NATIONAL LAW INSTITUTE UNIVERSITY
KERWA DAM ROAD
BHOPAL
TRIMESTER: IX TRIMESTER
SESSION: 2019-2020
SUBJECT: CRIMINAL LAW III
SECTION 105A-105L: Reciprocal Arrangements for Assistance in
Certain Matters and Procedure for Attachment and Forfeiture of
Property
SUBMITTED TO SUBMITTED BY
Mr P.K. Shukla Harsh Sahu
Assistant Professor of Law Roll no. - 2017 BA LLB 88
NLIU, Bhopal. Enrollment no: A-1864
1|Page
Table of Contents
Acknowledgement 3
Introduction 4
Section 105A and Section 105B 5
Section 105C 6
Section 105D and Section 105E 7
Section 105F, Section 105G and Section 105H 8
Section 105I, Section 105J and Section 105K 9
Section 105L 10
Case Laws 11
References 13
2|Page
Acknowledgement
This project report is on the topic Reciprocal Arrangements for Assistance in
Certain Matters and Procedure for Attachment and Forfeiture of Property
and has been completed under the guidance of Dr. PK Shukla, who has inspired
me to work effectively, and I would like to express my most sincere gratitude to
him for this opportunity. I would also like to thank my friends for their
wholehearted support and help in the successful completion of this project.
Harsh Sahu
2017 B.A.LL.B 88.
3|Page
Introduction
One basic requirement under the Criminal Law System in India is the aspect
relating to convictions and punishments. In certain cases it may happen that the
person who committed the offence resides or is currently beyond the judicial
territory of a Court. Under such cases the Court follows the process under Section
105A-L either to compel that person to attend the trial or execute its order or
judgment. This Section provides the Indian Courts powers to arrest, summon, serve
warrant and attach and forfeiture the property of the person who is either on the run
or resides outside the judicial territories of the Court.
However, the Court cannot carry out this process by itself alone to take an action on
a person outside the territories of the Country or to attach his property to make him
pay for a crime or if the Court thinks that such a property is a result from the
proceeds of a crime it needs the help of the Ministry of Home Affairs under the
Government of India which may sometimes need the assistance of a foreign country
to bring the culprit to justice or attach his property forthwith. Section 105 A-L lays
down the various actions which can be undertaken by the Courts in this regard and
the processes it has to follow to accomplish its purpose. It also defines the meanings
of various terms and the extent of the powers of the Courts. It also lays down the
procedure an Indian Court has to follow when it receives an application from a
court situated in the contracting State with regard to arrest of a person, seizure or
attachment of his property and management of property with due care.
4|Page
Section 105-A: Definitions of various terms in this Chapter
This Section lays down the definitions of various terms used in this Section and
unless the context otherwise requires these definitions will have the following
meaning:
(a) “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;
(b) “identifying” includes establishment of a proof that the property was derived
from, or used in the commission of an offence;
I “proceeds of crime” means 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;
(d) “property” means Property and sets 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 and includes property obtained through
proceeds of crime;
(e) “tracing” mean determining the nature, source, disposition, movement, title or
ownership of property.1
Section 105-B: Assistance in securing transfer of persons
This Section lays down the assistance and the procedure to obtain the same for
transfer of persons residing outside the territory of India either to submit a
document or for the purposes of investigation into a criminal offence. It also lays
down the duty of an Indian Court and the procedure it has to undertake when it
1
CrPC, 1973.
5|Page
receives an application from the Court of a “contracting state” 2 to arrest a person
residing within its territory. Under subsection (1) of this Section 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.
Under subsection (2) of this section if while investigating a matter an investigating
officer moves an application that a person residing outside the territory of India has
to be called for investigation he may move an application for the same. If the Court
is satisfied that the assistance of such person for the purposes of investigation is
required it may issue a copy of the summons or warrant to the respective Court,
Judge or Magistrate as the Central Government may specify.
Subsection (3) of this Section imposes a duty upon an Indian Court to assist a court
situated in a contracting country. Under this Subsection when 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. But
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. Likewise under Subsection (5)
where the person transferred to India pursuant, to sub- sec- tion (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.
Section 105-C: Assistance in relation to Orders of attachment or
forfeiture of Property
This Section lays down the powers of an Indian Court to attach or forfeit a property
of a person if it has reasonable grounds for the same. Under Section 105C(1) 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
2
As defined under Section 105A.
6|Page
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 105D to 105J (both
inclusive).
Subsection (2) of this Section helps an Indian Court to carry out its order or
judgment when such a property is situated in a contracting State. Under this
Subsection where the Court has made an order for attachment or forfeiture of any
property under subsection (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.
Subsection (3) of this Section lays down the duties imposed on an Indian Court
when it receives an application from a Court situated in a contracting state for
forfeiture or attachment of a property. Under this subsection, 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 105D to 105J (both inclusive) or, as the case may be, any
other law for the time being in force.
Section 105-D Identifying unlawfully acquired property
This section lays down the process and powers of an Indian Court to carry out the
purposes of subsection (3) of Section 105-C. Under Subsection (1) of this Section
the Court shall on receipt of a letter of request under sub- section (3) of section
105C, direct any police officer not below the rank of Sub- Inspector of Police to
take all steps necessary for tracing and identifying such property. 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. 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.
105-E: Seizure or Attachment of Property
This Section confers powers upon the investigating officer under Section 105D to
attach or seize a property if he has reasonable grounds for the same. The grounds on
7|Page
which such property can be seized or attached are mentioned under Subsection (1)
of Section 105-E. Under this subsection where any officer conducting an inquiry or
investigation under section 105D 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. Subsection (2) limits the powers of the
investigating officer in this regard and provides that any order made under sub-
section (1) shall have no effect unless the said order is confirmed by an order of the
said Court within a period of thirty days of its being made.
Section 105-F: Management of properties seized or forfeited
This section lays down the manner in which the property forfeited under Section
105-E is to be managed. Under Subsection (1) of this Section 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. The administrator of such a property shall
receive and manage the property according to such conditions as specified by the
Central Govt. in this regard.
Section 105-G: Notice of forfeiture of Property
If as a result of the inquiry, investigation or survey under section 105D, 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 (hereinafter referred to as 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 ee has
acquired such property, the evident on which he relies and other relevant
information and particulars, and to show cause why all or any of such properties, as
the cam may be, should not be declared to be proceeds of crime and forfeited to the
Central Government.
Section 105-H: Forfeiture of Property in certain cases
8|Page
The Court may, after considering the explanation, if any to the show- cause notice
issued under section 105G and the material available before it and after giving to
the person affected a reasonable opportunity of being heard by order record a
finding whether all or any of the properties in question are proceeds of crime:
Provided that if the person affected does not appear before the Court or represent
his case before it within at period or thirty days specified in the slow- cause notice,
the Court may proceed to record a finding under this sub- section ex parte on the
basis of evidence available before it. Where the Court is satisfied that some of the
properties referred to in the slow- 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 subsection (1). 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.
Section 105-I: Fine in lieu of forfeiture
Where the Court makes a declaration that any property stands forfeited to the
Central Government under section 105H 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. 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 105H and
thereupon such property shall stand released.
Section 105-J: Certain transfers to be null and void
Where after the making of an Order under Section 105E or the issue of a notice
under section 105G, 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 105H, then, the transfer of such
property shall be deemed to be null and void.
Section 105-K: Procedure in respect of letter of request
9|Page
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 a 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.
Section 105-L: Application of this Chapter
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.
10 | P a g e
Case Laws
State of Madhya Pradesh Vs. Balram Mehani and Others3
Facts of the Case: The Station House Officer, Itarsi moved applications
before the Judicial Magistrate, First Class, Itarsi for initiating
proceedings against the respondents herein under Chapter VII-A of
the Code of Criminal Procedure, 1973 for attachment and forfeiture
of the properties of the respondents. According to the applications,
the said properties were derived from or used in commission of
offences and were acquired from the criminal activities. The prayer
thus was made under Section 105-D of the Code for authorisation to
take all necessary steps to trace out and identify such properties and
further for the forfeiture and vesting thereof. The counsel appearing
on behalf of the appellant argued that Sections 105-C and 105-D can
apply to any property in India which is derived or obtained from the
commission of offence. Such offence could be even the offence
which does not have international ramifications.
Held: The Court held that this Chapter of The Code of Criminal Procedure,
1973 is not meant for local offences. Such properties accumulated by local
offences are not included in Section 105-C. Though the language of
Section 105-C(1) is extremely general, its being placed in Chapter VII-
A cannot be lost sight of. Again there is a clear-cut reference in sub-
section (2) thereof to the contracting State, the definition of which is
to be found in Section 105-A(a). It is, therefore, clear that the
property envisaged in Section 105-C(1) cannot be an ordinary
property earned out of ordinary offences committed in India. When
the sub-section of Section 105-B is read in entirety, it is clear that it
makes reference to a person who is in “contracting State”. Therefore,
even that reference will not bring in any provision within the scope
of general law. The provisions of Section 105-L make it clear that the
Central Government may by notification in the Official Gazette,
direct that the application of this Chapter in relation to a contracting
3
(2010)2SCC602: (2010)2 SCC(Cri) 1070
11 | P a g e
State with which there are reciprocal arrangements would be subject
to some conditions, exceptions and qualifications as would be
specified in the said notification. It is, therefore, clear that the whole
Chapter is a specific chapter relating to the specified offences
therein and has nothing to do with the local offences or the
properties earned out of those.
12 | P a g e
Ashok Vs. State of Madhya Pradesh4
Held: Section 105 of the Code applies only in cases where there is
reciprocal arrangement with the foreign countries for extension of
Code of Criminal Procedure to their territories. These provisions
under section 105 as well as provisions applied by the Magistrate
only apply to the territories which are foreign territories and in
which by reciprocal arrangement, provisions of the Code are
applicable.
Swiss Timing Ltd. Vs. Central Bureau of Investigation5
Held: For summons to compel appearance, provision has been made under
Section 105 Cr. P.C., which was amended with effect from 25th May, 1988.
Section 105(1)(i) Cr. P.C. applies to the territories in India to which Cr. P.C.
does not apply and Section 105(1)(ii) Cr. P.C. applies to other Countries
where arrangements have been made. Section 105(2) Cr. P.C. relates to
summons received in India. The statutory scheme as envisaged should be
strictly complied with. In terms of Section 105(1)(ii) Cr. P.C. the summons
to be served on a person to compel appearance in another country is a Court
to Court process. Admittedly, in case of a conflict between a treaty law and
the municipal law, the municipal law will prevail as held in Bhavesh Javanti
Lakhani v. State of Maharashtra6. The law is clear that strict construction
application is required in extradition or summons process law, in view of the
consequences that follow on non-appearance pursuant to service of
summons. In case, substantive rights of a person are violated, the superior
Court will entertain the petition to enforce rights of the human-beings.
Further, Section 105 requires for issuance of a notification. Though the
serving or execution of the summons at a place or Country is mandatory,
however sending of such summons or warrants to such Court, Judge or
Magistrate and to such authority for transmission as may be notified is
directory in nature. The reason for the second portion of clause (ii) of
Section 105(1) being directory in nature is that the Indian Government
cannot determine the authority or the Court, Judge or Magistrate of another
Sovereign State. The issuance of notification as provided for under Section
105 Cr. P.C. is not a mandatory procedure. The word used in Section 105(1)
4
MCR No. 1042/2006
5
2012 SCC OnLine Del 1380 : ILR (2012) 4 Del 234 : (2013) 196 DLT (CN) 77 : (2012) 2 DLT (Cri) 273
6
(2009) 9 SCC 551
13 | P a g e
(ii) is ‘may’. The non-issuance of the Notification will not render nugatory
the binding nature of the Exchange of letters between any two countries.
Uma Maheshwari Vs. The State represented by Inspector of Police,
Central Crime Branch7
Held: The said Chapter consisting of Section 105(A) to 105(L) was inserted
in the Code of Criminal Procedure on 20.7.1994 by way of Central
Act 14/1993. It is intended by way of reciprocal arrangement for assistance
in certain matters and procedures for attachment or forfeiture of the property.
With regard to certain extra-territorial activity, in other words it is intended
for collecting evidence outside India and matters connected thereto in India
elaborate procedure has been made in Section 105(A) to 105(L) Cr.P.C. In
that connection in Section 105(E)(2) Cr.P.C. confirmation within 30 days of
seizure has been prescribed. Section 105(E) Cr.P.C. has nothing to do with
the seizure provided in Section 102 Cr.P.C.
K Mahendran Vs. The State represented by the Sub Inspector of
Police8
Held: a learned Single Judge of this Court referring to section 105(E)(2) Cr.P.C.
held that the freezing of the Bank accounts will have no effect unless it is
confirmed by the Magistrate within 30 days of freezing of the Bank account.
7
Crl.O.P.No.15983 of 2013
8
2007 (1) MLJ (Crl) 794
14 | P a g e
References
Sohani’s, The Criminal Procedure Code,1973, 19thedn., Vol. 3, Law Book
Company Ltd., Allahabad (1999)
Kelkar C., Criminal Procedure, 3rdedn., Eastern Book Compnay (1998)
Sprack John, Emmins on Criminal Procedure, 7thedn., Blackstone Press Ltd.
Ratanlal and Dhirajlal, The Code of Criminal Procedure, 15thedn., Wadhwa
and Company, Nagpur (1997)
Miller, Marc and Ronald Wright, Criminal Procedure- Cases, Statutes and
Executive Materials, (Aspen Law and Business, 1998).
Miller, Marc and Ronald Wright, Criminal Procedure- Prosecution and
Adjudication, (Aspen Law and Business, 1999).
Mitra, B.B., The Code of Criminal Procedure, (Kamal Law House, 19th ed,
1998).
Rao, Shreedharo, Criminal Trial-Practice and Procedure, (S. Gogia and Co.,
4th ed., 1999)
15 | P a g e
