Section 208 of BNSS, 2023 — Offence Committed Outside India

Introduction

Section 208 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with offences committed outside India in specified circumstances. It extends the applicability of Indian criminal procedure to certain offences committed abroad by Indian citizens and to offences committed by non-citizens on Indian-registered ships or aircraft.

The provision creates a legal basis for dealing with such offences as though they had been committed at a place within India where the person is found or where the offence is registered in India. However, an important safeguard is imposed: the offence cannot be inquired into or tried in India without the previous sanction of the Central Government.

Statutory Basis

Section 208 applies where an offence is committed outside India:

• by a citizen of India, whether on the high seas or elsewhere; or
• by a person who is not an Indian citizen on any ship or aircraft registered in India.

In such cases, the person may be dealt with as if the offence had been committed at any place within India where:

• the person may be found; or
• the offence is registered in India.

However, no such offence may be inquired into or tried in India without the previous sanction of the Central Government.

Meaning of Section 208

Section 208 is an important provision concerning the extra-territorial application of criminal procedure.

Ordinarily, criminal jurisdiction is connected with offences committed within India. Section 208 creates a specific statutory mechanism for offences committed outside India in the circumstances expressly mentioned in the provision.

It treats the foreign offence, for purposes of Indian criminal proceedings, as though it had been committed at a relevant place within India. This legal fiction allows Indian Courts to exercise jurisdiction, subject to the requirement of prior Central Government sanction.

Object and Purpose

The provision serves several purposes:

• enables India to deal with specified offences committed outside its territory;
• provides jurisdiction over Indian citizens who commit offences abroad;
• covers offences committed by non-citizens on Indian-registered ships and aircraft;
• provides a domestic location for initiating proceedings;
• protects international relations and sovereignty by requiring prior Central Government sanction before inquiry or trial.

Section 208 therefore balances the need to prosecute certain offences having a recognised connection with India with the need for governmental control over criminal proceedings concerning conduct occurring outside Indian territory.

Scope of Section 208

Section 208 applies to two principal categories.

1. Offence Committed Outside India by an Indian Citizen

An Indian citizen who commits an offence outside India may be dealt with under Section 208.

The provision expressly states that this applies whether the offence is committed:

• on the high seas; or
• elsewhere outside India.

The nationality of the offender is therefore the connecting factor in this category.

2. Offence Committed by a Non-Citizen on an Indian-Registered Ship or Aircraft

Section 208 also applies where a person who is not an Indian citizen commits an offence outside India on:

• a ship registered in India; or
• an aircraft registered in India.

Here, the relevant connection with India is the registration of the ship or aircraft rather than the nationality of the offender.

Essential Elements

1. The Offence Must Be Committed Outside India

Section 208 specifically concerns offences committed outside India.

It therefore operates in situations where the relevant criminal conduct falls outside Indian territory, subject to the statutory conditions.

2. The Offender Must Fall Within One of the Specified Categories

The provision applies where:

• the offender is an Indian citizen; or
• the offender is a non-Indian citizen who committed the offence on an Indian-registered ship or aircraft.

3. Indian Jurisdictional Connection

The person may be dealt with as though the offence had been committed at a place within India where:

• the person is found; or
• the offence is registered in India.

The BNSS therefore provides two possible domestic connecting points.

4. Previous Sanction of the Central Government

This is a crucial requirement.

Even though Section 208 creates a basis for dealing with the offence in India, no such offence may be inquired into or tried in India without the previous sanction of the Central Government.

Legal Fiction under Section 208

Section 208 creates a legal fiction for purposes of criminal jurisdiction.

An offence actually committed outside India may be dealt with as though it had been committed at a place within India where the person may be found or where the offence is registered in India.

This does not mean that the factual location of the offence is changed. Rather, the statute provides a domestic jurisdictional basis for dealing with the foreign offence.

A recent High Court decision has described Section 208 as creating a legal fiction whereby an offence committed outside India is treated as having been committed within India for purposes of enabling domestic jurisdiction, subject to the requirement of Central Government sanction.

Central Government Sanction

The proviso to Section 208 is one of its most significant features.

It states that, notwithstanding the preceding provisions of the chapter, an offence covered by Section 208 cannot be inquired into or tried in India except with the previous sanction of the Central Government.

Therefore:

• Section 208 provides the jurisdictional basis;
• the Central Government’s previous sanction is a statutory prerequisite for inquiry or trial in India.

The sanction requirement reflects the international and diplomatic implications that may arise when India exercises criminal jurisdiction over conduct occurring outside its territory.

Procedure

The operation of Section 208 can be understood in the following sequence:

1. Determine whether the alleged offence was committed outside India.
2. Determine whether the offender is an Indian citizen.
3. If the offender is not an Indian citizen, determine whether the offence was committed on an Indian-registered ship or aircraft.
4. Identify the relevant place in India where the person may be found or where the offence is registered.
5. The offence may be dealt with as if committed at that place in India.
6. Obtain the previous sanction of the Central Government.
7. The competent Indian Court may then inquire into or try the offence in accordance with BNSS.

Examples

Example 1: Indian Citizen Abroad

An Indian citizen commits an offence while residing in another country and later returns to India.

Since the offence was committed outside India by an Indian citizen, Section 208 may provide the basis for dealing with the offence in India.

However, the offence cannot be inquired into or tried in India without the previous sanction of the Central Government.

Example 2: Offence on an Indian-Registered Aircraft

A non-Indian citizen commits an offence outside India while travelling on an aircraft registered in India.

Section 208 may apply because the offence was committed by a non-citizen on an Indian-registered aircraft.

The requirement of previous Central Government sanction continues to apply.

Example 3: Indian Citizen on the High Seas

An Indian citizen commits an offence on the high seas.

Section 208 expressly covers an Indian citizen committing an offence outside India whether on the high seas or elsewhere.

The statutory requirement of previous Central Government sanction must nevertheless be satisfied before inquiry or trial in India.

Important Distinctions

Section 208 and Ordinary Territorial Jurisdiction

Ordinary territorial jurisdiction is generally concerned with offences committed within the territorial jurisdiction of Indian Courts.

Section 208 deals with specified offences committed outside India and creates a statutory basis for dealing with them in India.

Section 208 and Section 207

Section 207 concerns an offence committed outside the local jurisdiction of a Magistrate but within the broader territorial framework relevant to Indian Courts.

Section 208 is different because it concerns offences committed outside India.

Section 208 and Section 209

Section 208 establishes the jurisdictional framework for offences committed outside India.

Section 209 deals with the receipt of evidence relating to offences committed outside India when such offences are being inquired into or tried under Section 208.

Thus, Section 208 primarily concerns jurisdiction, while Section 209 concerns the evidentiary mechanism.

Section 208 and Section 199

Section 199 deals with situations where an act is done in one place and the consequence ensues in another.

Section 208 addresses offences committed outside India in the specific circumstances recognised by the provision.

BNSS and CrPC

Section 208 of BNSS broadly corresponds to Section 188 of the Code of Criminal Procedure, 1973. The Delhi Police Academy’s BNSS handbook maps Section 188 CrPC to Section 208 BNSS.

The basic principle has been retained: specified offences committed outside India may be dealt with in India as though committed at a relevant place within India, subject to prior Central Government sanction.

A significant BNSS development is the express inclusion of the place where the offence is registered in India as an additional connecting point, alongside the place where the person may be found.

This expands the jurisdictional mechanism compared with the earlier formulation.

Judicial Interpretation

Sartaj Khan v. State of Uttarakhand

The Supreme Court has considered the analogous provision under Section 188 of the CrPC.

The principle recognised in relation to Section 188 CrPC is that where the entirety of the offence is committed outside India, the statutory requirement of Central Government sanction becomes relevant before the offence can be inquired into or tried in India.

Where part of the offence has been committed within India, the situation may be governed by the ordinary territorial jurisdiction provisions rather than exclusively by the extra-territorial mechanism of Section 208.

This distinction remains relevant when interpreting the substantially corresponding BNSS provision. A recent High Court decision has also referred to this Supreme Court principle while considering Section 208 BNSS.

Relationship with BNS and BSA

The Bharatiya Nyaya Sanhita, 2023 (BNS) determines whether the underlying conduct constitutes a criminal offence and prescribes the applicable punishment.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides the procedural mechanism for dealing with the offence in India.

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs the evidentiary questions arising during the proceeding.

Section 208 is therefore primarily a jurisdictional and procedural provision dealing with offences having an extra-territorial element.

Important BNSS Provisions

• Section 197: Ordinary place of inquiry and trial.
• Section 198: Place of inquiry or trial.
• Section 199: Offence triable where act is done or consequence ensues.
• Section 200: Place of trial where act is an offence by reason of relation to other offence.
• Section 201: Place of trial in case of certain offences.
• Section 202: Offences committed by means of electronic communications, letters, etc.
• Section 203: Offence committed on journey or voyage.
• Section 204: Place of trial for offences triable together.
• Section 205: Power to order cases to be tried in different Sessions divisions.
• Section 206: High Court to decide, in case of doubt, district where inquiry or trial shall take place.
• Section 207: Power to issue summons or warrant for offence committed beyond local jurisdiction.
• Section 208: Offence committed outside India.
• Section 209: Receipt of evidence relating to offences committed outside India.

Common Confusions

Can every offence committed abroad by any foreign national be tried in India under Section 208?

No.

Section 208 applies only to the categories expressly specified in the provision: an offence committed outside India by an Indian citizen, or by a non-citizen on an Indian-registered ship or aircraft.

Is Central Government sanction optional?

No.

The proviso expressly requires the previous sanction of the Central Government before an offence covered by Section 208 can be inquired into or tried in India.

Does Section 208 mean that the offence actually occurred in India?

No.

The offence remains factually an offence committed outside India. Section 208 creates a legal fiction for determining the domestic jurisdiction in which the person may be dealt with.

Can the person be dealt with where the offence is registered in India?

Yes.

The BNSS expressly adds the place where the offence is registered in India as a relevant jurisdictional connecting point.

Does Section 208 apply to offences committed on Indian-registered aircraft by Indian citizens?

Yes.

An Indian citizen who commits an offence outside India is already covered by Section 208. The separate category in clause (b) additionally covers a non-Indian citizen committing an offence on an Indian-registered ship or aircraft.

Quick Revision

• Section 208 BNSS deals with offences committed outside India.
• It applies to an offence committed outside India by an Indian citizen, whether on the high seas or elsewhere.
• It also applies to an offence committed by a non-Indian citizen on an Indian-registered ship or aircraft.
• The person may be dealt with as if the offence had been committed at a place in India where the person is found or where the offence is registered in India.
• Previous sanction of the Central Government is mandatory before inquiry or trial in India.
• Section 208 creates a statutory legal fiction for territorial jurisdiction.
• It broadly corresponds to Section 188 CrPC, 1973.
• Section 209 BNSS deals with receipt of evidence relating to offences committed outside India.
• The provision is primarily concerned with extra-territorial criminal jurisdiction.

ALSO READ: Section 207 – Power to issue summons or warrant for offence committed beyond local jurisdiction

Conclusion

Section 208 of the BNSS provides the statutory foundation for dealing in India with specified offences committed outside Indian territory. It covers Indian citizens who commit offences abroad and non-citizens who commit offences on Indian-registered ships or aircraft. At the same time, the requirement of previous Central Government sanction places an important limitation on the exercise of Indian criminal jurisdiction over conduct occurring outside India.