Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Reciprocal Arrangements and Forfeiture Sections 111 to 124
Reciprocal Arrangements and Forfeiture of Property under the BNSS, 2023: Chapter VIII, Sections 111 to 124, Letters of Request and the Proceeds of Crime
Crime does not stop at a frontier, and neither does its profit. A conspiracy may be directed from one country and executed in another; a witness may be abroad; the money may be somewhere else again. No Indian court can compel a witness in another State to attend, and no Indian officer can search premises there. Chapter VIII of the Bharatiya Nagarik Suraksha Sanhita, 2023 supplies what the territorial limit of Indian authority makes necessary: a system of request and reciprocity, and a machinery for the attachment and forfeiture of property traced through it.
The chapter contains fourteen sections. Twelve correspond to sections 105A to 105L of the Code of Criminal Procedure, 1973, which were inserted in 1993. Two, sections 112 and 113, are the letters of request, which stood in the old Code as sections 166A and 166B in the chapter on investigation and have been moved into this chapter. The subject of international assistance is therefore now gathered in one place, which is a considerable improvement in arrangement even though the substance is largely unchanged.
Figure 1: Chapter VIII at a glance
1. The Definitions: Section 111
Expression | Meaning |
|---|---|
Contracting State | Any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country through a treaty or otherwise. The chapter operates only in relation to such a State, and the existence of the arrangement is the foundation of every power in it |
Identified property | Any property which is identified, under the provisions of this chapter, to be the proceeds of crime |
Proceeds of crime | Any property derived or obtained, directly or indirectly, by any person as a result of criminal activity, including crime involving currency transfers, or the value of any such property |
Property | Property and assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible, and deeds and instruments evidencing title to or interest in such property or assets derived or used in the commission of an offence, including property obtained through proceeds of crime |
Tracing | Determining the nature, source, disposition, movement, title or ownership of property |
⚠ Two definitions worth dwelling on “Proceeds of crime” includes the value of the property, not merely the property itself. That matters because a person who has converted the proceeds into some other form, or has dissipated them, does not thereby put them beyond reach: the value can be attached in other property. “Contracting State” is the jurisdictional gateway. Every power in the chapter operates in relation to a country with which the Central Government has made an arrangement by treaty or otherwise. Where no arrangement exists, the chapter provides nothing, and assistance depends on the comity of nations and on whatever ad hoc arrangement can be made. Section 124 permits the Central Government to make the application of the chapter to a particular State subject to conditions, exceptions or qualifications, which means that the extent of assistance may differ from one State to another. |
2. Letters of Request: Sections 112, 113 and 123
2.1 Outward: investigation in a country outside India
Section 112, BNSS 2023 (1) Notwithstanding anything contained in this Sanhita, if, in the course of an investigation into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that evidence may be available in a country or place outside India, any Criminal Court may issue a letter of request to a Court or an authority in that country or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement, and to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case, and to forward all the evidence so taken or collected to the Court issuing such letter. (2) The letter of request shall be transmitted in such manner as the Central Government may specify in this behalf. (3) Every statement recorded or document or thing received under sub-section (1) shall be deemed to be the evidence collected during the course of investigation under this Chapter. |
Three features of the section govern its use. The application must come from the investigating officer or an officer superior in rank, so a letter of request is not issued at the instance of a private party. The request is addressed to a court or competent authority abroad and not to a witness, because an Indian court has no authority over a person outside India. And sub-section (3) is what makes the section worth using: what is received is deemed to be evidence collected during the investigation, so it forms part of the material accompanying the report under section 193 and does not have to be proved as something exceptional.
2.2 Inward: a request received from outside India
Section 113 provides for the reverse case. Upon receipt of a letter of request from a court or authority in a country or place outside India to examine a person or to require the production of a document or thing in relation to an offence under investigation in that country, the Central Government may forward it to the Chief Judicial Magistrate or such Magistrate as it may appoint. That Magistrate, or a police officer to whom he entrusts the matter, proceeds to summon the person, record his statement and take any document or thing, and the evidence so collected is forwarded by the Magistrate to the Central Government for transmission to the requesting authority.
Section 123 supplies the common machinery for both directions: every letter of request, summons or warrant received by the Central Government from a contracting State, and every one to be transmitted to such a State, shall be transmitted in such form and in such manner as the Central Government may by notification specify. The Central Government is therefore the channel in both directions, and a court does not correspond directly with a foreign court.
3. Assistance in Transfer of Persons and in Attachment
Provision | Content |
|---|---|
Section 114 | Assistance in securing transfer of persons. Where a person is in custody in India and his presence is required in a contracting State, or a person in custody in a contracting State is required in India, the Central Government may, on a request and with the consent of the person concerned where the section requires it, take steps to secure the transfer of that person. The section also provides for the return of the person after his evidence has been taken, and for the period of his absence to be reckoned as part of his sentence |
Section 115 | Assistance in relation to orders of attachment or forfeiture. Where a Court in India has made an order of attachment or forfeiture of property believed to be the proceeds of crime and the property is suspected to be in a contracting State, the Court may issue a letter of request to a court or authority in that State to execute the order. Conversely, where a letter of request is received from a contracting State for the attachment or forfeiture of property suspected to be in India, the Central Government forwards it to a Court, which may make an order of attachment or forfeiture or take such other steps as it thinks fit |
📖 State of West Bengal v. Jugal Kishore More, AIR 1969 SC 1171 Facts: A warrant of arrest was issued by a Presidency Magistrate in Calcutta against a person residing in Hong Kong, in a case of criminal conspiracy and smuggling. The warrant was endorsed by a magistrate in Hong Kong under the local law and he was arrested there. He contended that the warrant issued by the Indian court was without jurisdiction, and that in the absence of the person within India the court could not issue process against him at all. Held: The Supreme Court held that a criminal court in India has the power to issue a warrant against a person who is outside India, and that the warrant is not bad merely because the person is beyond the reach of the process at the time it is issued. The question of enforcement in the foreign territory is a different matter, governed by the law of that territory and by such arrangements as exist between the two countries, and the Indian warrant operates as the foundation on which that foreign process is set in motion. The Court distinguished the issue of the warrant, which is an act of the Indian court, from its execution, which depends on the law and co-operation of the State where the person is. Ratio: An Indian court may issue process against a person abroad. Whether it can be executed there depends on the law of that country and on the reciprocal arrangements between the two States, which is the field this chapter occupies. |
📖 Bhavesh Jayanti Lakhani v. State of Maharashtra, (2009) 9 SCC 551 Facts: A red corner notice was issued through Interpol at the instance of a foreign State in respect of a person resident in India, and steps were taken by the Indian police on the strength of it. The question was the legal effect of such a notice in India, and what the obligations and the limits of the Indian authorities are when acting on a request originating abroad. Held: The Supreme Court examined the machinery of international co-operation in criminal matters and held that a red corner notice is not a warrant of arrest and does not by itself authorise arrest or detention in India. Action on a foreign request must be taken in accordance with Indian law, and where that law requires an order of a court, an order must be obtained. The Court emphasised that the liberty of a person in India is governed by the Constitution and the Indian statutes, and that a request from a foreign State, however framed, cannot displace them; the appropriate route for securing a person is the machinery of extradition and the statutory provisions for reciprocal assistance. Ratio: International co-operation operates through, and not around, domestic law. A request or a notice originating abroad has only the effect that Indian law gives it, and the safeguards of Indian criminal procedure continue to apply. |
4. The Forfeiture Machinery: Sections 116 to 122
Figure 2: The six stages of forfeiture
4.1 Identifying and tracing: section 116
Where a Court has made an order for attachment or forfeiture, or where a request has been received from a contracting State, the Court may direct any officer of the Central or State Government to take all steps necessary for tracing and identifying property which is or may be the proceeds of crime. Such steps may include any inquiry, investigation or survey in respect of any person, place, property, assets, documents, books of account or any other relevant matter, and they are carried out in such manner and by such person as the Court may direct. For the purpose of an inquiry, investigation or survey, the designated officer has all the powers of a Civil Court in respect of discovery and inspection, enforcing the attendance of any person and examining him on oath, compelling the production of books of account and other documents, and issuing commissions for the examination of witnesses and documents.
4.2 Seizure or attachment: section 117
Where any officer conducting an inquiry or investigation under section 116 has a reason to believe that any property in relation to which such inquiry is being conducted is likely to be concealed, transferred or dealt with in any manner which will result in the disposal of such property, he may make an order for seizing such property; and where it is not practicable to seize it, he may make an order of attachment directing that such property shall not be transferred or otherwise dealt with except with the prior permission of the officer making the order. A copy of the order is served on the person concerned.
4.3 Management: section 118
The Court may appoint the District Magistrate of the area where the property is situated, or any other officer nominated by the District Magistrate, to perform the functions of an Administrator of the property. The Administrator receives and manages the property in such manner and subject to such conditions as the Central Government may specify, and takes such measures as the Central Government may direct to dispose of property which is forfeited to it.
4.4 Notice and forfeiture: sections 119 and 120
If as a result of the inquiry, investigation or survey under section 116 the Court has reason to believe that all or any of the properties are proceeds of crime, it serves a notice upon the person affected calling upon him within thirty days to indicate the source of income, earnings or assets out of which, or by means of which, he has acquired the property, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties should not be declared to be the proceeds of crime and forfeited to the Central Government.
Under section 120 the Court, after considering the explanation, if any, and the material before it, and after giving the person affected a reasonable opportunity of being heard, records a finding whether all or any of the properties in question are proceeds of crime. Where it is satisfied that some of the properties referred to in the notice are proceeds of crime but is not able to identify specifically which, it may specify the properties which to the best of its judgment are the proceeds of crime and record a finding accordingly. Where a finding is recorded, the Court declares that such property stands forfeited to the Central Government free from all encumbrances.
4.5 Fine in lieu of forfeiture: section 121
Where the Court makes a declaration under section 120 and it is a case where the source of only a part of the property has not been proved to its satisfaction, it shall make an order giving the person affected an option to pay, in lieu of forfeiture, a fine equal to the market value of that part. Before making such an order the person affected shall be given a reasonable opportunity of being heard. Where he pays the fine within the time allowed, the Court may by order revoke the declaration of forfeiture, and thereupon the property stands released.
4.6 Transfers null and void: section 122
Where, after the making of an order under section 117(1) or the issue of a notice under section 119, any property referred to in that order or notice is transferred by any mode whatsoever, such transfer shall, for the purposes of the proceedings under this chapter, be ignored; and if such property is subsequently forfeited to the Central Government under section 120, the transfer shall be deemed to be null and void. The provision closes the obvious escape, which is a transfer to a relative or a nominee after the proceeding has begun.
5. Chapter VIII and Section 107 Compared
The Sanhita now contains two separate machineries for the attachment and forfeiture of the proceeds of crime, and it is worth setting them side by side, because they operate in different situations and the distinction is easy to miss.
Section 107, Chapter VII | Sections 116 to 122, Chapter VIII | |
|---|---|---|
International element | Not required. It applies to any property derived from criminal activity within India | Required. The chapter operates in relation to a contracting State, and is set in motion by an order for attachment or forfeiture or by a request from such a State |
Who initiates | A police officer, with the approval of the Superintendent or Commissioner of Police | The Court, on an order already made or on a request received |
The first step | An application to the Court for attachment | Tracing and identifying the property under section 116, with the powers of a Civil Court |
Notice | A show-cause notice returnable in fourteen days | A notice under section 119 calling for the source of the property within thirty days |
Outcome | Attachment, and on satisfaction, forfeiture and distribution of the proceeds to the persons affected by the crime | Forfeiture to the Central Government free from all encumbrances, with an option of a fine in lieu where the source of only part is unproved |
Novelty | Entirely new to the Sanhita | Carried forward from the CrPC, where it was inserted in 1993 |
⚠ The difference that matters Section 107 forfeits to the Central Government but for distribution to the victims: the section provides for the proceeds to be distributed among the persons affected by the crime. Chapter VIII forfeits to the Central Government simply. Section 107 is a domestic power exercisable in any case; Chapter VIII is a machinery of international co-operation and does not operate at all unless a contracting State is involved. A practitioner faced with a question about attachment of the proceeds of crime should therefore ask first whether the property or the request has a foreign element. If it does not, section 107 is the provision; if it does, Chapter VIII is. |
6. Key Takeaways
The position stated shortly 1. Chapter VIII contains fourteen sections, 111 to 124. Twelve correspond to sections 105A to 105L of the CrPC; sections 112 and 113 were moved into this chapter from the chapter on investigation, where they stood as sections 166A and 166B. 2. A contracting State is a country or place outside India with which the Central Government has made arrangements by treaty or otherwise. Every power in the chapter depends on that arrangement, and section 124 permits the application of the chapter to a particular State to be made subject to conditions and exceptions. 3. Proceeds of crime includes the value of the property, so conversion or dissipation does not put it beyond reach. 4. Section 112: a Criminal Court may issue a letter of request to a court or authority abroad to examine a person and require production, on the application of the investigating officer or a superior. What is received is deemed to be evidence collected during the investigation. 5. Section 113 provides for the converse, and section 123 makes the Central Government the channel in both directions. 6. Section 114 provides for assistance in the transfer of persons in custody; section 115 for assistance in relation to orders of attachment or forfeiture, in both directions. 7. The forfeiture machinery runs in six stages: identify (s.116, with the powers of a Civil Court), seize or attach (s.117), manage through an Administrator who is the District Magistrate or his nominee (s.118), notice calling for the source within thirty days (s.119), forfeiture to the Central Government free from encumbrances (s.120), and a fine in lieu where the source of only part is unproved (s.121). 8. Section 122 makes any transfer after an order under section 117 or a notice under section 119 liable to be ignored, and null and void if the property is forfeited. 9. An Indian court may issue process against a person abroad; whether it can be executed there depends on the law of that country and on the reciprocal arrangements: Jugal Kishore More. 10. International co-operation operates through domestic law, not around it. A red corner notice is not a warrant, and the safeguards of Indian criminal procedure continue to apply: Bhavesh Jayanti Lakhani. |
7. Frequently Asked Questions
What is a contracting State under the BNSS?
Any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of that country through a treaty or otherwise: section 111. The powers in Chapter VIII operate only in relation to such a State.
What is a letter of request?
A request issued by a Criminal Court to a court or competent authority in a country outside India to examine a person orally and record his statement, and to require the production of any document or thing, and to forward the evidence so collected. It is issued under section 112 on the application of the investigating officer or a superior, and transmitted through the Central Government.
Is evidence collected abroad admissible in India?
Section 112(3) provides that every statement recorded, and every document or thing received, under a letter of request shall be deemed to be evidence collected during the course of the investigation. It therefore forms part of the material accompanying the report under section 193, and its admissibility and weight at trial are governed by the Bharatiya Sakshya Adhiniyam in the ordinary way.
Can property situated abroad be attached?
Yes, through a request. Section 115 permits a Court in India that has made an order of attachment or forfeiture to issue a letter of request to a court or authority in a contracting State to execute it. Section 86, in Chapter VI, separately permits a request for the identification, attachment and forfeiture of the property of a proclaimed person situated abroad.
What is the difference between section 107 and Chapter VIII?
Section 107 is a domestic power, exercisable by a police officer with the approval of a Superintendent or Commissioner, in any case, with forfeiture and distribution of the proceeds to the persons affected by the crime. Chapter VIII is a machinery of international co-operation, operating only where a contracting State is involved, with forfeiture to the Central Government and an option of a fine in lieu.
Is a red corner notice a warrant of arrest?
No. The Supreme Court held in Bhavesh Jayanti Lakhani that a red corner notice does not by itself authorise arrest or detention in India. Action on a foreign request must be taken in accordance with Indian law, and where that law requires an order of a court, one must be obtained.
Related Topics
- Production of Documents and Search: Sections 94 to 110, BNSS
- Security for Keeping the Peace and Good Behaviour: Sections 125 to 143
- Attachment of the Proceeds of Crime: Section 107, BNSS
- Proclamation and Attachment: Sections 84 to 89, BNSS
- Application and Commencement of the BNSS, 2023
- New Features of the BNSS, 2023