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may by Order in Council give the amending provisions the same extra-territorial operation as the provisions amended 1.

The Indian Legislature has exercised its power of legislating for offences committed outside British India by provisions which are to be found in the Penal Code of 1860 and in the Code of Criminal Procedure, 1898.

Under s. 3 of the Penal Code, any person liable by any law passed by the Governor-General of India in Council to be tried for an offence committed beyond the territories of British India, is to be dealt with according to the provisions of the Code, for any act committed beyond those territories, in the same manner as if the act had been committed within them.

Under 8. 4 of the Penal Code, every servant of the King is subject to punishment under the Code for every act or omission contrary to its provisions, of which, whilst in such service, he is guilty within the dominions of any prince or State in alliance with the King by virtue of any treaty or engagement theretofore entered into by the East India Company or made in the name of the Crown by any Government of India.

Section 188 of the Code of Criminal Procedure, 1898, enacts that

When a native Indian subject of Her Majesty commits an offence at Liability any place without and beyond the limits of British India, or

when any British subject commits an offence in the territories of Native Prince or Chief in India, or

any

of British subjects for offences

out of

when a servant of the Queen (whether a British subject or not) com- commits an offence in the territories of any Native Prince or Chief in India, mitted he may be dealt with in respect of such offence as if it had been com- British mitted at any place within British India at which he may be found : India. Provided that no charge as to any such offence shall be inquired Political into in British India unless the Political Agent, if there is one, for the Agents to territory in which the offence is alleged to have been committed, certifies certify that, in his opinion, the charge ought to be inquired into in British inquiry India; and, where there is no Political Agent, the sanction of the Local into Government shall be required:

See remarks on this enactment in Westlake, Chapters on Principles of International Law, p. 222.

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Provided, also, that any proceedings taken against any person under this section which would be a bar to subsequent proceedings against such person for the same offence if such offence had been committed in British India shall be a bar to further proceedings against him under the Foreign Jurisdiction and Extradition Act, 1879, in respect of the same offence in any territory beyond the limits of British India.

The provisions of the existing Code of Criminal Procedure may be taken to represent the construction which the Indian Legislature has thought it safe and prudent to place on the enactments giving that legislature power to make laws with extra-territorial operation 1.

The general conclusions appear to be

1. The Indian Legislature is not in any sense an agent or delegate of the Imperial Parliament 2, but its powers are limited by the terms of the Acts of Parliament by which those powers are conferred.

2. The Indian Legislature has power to make laws-
(a) for native Indian subjects of His Majesty or native
Indian soldiers in His Majesty's Indian forces in any
part of the world; and

(b) for British subjects, in a narrow sense, and servants
of the Government, in Native States.

3. Whether the Indian Legislature has power to make laws for British subjects, not being either European British subjects or natives of India, in Native States, or to make

1 The construction of the provisions as to extra-territorial jurisdiction in earlier editions of the Code of Criminal Procedure, and in the Indian Foreign Jurisdiction and Extradition Act, 1879, now superseded by an Order under the Foreign Jurisdiction Act of the British Parliament, gave rise, in the Indian courts, to difficult questions, which are illustrated by the following cases: R. v. Pirtal, (1873) 10 Bom. Rep. 356; R. v. Lukhya Govind, (1875) I. L. R. 1 Bom. 50; Empress v. Surmook Singh, (1879) I. L. R. 2 All. 218; Empress v. S. Moorga Chatty, (1881) I. L. R. 5 Bom. 338; Siddha v. Biligiri, (1884) I. L. R. 7 Mad. 354; Queen Empress v. Edwards, (1884) I. L. R. 9 Bom. 333; Queen v. Abdul Latib, (1885) I. L. R. 10 Bom. 186; Gregory v. Vudakasi Kanjani, (1886) I. L. R. 10 Mad. 21; Queen Empress v. Mangal Takchand, (1886) I. L. R. 10 Bom. 274; Queen Empress v. Kirpal Singh, (1887) I. L. R. 9 All. 523; Queen Empress v. Daya Bhima, (1888) I. L. R. 13 Bom. 147; Re Hayes, (1889) I. L. R. 12 Mad. 39; Queen Empress v. Natwarai, (1891) I. L. R. 16 Bom. 178; Queen Empress v. Ganpatras Ram Chandra, (1893) I. L. R. 19 Bom. 105.

2 R. v. Burah, L. R. 3 App. Cas. 889.

laws for British subjects not being natives of India, or for servants of the Government, as such, in States outside India as defined by the Interpretation Act and by the Indian General Clauses Act, that is to say, in places which are not either in British India or in the territory of a Native State, is open to question.

4. Except in these cases, and except in pursuance of special enactments, such as the Indian Marine Service Act, the operation of Acts of the Indian Legislature is strictly territorial, and extends only to persons and things within British India. 5. The Indian Legislature has gone further than Parliament in the exercise of the extra-territorial powers which it possesses.

powers of

But the Governor-General in Council has in his executive Extraterritorial capacity extra-territorial powers far wider than those which may be exercised by the Indian Legislature. By successive governorgeneral in charters and acts extensive powers of sovereignty have been executive capacity. delegated by the English Crown, first, to the East India Company, and afterwards to the Governor-General in Council as its successor. The Governor-General in Council is the representative in India of the British Crown, and as such can exercise under delegated authority the powers incidental to sovereignty with reference both to British India and to neighbouring territories, subject to the restrictions imposed by Parliamentary legislation and to the control exercised by the Crown through the Secretary of State for India. Thus he can make treaties and conventions with the rulers, not only of Native States within the boundaries of what is usually treated as India, but also of adjoining States which are commonly treated as extra-Indian, such as Afghanistan and Nepaul, and can acquire and exercise within the territories of such States powers of legislation and jurisdiction similar to those which are exercised by the Crown in foreign countries in accordance with the Foreign Jurisdiction Acts and the Orders in Council under them, and extending to persons who are not subjects of the King.

The existence of these powers was until recently declared, and their exercise was to some extent regulated, by the Foreign Jurisdiction and Extradition Act, 1879, of the Government of India, which contained recitals corresponding to those in the Foreign Jurisdiction Act, 1890, passed by the Parliament at Westminster. But a few years ago it was recognized that the extra-territorial powers exercisable by the Governor-General in Council, as representative of the British Crown, rested on the same principles, and might with advantage be based on the same statutory foundations, as the extraterritorial powers of the British Crown in other parts of the world. Accordingly, in 1902, an Order in Council under the Act of 1890 made provision for the exercise of foreign jurisdiction by the Governor-General of India in Council, and the Indian Act of 1879, having been superseded as to foreign jurisdiction by this Order, and as to other matters by later Indian legislation, was formally repealed by the Indian Act XV of 1903.

The Order of 1902 is of sufficient importance to justify its. being set out in full. It runs as follows:

1. This Order may be cited as the Indian (Foreign Jurisdiction) Order in Council, 1902.

2. The limits of this Order are the territories of India outside British India, and any other territories which may be declared by His Majesty in Council to be territories in which jurisdiction is exercised by or on behalf of His Majesty through the Governor-General of India in Council, or some authority subordinate to him, including the territorial waters of any such territories.

3. The Governor-General of India in Council may, on His Majesty's behalf, exercise any power or jurisdiction which His Majesty or the Governor-General of India in Council for the time being has within the limits of this Order, and may delegate any such power or jurisdiction to any servant of the British Indian Government in such manner, and to such extent, as the Governor-General in Council from time to time thinks fit.

4. The Governor-General in Council may make such rules and orders as may seem expedient for carrying this Order into effect, and in particular

(a) for determining the law and procedure to be observed, whether by applying with or without modifications all or any of the provisions of any enactment in force elsewhere, or otherwise;

(b) for determining the persons who are to exercise jurisdiction, either generally or in particular classes of cases, and the powers to be exercised by them;

(c) for determining the courts, authorities, judges, and magistrates, by whom, and for regulating the manner in which, any jurisdiction, auxiliary or incidental to or consequential on the jurisdiction exercised under this Order, is to be exercised in British India; (d) for regulating the amount, collection, and application of fees. 5. All appointments, delegations, certificates, requisitions, rules, notifications, processes, orders, and directions made or issued under or in pursuance of any enactment of the Indian Legislature regulating the exercise of foreign jurisdiction, are hereby confirmed, and shall have effect as if made or issued under this Order.

6. The Interpretation Act, 1889, shall apply to the construction of this Order.

The substitution of an Order in Council under the Foreign Jurisdiction Act, 1890, for an Act of the Indian Legislature has placed the extra-territorial jurisdiction of the GovernorGeneral in Council on a wider and firmer basis, and has removed many of the doubts and difficulties to which reference was made in the first edition of this book, and which arose from the limitations on the powers of the Indian Legislature, and from the language of the statutes by which those powers were conferred.

The language of the Order is wide enough to include every possible source of extra-territorial authority. The powers delegated are both executive and legislative, and are sufficiently extensive to cover all the extra-territorial powers previously exercised in accordance with Indian Acts. To guard against any breach of continuity, all appointments, rules, orders and other things made or done under any previous Indian Act regulating the exercise of foreign jurisdiction are expressly confirmed, and are to have effect as if made or done under the Order of 1902. The orders thus confirmed, and the orders issued under the new system, have usually taken the form of orders for different Native States, or for regions or districts or places within them, constituting civil and criminal courts of different grades, and declaring the law which they are to administer, that law consisting of

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