Reciprocal arrangements for assistance in certain matters and procedure for attachment and forfeiture of property (Section 105 of CrPc)

Legal provisions regarding reciprocal arrangements for assistance in certain matters and procedure for attachment and forfeiture of property under section 105 of the Code of Criminal Procedure, 1973.

Reciprocal arrangements for assistance in certain matters such as transfer of person and procedure for attachment and forfeiture of property with other contracting States have been inserted as Sections 105-A to 105-L by the Code of Criminal Procedure (Amendment) Act, 1993 as the Government of India has signed an agreement with the Government of United Kingdom of Great Britain and Northern Ireland for extending assistance in the investigation and prosecution of crime and the tracing, restraint and confiscation of the proceeds of crime (including crimes involving currency transfers) and terrorist funds, with a view to check the terrorist activities in India and the United Kingdom for giving full effect to this agreement.

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Contracting State:

Section 105-A(a) of the Code states the ‘contracting State’ means 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.

Assistance in securing transfer of persons:

Section 105-B of the Code of Criminal Procedure provides that:

(1) Where a Court in India, in relation to a criminal matter, desires that a warrant for arrest of any person to attend or produce a document or other thing issued by it shall be executed in any place in a contracting State, it shall send such warrant in duplicate in such form to such Court, Judge or Magistrate through such authority, as the Central Government may, by notification, specify in this behalf and that Court, Judge or Magistrate, as the case may be, shall cause the same to be executed.

(2) Notwithstanding anything contained in this Code, if, in the course of an investigation or any inquiry into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that the attendance of a person who is in any place in a contracting State is required in connection with such investigation or inquiry and the Court is satisfied that such attendance is so required, it shall issue a summons or warrant, in duplicate, against the said person to such Court, Judge or Magistrate, in such form as the Central Government may, by notification, specify in this behalf, to cause the same to be served or executed.

(3) Where a Court in India, in relation to a criminal matter, has received a warrant for arrest of any person requiring him to attend or attend and produce a document or other thing in that Court or before any other investigating agency, issued by a Court, Judge or Magistrate in a contracting State, the same shall be executed as if it is the warrant received by it from another Court in India for execution within its local limits.

(4) Where a person transferred to a contracting State pursuant to sub-section (3) is a prisoner in India, the Court in India or the Central Government may impose such conditions as that Court or Government deems fit.

(5) Where the person transferred to India pursuant to sub-section (1) or sub-section (2) is a prisoner in a contracting State, the Court in India shall ensure that the conditions subject to which the prisoner is transferred to India are complied with and such prisoner shall be kept in such custody subject to such conditions as the Central Government may direct in writing.

Assistance in relation to orders of attachment or forfeiture of property:

According to Section 105-A(d) of the Code, ‘property’ means property and assets of every description whether corporeal or incorporeal, movable and 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 and includes property obtained through proceeds of crime.

Section 105-C of the Code of Criminal Procedure provides that:

(1) Where a Court in India has reasonable grounds to believe that any property obtained by any person is derived or obtained, directly or indirectly, by such person from the commission of an offence, it may make an order of attachment or forfeiture of such property, as it may deem fit under the provisions of Sections 105-D to 105-J (both inclusive).

(2) Where the Court has made an order for attachment or forfeiture of any property under sub-section (1), and such property is suspected to be in a contracting State, the Court may issue a letter of request to a Court or an authority in the contracting State for execution of such order.

(3) Where a letter of request is received by the Central Government from a Court or an authority in a contracting State requesting attachment or forfeiture of the property in India derived or obtained, directly or indirectly, by any person from the commission of an offence committed in that contracting State, the Central Government may forward such letter of request to the Court, as it thinks fit, for execution in accordance with the provisions of Sections 105-D to 105-J (both inclusive) or, as the case may be, any other law for the time being in force.

Identifying unlawfully acquired property:

Section 105-D of the Code of Criminal Procedure provides that:

(1) The Court shall, under sub-section (1), or on receipt of a letter of request under sub-section (3) of Section 105-C, direct any police officer not below the rank of sub-inspector of police to take all steps necessary for tracing and identifying such property.

Here ‘tracing’ means determining the nature, source, disposition, movement, title or ownership of property [Section 105-A (e) of the Code]. And, the word ‘identifying’ includes establishment of a proof that the property was derived from, or used in the commission of an offence. [Sec. 105-A (b)].

(2) The steps referred to in sub-section (1) may include any inquiry, investigation or survey in respect of any person, place, property, assets, documents, books of account in any bank or public financial institutions or any other relevant matters.

(3) Any inquiry, investigation or survey referred to in sub-section (2) shall be carried out by an officer mentioned in sub-section (1) in accordance with such directions issued by the said Court in this behalf.

Seizure or attachment of property:

As per Section 105-E of the Code of Criminal Procedure:

(1) Where any officer conducting an inquiry or investigation under Section 105-D has a reason to believe that any property in relation to which such inquiry or investigation is being conducted is likely to be concealed, transferred or dealt with in any manner which will result in disposal of such property, he may make an order for seizing such property and where it is not practicable to seize such property, 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 such order, and a copy of such order shall be served on the person concerned.

(2) Any order made under sub-section (1) shall have no effect unless they said order is confirmed by an order of the said Court, within a period of thirty days of its being made.

Management of properties seized or forfeited under this Chapter:

According to Section 105-F of the Code of Criminal Procedure:

(1) The Court may appoint the District Magistrate of the area where the property is situated, or any other officer that may be nominated by the District Magistrate, to perform the functions of an Administrator of such property;

(2) The Administrator appointed under sub-section (1) shall receive and manage the property in relation to which the order has been made under sub-section (1) of Section 105-E or under Section 105-H in such manner and subject to such conditions as may be specified by the Central Government.

(3) The Administrator shall also take such measures, as the Central Government may direct, to dispose of the property which is forfeited to the Central Government.

Notice of forfeiture of property:

Section 105-G of the Code of Criminal Procedure provides that:—

(1) If as a result of the inquiry, investigation or survey under Section 105-D, the Court has reason to believe that all or any of such properties are proceeds of crime, it may serve a notice upon such person (i.e., the person affected) calling upon him within a period of thirty days specified in the notice to indicate the source of income, earnings, or assets, out of which or by means of which he has acquired such property, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties, as the case may be, should not be declared to be proceeds of crime and forfeited to the Central Government.

Here, the words ‘proceeds of crime’ mean any property derived or obtained directly or indirectly, by any person as a result of criminal activity (including crime involving transfers) or the value of such property [Sec. 105-A(c) of the Code].

(2) Where a notice under sub-section (1) to any person specified any property as being held on behalf of such person by any other person, a copy of the notice shall also be served upon such other person.

Forfeiture of property in certain cases:

According to Section 105-H of the Code of Criminal Procedure:

(1) The Court may, after considering the explanation, if any, to the show cause notice issued under Section 105-G and the material available before it and after giving to the person affected (and in a case where the person affected holds any property specified in the notice through any other person, to such other person also) a reasonable opportunity of being heard, by order, record a finding whether all or any of the properties in question are proceeds of crime.

However, if the person affected (and in a case where the person affected holds any property specified in the notice through any other person, such other person also) does not appear before the Court or represent his case before it within a period of thirty days specified in the show cause notice, the Court may proceed to record a finding under this sub-section ex parte on the basis of evidence available before it.

(2) Where the Court is satisfied that some of the properties referred to in the show cause notice are proceeds of crime but it is not possible to identify specifically such properties, then, it shall be lawful for the Court to specify the properties which, to the best of its judgment, are proceeds of crime and record a finding accordingly under sub-section (1).

(3) Where the Court records a finding under this Section to the effect that any property is proceeds of crime, such property shall stand forfeited to the Central Government free from all encumbrances.

(4) Where any shares, in a company stand forfeited to the Central Government under this Section, then, the company shall, notwithstanding anything contained in the Companies Act, 1956 or the Articles of Association of the company, forthwith register the Central Government as the transferee of such shares.

Fine in lieu of forfeiture:

Section 105-1 of the Code of Criminal Procedure provides that:

(1) Where the Court makes a declaration that any property stands forfeited to the Central Government under Section 105-H and it is a case where the source of only a part of such property has not been proved to the satisfaction of the Court, it shall make an order giving an option to the person affected to pay, in lieu of forfeiture, a fine equal to the market value of such part.

(2) Before making an order imposing a fine under sub-section (1), the person affected shall be given a reasonable opportunity of being heard.

(3) Where the person affected pays the fine due under sub-section (1), within such time as may be allowed in that behalf, the Court may, by order, revoke the declaration of forfeiture under Section 105-H and thereupon such property shall stand released.

Certain transfers to be null and void:

Section 105-J of the Code of Criminal Procedure provides that where after the making of an order under sub-section (1) of Section 105-E or the issue of a notice under Section 105-G, any property referred to in the said order or notice is transferred by any mode whatsoever such transfers 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 105-H, then, the transfer of such property shall be deemed to be null and void.

Procedure in respect of letter of request:

As per Section 105-K of the Code of Criminal Procedure, every letter of request, summons or warrant, received by the Central Government from, and every letter of request, summons or warrant to be transmitted to a contracting State under this Chapter shall be transmitted to the contracting State or, as the case may be, sent to the concerned Court in India in such form and in such manner as the Central Government may, by notification, specify in this behalf.

Application of this Chapter:

According to Section 105-L of the Code of Criminal Procedure, the Central Government may, by notification in the Official Gazette, direct that the application of this Chapter in relation to a contracting State with which reciprocal arrangements have been made, shall be subject to such conditions, exceptions or qualifications as are specified in the said notification.