Reciprocal Arrangement for Transfer of Persons and Attachment and Forfeiture of Property under Indian Laws

The term “contracting state” has been defined to mean any country or place outside India in respect of which the Central Government has made arrangements with the government of such a country or place, by entering into a treaty, or otherwise.

The provisions of this Chapter are dealt with under the following two heads:

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A. Transfer of persons

B. Attachment and forfeiture of property.

A. Transfer of persons:

S. 105-B provides that if any court in India is desirous that a warrant issued by it for the arrest of a person, or for the production of a document or other thing, is to be executed in any place in a “contracting state” (as defined above), it must send such a warrant in duplicate to such Court, Judge or Magistrate as may be specified by the Central Government. Thereafter, that Court, Judge or Magistrate must cause such a warrant to be executed.

Furthermore, if during the course of an investigation or an inquiry into an offence, an application is made to the court by the investing officer that a person is in a contracting state, and that his attendance is required for such investigation or inquiry, the court can, if satisfied that such attendance is so required, issue a summons or warrant in duplicate, against such a person to such Court, Judge or Magistrate as may be specified by the Central Government. Such Court, Judge or Magistrate must then cause such a summons or warrant to be served or executed.

If the person who is transferred to India under the above provisions is a prisoner in a contracting state, the Indian court must ensure that the conditions subject to which such prisoner is transferred to India are complied with. The prisoner is to be kept in such custody as may be directed by the Central Government.

Likewise, if a Court, Judge or Magistrate in a contracting state sends a warrant in respect of a person in India, the Indian court must execute such a warrant, as if it was a warrant received by it from another court in India.

If a person who is transferred to a contracting state is a prisoner in India, the court in India or the Central Government may impose such conditions on the transfer as may be deemed fit.

B. Attachment and forfeiture of property:

Provisions are also made for reciprocal attachment and forfeiture of property of criminals in India and in the contracting states.

If a court in India has reasonable grounds to believe that any property obtained by any person is derived or obtained, directly or indirectly, by committing an offence, it may pass an order of forfeiture or attachment of such property. If such property is in a contracting state, the court may issue a letter of request to a court or authority in that contracting state, for execution of that order.

Likewise, if a letter of request is received by the Central Government from a court or other authority in a contracting state, requesting attachment or forfeiture of property in India, in cases where such property is derived or obtained, directly or indirectly, by an offence committed in that contracting state, the Central Government may forward such a letter of request for execution to the court as it thinks fit.

In such cases, the court must direct a Police Officer (not below the rank of Sub-Inspector) to take all necessary steps for tracing and identifying the property. Such steps would include any inquiry or investigation into the assets, documents, books of account in any bank, financial institution, etc.

If the investigating officer has reason to believe that such property is likely to be concealed or transferred or disposed of, he may make an order for seizure of such property. In cases where it is not practicable to seize such property, an order of attachment can also be made. All such orders, however, have to be confirmed by the court within 30 days.

In such cases, the District Magistrate of the place where the property is situate or any other officer nominated by him may be appointed as the Administrator of that property.

It is also provided that if as a result of the inquiry or investigation referred to above, the court has reason to believe that all or any of such properties are “proceeds of crime” (i.e. obtained by the person, directly or indirectly, as a result of a criminal activity), it may serve a notice on the affected person to indicate, within a period of 30 days, the source of his income, earning or assets out of which he acquired such property, and to show cause why all or any of such properties should not be declared to be proceeds of crime, and forfeited to the Central Government.

Thereafter, the court may, after considering the explanation, if any, given by the affected person, and after giving him a reasonable opportunity to be heard, and after considering the material available before it, record a finding whether all or any of such properties are proceeds of crime.

If the affected person does not appear before the court, ex parte orders can be passed by the court, on the basis of the evidence available to it.

Once the court records a finding that any property is proceeds of a crime, such property stands forfeited to the Central Government, free from all encumbrances. If such property is shares, the company is bound to register the Central Government as the transferee of such shares, notwithstanding anything contained in the Companies Act, 1956, and the Articles of Association of that company.

Where a declaration is made for the forfeiture of any property, but the source of only a part of such property has not been proved, the court must give an option to the affected person to pay a fine equal to the market value of such part, in lieu of forfeiture. When such fine is paid, the declaration of forfeiture stands revoked.