Report No. 41
1.1. Territorial extent of the Code.-
The Code, as enacted in 1898, provided in section 1(2) that it extended to the whole of British India. This seemingly comprehensive extent clause had, however, to be read in the light of the Scheduled Districts Act, 1874, which remained on the statute book till the Government of India Act, 1935, came into force. The Scheduled 'Districts Act listed in a Schedule a large number of backward areas in different parts of India and gave them the common name of scheduled districts.
By sections 3, 4 and 5 of the Act, the Local Government was enabled, with the sanction of the Governo.-General in Council, to notify what enactments were in force and what enactments were not in force in any of the scheduled districts and to extend to the scheduled districts any Act in force in British India. Section 6 of the Act enabled the Local Government, inter alia, to appoint officers to administer criminal justice within a scheduled district, to regulate the procedure of such officers but not so as to restrict the operation of any enactment in force in the district, and to direct by what authorities any jurisdiction, powers or duties incidental to the operation of any such enactment shall be exercised or performed.
1.2. Not in force in some "scheduled districts".-
After the passing of the Code in 1898, the Local Government acting under the Scheduled Districts Act declared the Code to be in force in some scheduled districts and not to be in force in some others, with the result that in spite of the clea.-cut extent clause in that first section of the Code, it required research into old notifications and directions to find out whether the Code was actually in force in a scheduled district and, if so, in what form.
When the Government of India Act, 1935, was brought into force on the 1st April, 1937, the Scheduled Districts Act, 1874, was repealed by Adaptation of Indian Laws Orde.-i.-Council but "without prejudice to the continued validity of any notification, appointment, regulation, direction or determination made thereunder before" that date. The Orde.-i.-Council further provided that the appropriate Government, Central or Provincial, may within six months of that date adapt any enactment in force in a scheduled district by virtue of a notification under the Scheduled Districts Act in order to bring the enactment into accord with the Government of India Act, 1935.
1.3. Changes in extent clause after independence.-
The extent clause in the Code was modified thrice between 1947 and 1951 in consequence of the constitutional changes that took place during those eventful years. First the expression "whole of British India" was changed to "all the Provinces of India" by the Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948, meaning thereby all the provinces of the Dominion of India. Then it was changed by the Adaptation of Laws Order, 1950, to read "the whole of India except Part B States".
Thirdly, the Code of Criminal Procedure (Amendment) Act, 1951, which came into force on the 1st April, 1951, substituted "the State of Jammu and Kashmir and Manipur" for "Part B States" thereby enlarging the territorial extent of the Code to the whole of India except these two named States: (Manipur was then a Part C State). Finally in 1956 the Union Territories Laws (Amendment) Act, 1956, omitted the reference to Manipur in the extent clause.
1.4. Code does not apply to Nagalan.-Decision of Supreme Court.-
While by virtue of the two Acts of Parliament last mentioned the Code ostensibly extends to the whole of India except the State of Jammu and Kashmir, it is, in fact, not in force in the State of Nagaland nor in the autonomous districts and the North East Frontier Tract of Assam. The question whether the Code is in force in Nagaland came up before the Supreme Court for consideration in State of Nagaland v. Ratan Singh, (1966) 3 SCR 830).
The Court held that the Code did not apply to the State but certain rules made by the Governor of Assam under section 6 of the Scheduled Districts Act, 1874, on March 25, 1937, in supersession of all previous orders on the subject continued to be in force and governed the trial of offenders in the State. The Court concluded its judgment with the following observations.-
"We may, however, say that it would be better if, as soon as it is found to be expedient, all Rules are cancelled and one uniform set of Rules is made for the whole of this area. This would obviate having to find out through the mazes of history and the congeries of rules, notifications and regulations what law is applicable. If any difficulty is felt in making new rules, recourse may easily be taken to the provisions of section 31 of the State of Nagaland Act which enables the President, by order, to remove any difficulty to give effect to the provisions of the State of Nagaland Act.
The history of this area shows that there have been difficulties in the past in ascertaining laws which were applicable at any point of time in any particular area and led to the passing of many Acts of British Parliament and of the Governo.-General in Council to remove such difficulties. We do not think that such a state of affairs should continue indefinitely when the State of Nagaland Act itself gives sufficient power to remove difficulties."1
1. Ibid., pp. 85.-55.
1.5. Code does not apply to Assam tribal areas.-
The Commission is informed by the Government of Assam that each of the autonomous districts of Assam has its own rules fo.-the administration of justice made under the Scheduled Districts Act, 1874, and subsequently modified by the Assam Autonomous Districts (Administration of Justice) Regulation, 1952, and the Code of Criminal Procedure is not as such in force in these districts. It is also not in force in the four frontier tracts which comprise the North East Frontier Agency. According to the Government of Assam, some small portions of these tracts falling in the plains were transferred to the districts of Darrang and Lakhimpur in February 1951, but the Code has even now not been made applicable to these areas.
1.6. No excluded areas in other States.-
So far as the other States and Union Territories are concerned, no area appears to be excluded from the operation of the Code either because it was a scheduled district before 1937 or because it is a scheduled area under the Fifth Schedule to the Constitution.
1.7. Amendment of extent clause recommended.-
It seems to us desirable that the extent clause in the Code should state the factual position, obviating, as the Supreme Court has put it, a need "to find out through the mazes of history and the congeries of rules, notifications and regulations" whether the Code is applicable or not in a particular area. We propose that it should be amended to read.-
"It extends to the whole of India except the State of Jammu and Kashmir, the State of Nagaland and the tribal areas1 within the State of Assam; etc.,"
1. See para. 20(1) of the Sixth Schedule to the Constitution.
1.8. Position in Jammu and Kashmir.-
While there appears to be good justification for Nagaland and the tribal areas of Assam having their own simple rules for the administration of criminal justice and for not introducing the complicated provisions of the Code which are apparently not suitable for the social conditions prevailing therein, it seems to us highly anomalous that Jammu and Kashmir should be excluded from the operation of the Code. This is due to the fact that under the Constitution (Application to Jammu and Kashmir) Order, the power of Parliament to legislate for this State in respect of matters mentioned in the Concurrent List is limited to a few entries and the entry relating to criminal procedure (entry 2 in List III) is not one of them.
As regards criminal law also, the power of Parliament to legislate for Jammu & Kashmir is very limited. Neither the Indian Penal Code nor the Code of Criminal Procedure, 1898, is in force in the State. It has two separate Codes, the Ranbir Penal Code and the Jammu and Kashmir Criminal Procedure Code, which are practically the same in wording and arrangement of sections as the Codes in force in the rest of India.
1.9. Anomaly under section 188.-
It will be noticed that by virtue of the definition of "India" in section 4(1)(i) of the Code, any place in the State of Jammu and Kashmir is outside "India" for the purposes of the Code. This gives rise to an anomalous situation under section 188 of the Code. If a citizen of India, whether he is a resident of that State or of some other State in India, commits in Jammu an offence punishable under the Indian Penal Code, he may be dealt with at any place in any other State of India where he may be found, but before the charge is inquired into at the latter place, the sanction of the State Government will be required (there being no "Political Agent" for the State of Jammu and Kashmir).1
It is anomalous that all offences punishable under the Indian Penal Code, when committed in the State of Jammu and Kashmir, should be triable in any place in the rest of India where the offenders may be found, without any reference to the venue rules for inquiry and trial contained in sections 177 to 183 of the Criminal Procedure Code. This curious situation is due to the fact that these two Codes do not extend to the State, and even Parliament's power to legislate for the State does not extend to criminal law and criminal procedure. We recommend that the anomaly should be removed, by first suitably amending the Constitution (Application to Jammu and Kashmir) Order, 1950, under Article 370, and then by extending the two Codes to the State.
1. State v. Om Parkash, 1966 Cr 14 366 (Punj). In this case the accused was alleged to have committed bigamy in Jammu and returned to his ordinary place of residence in Punjab.-
1.10. Code extends also to territorial waters.-
Another point that requires consideration with reference to the extent clause in the Code is the exercise of criminal jurisdiction in and in relation to the territorial waters of India. The Code extends to the whole of the territory of India except the territory of the State of Jammu and Kashmir. Notwithstanding the use of the word "territory" which etymologically has a land significance, there is of course no doubt that the territory of India, as of any sovereign State, includes its territorial waters. This internationally accepted principle has recently been formulated in the Convention on the Territorial Sea and the Contiguous Zone, 1958, in the following terms1.-
"The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.
The sovereignty of a coastal State extends also to the air space over the territorial sea as well as to its bed and subsoil."
A Presidential Proclamation announced on the 30th September, 1967, that the territorial waters of India extend into the sea to a distance of 12 nautical miles measuring from the appropriate base line. The Code accordingly extends to the land territory of India (excluding Jammu and Kashmir) and to the belt of sea, 12 nautical miles wide, adjacent to the coast.
1. See Article 1 an d2 of the Convention.