BNS S.1 determines who is subject to the Sanhita and where the law operates. It establishes two spheres: intra-territorial jurisdiction (all persons for acts within India) and extra-territorial jurisdiction (certain persons for acts outside India). The section also saves the operation of special laws (mutiny, desertion) and local laws.
BNS S.1 corresponds to IPC S.1 to S.4 (consolidated). The structure is reorganised: IPC had separate sections for extent (S.1), intra-territorial (S.2), extra-territorial (S.3 and S.4), and saving (S.5). BNS puts all of this into a single section with six sub-sections.
Structure of BNS S.1
| Sub-section | Content |
|---|---|
| (1) | Short title: Bharatiya Nyaya Sanhita, 2023 |
| (2) | Commencement: on the date notified (1 July 2024) |
| (3) | Intra-territorial application: every person shall be liable to punishment under this Sanhita and not otherwise for every act or omission contrary to its provisions of which he shall be guilty within India |
| (4) | Extra-territorial: any person liable by any law in force in India to be tried for an offence committed beyond India shall be dealt with according to this Sanhita as if such act had been committed within India |
| (5) | Extended extra-territorial application to: (a) any citizen of India in any place outside India; (b) any person on any ship or aircraft registered in India wherever it may be; (c) any person in any place outside India committing offence targeting a computer resource located in India |
| (6) | Saving: nothing in this Sanhita affects the provisions of any Act for punishing mutiny and desertion, or special or local law |
Intra-Territorial Jurisdiction (S.1(3))
Every person present in India, whether a citizen or a foreigner, is subject to the Sanhita for acts committed within the territory of India.
"India" means the territory of India as defined in Art.1 of the Constitution: the States, the Union Territories, and any territory that may be acquired.
"Not otherwise": No person shall be punished under any other law for an act that constitutes an offence under this Sanhita, unless a special law provides otherwise. This ensures the BNS is the primary penal code.
Extra-Territorial Jurisdiction (S.1(4) and S.1(5))
S.1(4): General extra-territorial rule
Any person who is liable by any law in force in India to be tried for an offence committed beyond India shall be dealt with according to the BNS. This is a gateway provision: it does not itself create extra-territorial jurisdiction but activates the BNS where another law (such as the Passport Act, the UAPA, or extradition treaties) creates that liability.
S.1(5): Three specific heads of extra-territorial jurisdiction
| Head | Basis | Example |
|---|---|---|
| (a) Indian citizen abroad | Nationality | An Indian citizen commits murder in Dubai; triable in India |
| (b) Person on an Indian-registered vessel or aircraft | Flag State jurisdiction | A crew member on an Air India flight commits assault over international waters |
| (c) Person targeting an Indian computer resource from abroad | Protective principle | A hacker in a foreign country attacks an Indian bank's server |
Why head (c) is new: The IPC had no equivalent. It was introduced by the BNS to address cyber offences committed from outside India that affect Indian computer infrastructure. This is a significant expansion and reflects the protective principle of jurisdiction.
Facts: The accused, residing in Karachi (Pakistan), sent fraudulent letters to persons in Bombay, inducing them to part with money. He never entered India.
Issue: Can a person who commits an act outside India that causes an effect within India be tried in India?
Held: Yes. The offence of cheating was completed in Bombay where the victims parted with their property. Where any ingredient of the offence occurs within India, the offence is triable in India.
Relevance: The leading authority on jurisdiction where the act is done abroad but the effect occurs within India. Now reinforced by BNS S.1(5)(c) for computer resource offences.
The Explanation to S.1
The Explanation declares that in this section the word "offence" includes every act committed outside India which, if committed in India, would be punishable under this Sanhita.
Illustration (in S.1 itself): A, who is a citizen of India, commits a murder in any place without and beyond India. He can be tried and convicted of murder in any place in India in which he may be found.
When Does the BNS Not Apply?
| Situation | Reason |
|---|---|
| Offences under military law (mutiny, desertion) | S.1(6) saves Acts for punishing mutiny and desertion |
| Offences under special or local law | S.1(6) saves special and local laws; the BNS applies only where no special provision exists |
| Acts committed by persons with no territorial or nationality nexus to India | No head of jurisdiction is engaged |
| Acts done by foreign diplomats with immunity | International law and the Diplomatic Relations Act exclude jurisdiction |
Recall Check
- What are the three heads of extra-territorial jurisdiction under BNS S.1(5)?
- What is the effect of the words "and not otherwise" in S.1(3)?
- Can a person who never enters India be tried for an offence whose effect occurs in India?
Key Cases
Mobarik Ali v State of Bombay (1957) Mobarik Ali v State of Bombay 1957
Issue: Jurisdiction where the act is done abroad but the effect is felt in India.
Rule: Where any ingredient of the offence occurs within India, India has jurisdiction.
Held: The accused was triable in Bombay for cheating committed by letters sent from Pakistan.
Distinctions
| Basis | BNS S.1(3) Intra-territorial | BNS S.1(5) Extra-territorial |
|---|---|---|
| Persons covered | All persons within India | Only Indian citizens, persons on Indian vessels/aircraft, or those targeting Indian computer resources |
| Place of act | Within India | Outside India |
| Nexus | Territorial presence | Nationality, flag State, or protective principle |
| Example | A foreigner commits theft in Delhi | An Indian citizen commits fraud in London |
| Basis | BNS S.1(4) | BNS S.1(5) |
|---|---|---|
| Source of extra-territorial liability | Another law in force creates it; BNS merely applies | BNS itself creates the three heads |
| Scope | Any offence for which any law makes the person triable | Murder, theft, or any BNS offence by the three categories |
| Example | Extradition treaty brings a foreign national to trial in India | Indian citizen commits a BNS offence abroad |
| Basis | IPC S.2 to S.4 | BNS S.1 |
|---|---|---|
| Structure | Four separate sections | One consolidated section with six sub-sections |
| Computer resource head | Absent | Present in S.1(5)(c), a new addition |
| Saving clause | IPC S.5 | BNS S.1(6) |
| Substance | Largely the same except for the cyber jurisdiction head | Modernised and consolidated |
Flashcards
What does BNS S.1(3) provide?
Every person shall be liable to punishment under this Sanhita and not otherwise for every act or omission contrary to its provisions committed within India.
Name the three heads of extra-territorial jurisdiction in S.1(5).
(a) Indian citizen abroad, (b) person on an Indian-registered ship or aircraft, (c) person outside India targeting an Indian computer resource.
What is new in BNS S.1(5)(c) compared to the IPC?
Extra-territorial jurisdiction over persons committing offences targeting computer resources located in India. The IPC had no equivalent.
Can a person outside India be tried for cheating victims in India?
Yes. Mobarik Ali v State of Bombay (1957) holds that where any ingredient of the offence occurs within India, India has jurisdiction.
What does BNS S.1(6) save?
The provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen, and the provisions of any special or local law.
Exam Scenario
Problem: Vikram, an Indian citizen, hacks into the email server of a company registered in Singapore from his laptop in Goa and steals trade secrets. Separately, Liu, a Chinese national physically present in Beijing, launches a ransomware attack on an Indian government hospital's computer system, encrypting patient records and demanding payment. Neither Liu nor Vikram has left the country in which they acted. Advise on jurisdiction.
Step 1: Test Vikram's case under S.1(3) directly
Vikram is within India (in Goa) and his act (hacking) is contrary to the Sanhita. S.1(3) applies without needing any extra-territorial provision.
The fact that the target server is in Singapore does not remove jurisdiction. The act was committed within India, which is sufficient.
Step 2: Test Liu's case, since the act is done abroad
Liu is not in India. The act (launching ransomware) is done in Beijing. But the effect (encryption of an Indian hospital's system) occurs on a computer resource located in India.
| Head of jurisdiction | Application |
|---|---|
| S.1(3): intra-territorial | Not satisfied; Liu is not in India |
| S.1(5)(a): Indian citizen abroad | Not satisfied; Liu is not an Indian citizen |
| S.1(5)(b): Indian vessel/aircraft | Not applicable |
| S.1(5)(c): person outside India targeting an Indian computer resource | Satisfied. The hospital system is a computer resource located in India |
Liu is triable in India under S.1(5)(c).
Step 3: Reinforce with Mobarik Ali
Even before S.1(5)(c), Mobarik Ali v State of Bombay (1957) established that where an ingredient of the offence (here, the consequence: the encryption of the Indian system) occurs within India, India has jurisdiction.
S.1(5)(c) puts this beyond doubt for cyber offences specifically, removing any argument that the ingredient theory applies only to traditional offences.
Step 4: Practical enforcement
Jurisdiction is distinct from enforcement. India has jurisdiction over Liu, but apprehending him requires:
- An extradition request (if a treaty exists with China), or
- An Interpol Red Notice, or
- Action if Liu ever enters Indian territory.
The absence of a practical mechanism for enforcement does not defeat the court's jurisdiction.
Vikram does not need extra-territorial jurisdiction. He is in India. S.1(3) suffices. Do not waste time on S.1(5) for him.
S.1(5)(c) is the BNS's innovation. Under the old IPC, the prosecution would have had to rely on the ingredient theory from Mobarik Ali alone. The BNS creates a self-standing head of jurisdiction. Cite S.1(5)(c) as the primary basis for Liu and Mobarik Ali as reinforcement.
Conclusion. Vikram is triable under S.1(3) because his act was committed within India. Liu is triable under S.1(5)(c) because he targeted an Indian computer resource from abroad.
See Also
- Concept and Definition of Crime : the principle of legality (nullum crimen sine lege) as the constitutional underpinning of territorial jurisdiction.
- Definitions under BNS S.2 : the definition of "offence" and other terms used in S.1.
- Punishments under the BNS : the punishments that attach once jurisdiction is established.