperium — equals have no jurisdiction over each other — exempts every sovereign from the jurisdiction of every Court. The exercise of such jurisdiction would be incompatible with the regal dignity of an absolute and independent superior authority.

Diplomats. The United Nations (Privileges and Immunities) Act, 1947 and the Diplomatic Relations (Vienna Convention) Act, 1972 confer immunity on certain diplomats, missions and members of their staff. The 1972 Act gives the force of law in India to the provisions of the Vienna Convention on Diplomatic Relations, 1961, set out in its Schedule. A diplomatic agent enjoys immunity from the criminal jurisdiction of the receiving State without exception. He enjoys immunity from civil and administrative jurisdiction except in three categories of action — real actions concerning private immovable property in the receiving State, succession actions in which he acts as a private heir or executor, and actions concerning professional or commercial activity outside his official functions. He is not obliged to give evidence as a witness.

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 — such as ordinary theft — he is triable by the ordinary criminal Courts.

Foreign army. When the armies of one State are by consent on the soil of a foreign State, they are exempt from the jurisdiction of the State on whose soil they are.

Warships. Men-of-war of a State in foreign waters are exempt from the jurisdiction of the State within whose territorial jurisdiction they are. Domestic Courts, in accordance with principles of international law, accord to the ship and its crew certain immunities. The immunities can in any case be waived by the nation to which the public ship belongs.

President and Governors. Article 361 of the Constitution exempts the President and Governors from the jurisdiction of Courts in respect of acts done in the exercise of their official functions. The exemption is constitutional and operates of its own force.

Section 1(6) BNS — saving for special and local laws

Section 1(6) BNS reproduces Section 5 IPC. Nothing in the Sanhita affects the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India, or the provisions of any special or local law. The Code, though general, was not intended to be exhaustive. Offences defined by local and special laws were left out of the Code and merely declared to be punishable as before. The personnel of the Army, Navy and Air Force are governed by the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950 in regard to mutiny and desertion. The Supreme Court applied the saving in UOI v. Anand Singh Bisht, AIR 1997 SC 361.

The interplay between general law and special law has been the subject of sustained Supreme Court attention. The Court summarised the rules in Maya Mathew v. State of Kerala, (2010) 4 SCC 498. Where two provisions — one general, one special — govern the same matter, the Court should attempt harmonious construction. Where harmonious construction is impossible and a clear intention to displace the general law is evident from the special law, the special law will prevail. Where a later special law is repugnant to an earlier general law, the later special law will prevail. Where a later general law is repugnant to an earlier special law, the prior special law will continue to apply unless a clear intention to make the later general law of universal application is shown.

Overlapping offences — the same act, two statutes

Where a single act constitutes offences under both the Sanhita and another statute, the offender is not protected by Section 1(6) BNS from prosecution under both, provided the ingredients of the two offences are different. The Supreme Court in Sangeetaben Mahendrabhai Patel v. State of Gujarat, AIR 2012 SC 2844, held that a prosecution under Section 318 BNS (cheating, formerly Section 420 IPC) is not barred by a separate prosecution under Section 138 of the Negotiable Instruments Act, 1881, even on overlapping facts, because the ingredients of the two offences are entirely different. In Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1, the Court held that the offence of waging war against the Government of India — now under Chapter VII of the BNS, examined in our chapter on offences against the State — and a terrorist act under Chapter IV of the Unlawful Activities (Prevention) Act, 1967 are different offences; they may share factual features but they cover different doctrinal areas. The principle was reaffirmed in Natarajan v. State, (2008) 8 SCC 413, on the relationship between the IPC and the Customs Act, 1962.

Section 1(2) BNS — the new commencement provision

Section 1(2) BNS is the only sub-section of Section 1 BNS without an IPC predecessor. It vests the Central Government with the power to appoint, by notification in the Official Gazette, the date on which the Sanhita shall come into force, and authorises different dates to be appointed for different provisions. The Central Government exercised this power by Notification S.O. 850(E) dated 23 February 2024, appointing 1 July 2024 as the date of commencement of the Sanhita as a whole.

The drafting choice reflects the modern practice of separating the date of enactment from the date of commencement, allowing for an implementation gap during which subordinate legislation can be issued, infrastructure put in place, and stakeholders trained. The IPC, by contrast, contained its own commencement clause — 1 January 1862 — fixed in the body of the Act itself, with no scope for executive variation.

Strategic note for the practitioner and the aspirant

Three points should be carried forward. First, Section 1 BNS is a single section but reads as five distinct propositions. When a question of jurisdiction arises, identify which sub-section applies — intra-territorial under 1(3), beyond-India-but-tried-here under 1(4), or extraterritorial under 1(5) — before reaching for the substantive offence section. Second, every claim of immunity under one of the six exempted categories must be tested against the source statute or treaty: foreign sovereigns under common-law principles, diplomats under the 1972 Act and the Vienna Convention, the President and Governors under Article 361. Third, the procedural overlay under Section 208 BNSS is integral to extraterritorial prosecutions; a charge-sheet filed without Central Government sanction in respect of an extraterritorial offence is liable to be quashed.

The next chapter takes up the consolidated definitions of Section 2 BNS, which serve as the glossary for every offence in the Sanhita. After that, we turn to the kinds of punishment under Sections 4 to 13 BNS, including the new community-service sentence introduced for petty offences. The general exceptions of Sections 14 to 44 BNS follow.

Frequently asked questions

Does the BNS apply to a foreigner who commits an offence in India?

Yes. Section 1(3) BNS applies to every person within India, without distinction of nationality, rank, caste or creed. The principle was settled in Mobarik Ali v. State of Bombay, AIR 1957 SC 857: a foreigner who enters Indian territory accepts the protection of Indian laws and submits himself to their operation. It is no defence that the act is not an offence in his own country, or that he did not know it was wrong. A foreigner whose act consequences within India — even if he himself remains physically outside — is also amenable, as Lee Kun Hee v. State of UP affirms.

What is the cyber-crime extension under Section 1(5) BNS?

Section 1(5)(c) BNS — first introduced into the IPC by amendment in 2009 — extends the Sanhita to any person, whether a citizen of India or not, in any place without and beyond India who commits an offence targeting a computer resource located in India. It is the only sub-clause of Section 1(5) BNS that does not require Indian citizenship, an Indian-flagged ship or an Indian-registered aircraft. The Explanation incorporates the definition of 'computer resource' from Section 2(1)(k) of the Information Technology Act, 2000.

Can the IPC apply to an offence committed by an Indian citizen abroad if the act is not an offence in the foreign country?

Yes, provided the act would be an offence under the Sanhita if committed in India. The Bombay High Court held in Pheroze v. State of Maharashtra, 1964 (2) Cr LJ 533, that an Indian citizen who commits an offence outside India which is not an offence according to the laws of that country is still liable to be tried in India under what is now Section 1(5) BNS, read with Section 208 BNSS. The Central Government's sanction under the proviso to Section 208 BNSS is required before trial, but not before investigation.

Are diplomats immune from prosecution under the Sanhita?

Yes, under the Diplomatic Relations (Vienna Convention) Act, 1972, which gives the force of law in India to the Vienna Convention on Diplomatic Relations, 1961. A diplomatic agent enjoys absolute immunity from the criminal jurisdiction of the receiving State. Civil and administrative immunity is also available, except in three categories — real actions concerning private immovable property, succession actions in which he acts as a private heir or executor, and actions concerning professional or commercial activity outside his official functions. He is not obliged to give evidence as a witness.

Does Section 1(6) BNS bar prosecution under the Sanhita where a special law also covers the act?

No, not where the ingredients of the two offences are different. The Supreme Court held in Sangeetaben Mahendrabhai Patel v. State of Gujarat, AIR 2012 SC 2844, that a prosecution under Section 318 BNS (cheating) is not barred by a separate prosecution under Section 138 of the Negotiable Instruments Act, even on overlapping facts. Section 1(6) BNS preserves the operation of special and local laws; it does not displace the Sanhita. The general rule against double jeopardy under Article 20(2) is the constitutional check, not Section 1(6) BNS.

Where do territorial waters end and the contiguous zone begin?

Under Section 3 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, the territorial waters of India extend to 12 nautical miles from the appropriate baseline. The contiguous zone, under Section 5, extends a further 12 nautical miles — to 24 nautical miles in all. The exclusive economic zone, under Section 7, extends to 200 nautical miles. The BNS applies as fully within territorial waters as it does on land. Beyond territorial waters, India's penal jurisdiction is more limited, as Republic of Italy v. UOI (2013) made clear.