Reciprocal Arrangements with Foreign Countries for Service of Summons / Warrants

Chapter VIII of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — Sections 112 to 122 BNSS, corresponding to the older Chapter VII-A of the Code of Criminal Procedure, 1973 (CrPC), Sections 105A to 105L — collects the procedural machinery by which India and a foreign "contracting State" assist one another in criminal matters. The chapter does four distinct things. First, it allows a Court in India to send a warrant or a summons abroad for service or execution, and to receive in turn an Indian-jurisdiction warrant or summons issued by a foreign Court. Second, it permits the transfer of persons — including prisoners — between the two States for purposes of investigation, evidence-recording or trial. Third, it permits the attachment and forfeiture of property abroad, on a finding by an Indian Court that the property is the proceeds of crime committed in India. Fourth, it permits the Indian Court to give effect, on a letter of request, to attachment or forfeiture orders made by foreign Courts in respect of property situated in India.

The chapter is the criminal-procedure analogue of the mutual legal assistance treaty regime. The Government of India has, since the 1990s, entered into bilateral mutual legal assistance treaties (MLATs) with a long list of countries — the United Kingdom, the United States, the United Arab Emirates, Switzerland, Singapore and many others. The chapter operates in conjunction with these treaties and with the framework Notification of the Ministry of Home Affairs that designates the central authorities and the channel of transmission. The BNSS preserves the architecture of the 1993 amendment that introduced the chapter into the CrPC, with one important modernisation — Section 119 BNSS now contemplates electronic transmission of letters of request, summons and warrants where the contracting State and the Central Government have agreed on the mode. For the broader procedural sequence, read this chapter alongside the chapter on police investigation powers and the rest of the CrPC and BNSS notes.

The architecture of Chapter VIII BNSS

Section 112 BNSS (previously Section 105A CrPC) is the definitions provision. "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. "Identifying" includes establishment of proof that the property was derived from, or used in the commission of, an offence. "Proceeds of crime" means any property derived or obtained, directly or indirectly, by the person as a result of criminal activity (including crimes involving currency transfers) or the value of any such property. "Property" means property and assets of every description — corporeal or incorporeal, movable or immovable, tangible or intangible — and includes deeds and instruments of title and proceeds of crime. "Tracing" means determining the nature, source, disposition, movement, title or ownership of property.

The architecture rests on the contracting-State concept. The Indian Court does not deal directly with foreign Courts; it deals with the Central Government, which transmits the request to the central authority of the contracting State, which in turn deals with the foreign Court. The reverse channel is identical. This double-filter mechanism is necessary because criminal-justice cooperation across borders is, in international law, the exercise of one State's sovereignty within another's territory; the cooperation must be expressly consented to and routed through diplomatic channels.

Section 113 BNSS — assistance in securing transfer of person

Section 113 BNSS (previously Section 105B CrPC) is the transfer-of-person provision. Three distinct sub-rules apply. First, where a Court in India desires that a warrant for arrest or for production of a document or thing — issued by it — be executed in a contracting State, the Court sends the warrant to the foreign Court in such form and through such authority as the Central Government may by notification specify. The foreign Court then causes the warrant to be executed. Second, where in the course of an investigation or inquiry, the investigating officer (or any officer superior to him) applies that the attendance of a person in a contracting State is required, the Court — if satisfied that such attendance is required — issues a summons or warrant to the foreign Court for service or execution. Third, where the Court in India receives a warrant from a foreign Court requiring a person in India to attend or produce a document there, the Court in India executes the warrant as if it were a domestic warrant.

Sub-section (4) deals with the case where the person transferred to a contracting State is a prisoner in India. The Court in India or the Central Government may impose such conditions as the Court or the Government deems fit — typically, conditions on duration of stay abroad, on the security of return, and on the use of evidence given. Sub-section (5) deals with the reverse case where the person transferred to India is a prisoner in a contracting State; the Court in India ensures that the conditions of transfer are complied with and the prisoner is kept in such custody and on such conditions as the Central Government directs in writing.

Section 114 BNSS — assistance in attachment or forfeiture of property

Section 114 BNSS (previously Section 105C CrPC) is the property-side counterpart. 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 the property under the procedure laid down in Sections 115 to 121 BNSS. Where the order has been made by an Indian Court and the property is suspected to be in a contracting State, the Indian Court issues a letter of request to the foreign Court for execution. Conversely, where a letter of request is received by the Central Government from a contracting State requesting attachment or forfeiture of property in India derived from a foreign offence, the Central Government forwards the letter to the appropriate Indian Court, which deals with it under Sections 115 to 121 BNSS.

The provision is the attachment-of-proceeds-of-crime regime in its cross-border form. It is the international counterpart of the domestic Sections 107 to 111 BNSS regime taken up in the chapter on domestic attachment of proceeds of crime. The two regimes overlap with the special-statute regimes — particularly the Prevention of Money Laundering Act, 2002, the Fugitive Economic Offenders Act, 2018, and the special procedure under the chapter on search warrants and seizure for the investigative side. The two regimes operate through similar definitions and discipline. The cross-border regime, however, is necessarily slower because it depends on the foreign State's cooperation and on the channel of transmission through the Central Government.

Section 115 BNSS — identifying unlawfully acquired property

Section 115 BNSS (previously Section 105D CrPC) is the tracing provision. The Court — acting under Section 114 BNSS or on a letter of request — directs a police officer not below the rank of Sub-Inspector to take all steps necessary for tracing and identifying the property. The steps may include any inquiry, investigation or survey of any person, place, property, asset, document, books of account in any bank or public financial institution, or any other relevant matter. The inquiry is to be carried out under directions issued by the Court.

The provision empowers the police to follow the money. The provision is invoked in cases involving the proceeds of large-scale fraud, narcotic-trafficking or terrorist financing, where the property has been moved through multiple jurisdictions to evade detection. The provision draws heavily on the FATF (Financial Action Task Force) standards on tracing and identifying proceeds of crime; the practical implementation depends on the cooperation of banks, financial institutions and the registries of property and ownership.

Section 116 BNSS — seizure or attachment of property

Section 116 BNSS (previously Section 105E CrPC) is the freezing provision. Where any officer conducting an inquiry under Section 115 BNSS has reason to believe that the property is likely to be concealed, transferred or otherwise dealt with so as to defeat the proceedings, he may make an order seizing the property; where seizure is impracticable, he may make an order of attachment directing that the 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. Sub-section (2) provides that the order has no effect unless it is confirmed by the Court within thirty days of being made — the thirty-day rule is the procedural safeguard against arbitrary executive freezing.

Section 117 BNSS — management of seized or forfeited property

Section 117 BNSS (previously Section 105F CrPC) provides for the management of property seized or attached. The Court may appoint the District Magistrate of the area where the property is situated, or any officer nominated by the District Magistrate, to be the 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. Where the property is forfeited to the Central Government, the Administrator takes such measures as the Government directs to dispose of it. The provision is the practical machinery without which seizure and forfeiture would be empty rituals; the Administrator is the State's hands on the seized property.

Section 118 BNSS — notice of forfeiture

Section 118 BNSS (previously Section 105G CrPC) is the show-cause provision. If, on the inquiry, investigation or survey under Section 115 BNSS, the Court has reason to believe that all or any of the property is the proceeds of crime, it serves a notice on the affected person calling upon him within thirty days to indicate the source of income, earnings or assets out of which he acquired the property, the evidence he relies on, and other particulars, and to show cause why the property should not be declared as proceeds of crime and forfeited to the Central Government. Where the notice specifies any property as being held on behalf of the affected person by another person, a copy of the notice is also served on that other person.

The notice mechanism is the procedural fairness safeguard. The Supreme Court in Vijay Madanlal Choudhary v. Union of India, (2022) — though decided in the context of the PMLA — emphasised that the notice-and-hearing discipline is the constitutional sine qua non of any property-attachment regime. The same discipline applies to Section 118 BNSS.

Section 119 BNSS — forfeiture of property

Section 119 BNSS (previously Section 105H CrPC) is the forfeiture provision. The Court, after considering the explanation, if any, to the show-cause notice and the material before it, and after giving the affected person a reasonable opportunity of being heard, records a finding whether all or any of the property is the proceeds of crime. The proviso permits the Court to record an ex parte finding where the affected person fails to appear or to represent his case within thirty days. Where the Court is satisfied that some of the property is proceeds of crime but it is not possible to identify the property specifically, it may, to the best of its judgment, specify the property which is proceeds of crime. Where the Court records a finding that any property is proceeds of crime, the property stands forfeited to the Central Government free from all encumbrances. Where shares in a company are forfeited, the company shall — notwithstanding anything in the Companies Act, 2013, or its articles of association — register the Central Government as the transferee.

Section 120 BNSS — fine in lieu of forfeiture

Section 120 BNSS (previously Section 105I CrPC) is the partial-forfeiture provision. Where the Court declares any property forfeited under Section 119 BNSS but the source of only a part of the property has not been proved to the Court's satisfaction, it shall give the affected person an option to pay, in lieu of forfeiture, a fine equal to the market value of that part. The fine option is to be exercised within such time as the Court allows. On payment, the Court revokes the declaration of forfeiture and the property stands released. The provision is the proportionality valve in the cross-border attachment regime; it allows partial restitution where part of the property is shown to have a legitimate source.

Section 121 BNSS — transfers null and void

Section 121 BNSS (previously Section 105J CrPC) is the anti-evasion provision. Where, after the making of an order under Section 116 BNSS or the issue of a notice under Section 118 BNSS, any property referred to in the order or notice is transferred by any mode whatsoever, the transfer shall, for the purposes of the proceedings, be ignored; if the property is subsequently forfeited to the Central Government under Section 119 BNSS, the transfer shall be deemed to be null and void. The provision protects the integrity of the attachment by neutralising any post-notice attempt to alienate the property.

Section 122 BNSS — procedure of letter of request and applicability

Section 122 BNSS (corresponding to Sections 105K and 105L CrPC) collects two procedural rules. Every letter of request, summons or warrant received by the Central Government from a contracting State, and every letter of request, summons or warrant transmitted by the Central Government to a contracting State, shall be in such form and transmitted in such manner as the Central Government may by notification specify. The Central Government may, by notification in the Official Gazette, direct that the application of the chapter in relation to a particular contracting State shall be subject to such conditions, exceptions or qualifications as the notification specifies. The provision is the operational cog that connects the substantive rules of Sections 113 to 121 BNSS to the bilateral treaty framework on which the regime depends.

The Madhya Pradesh judgment — the chapter is for international, not local, offences

The Supreme Court in State of Madhya Pradesh v. Balram Mihani, (2010) 2 SCC 602, settled an important point of scope. Chapter VII-A of the 1973 Code (now Chapter VIII of the BNSS) applies only to offences with international ramifications — that is, offences that attract the bilateral treaty framework on which the chapter rests. The chapter cannot be used by the trial Court to attach property that is suspected to be the proceeds of a purely local offence such as gambling under a State law. For purely local offences, the appropriate route is the domestic proceeds-of-crime regime under Sections 107 to 111 BNSS, or the special-statute regimes of the PMLA, the NDPS Act or the Benami Act, as the case may be. The Supreme Court's reading of the chapter as a specialised cross-border regime — supplementary to Sections 197 and 198 BNSS (previously Sections 166A and 166B CrPC) on letters of request for evidence — applies with equal force to the BNSS provisions.

Sections 197 and 198 BNSS — the supplementary provisions

Two related provisions outside Chapter VIII deserve mention. Section 197 BNSS (previously Section 166A CrPC) deals with the issue of a letter of request from an Indian Court to a foreign Court for examination of a witness or for production of a document; the procedure is invoked when the document or witness is in the foreign State and the Indian Court needs the evidence for an Indian trial. The provision is invoked at the investigation stage; once the trial is on foot, the chapters on trial before a Court of Session and trial of warrant cases by magistrates govern the use of foreign-obtained evidence. Section 198 BNSS (previously Section 166B CrPC) deals with the converse — a letter of request issued by a foreign Court is received by the Central Government and forwarded to an Indian Court for execution. The two provisions complement Chapter VIII by addressing the evidence-gathering side of cross-border cooperation; Chapter VIII addresses the more drastic — transfer of persons and attachment of property.

Constitutional and treaty overlay

Chapter VIII operates against the backdrop of three constitutional and treaty constraints. First, the contracting-State concept is dependent on a bilateral arrangement; without an MLAT or equivalent, the chapter does not apply. Second, the chapter is constrained by the principle of dual criminality — most MLATs require that the offence be punishable in both jurisdictions, though the threshold varies treaty-by-treaty. Third, the property-attachment provisions are read against Article 300A of the Constitution — the right to property as a constitutional right — and the Article 21 due-process guarantee. The Supreme Court has held that the chapter, while drastic, is constitutional because it preserves the affected person's right to notice and hearing under Section 118 BNSS, and confines the Court's power to property shown by reasoned satisfaction to be the proceeds of crime.

For the related provisions on attachment of proceeds of crime within India, read the chapter on attachment and forfeiture of proceeds of crime. For the broader procedural sequence on letters of request and evidence-gathering, the chapters on letters of request under Sections 197 and 198 BNSS and disposal of property seized take the doctrine forward. The interaction with the inherent-jurisdiction provisions of Section 528 BNSS is also relevant, as the High Court may be asked to quash a Section 116 BNSS attachment order on grounds of abuse of process; that subject is taken up in the chapter on inherent powers of the High Court. For the general framework against which Chapter VIII operates, read the introduction and scheme of the Sanhita, which sets up the architecture this chapter elaborates.

Why this chapter matters in practice

For most working magistrates, Chapter VIII BNSS is rarely encountered. The chapter is operated by the Central Bureau of Investigation, the Enforcement Directorate, and the special MLAT cells of the State CIDs and of the Ministry of Home Affairs. But the chapter is the doctrinal foundation on which India's high-profile cross-border investigations — fugitive-economic-offender extraditions, recovery of stolen government funds, attachment of foreign-held assets of organised criminals — depend. The candidate who understands the chapter understands the cross-border dimension of the modern criminal-justice system; the candidate who skips it has a gap that the modern fact-pattern question is increasingly likely to expose. The chapter rewards careful study of three pivot points: the contracting-State concept, the Section 119 BNSS forfeiture procedure, and the dual-criminality principle that controls when the chapter operates.

Frequently asked questions

What is a 'contracting State' under Section 112 BNSS?

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. The arrangement is typically a bilateral mutual legal assistance treaty (MLAT). Without such a contracting-State designation, Chapter VIII of the BNSS does not apply, and a Court in India cannot use the chapter to send a warrant abroad or to attach foreign property. The Central Government's notification under Section 122 BNSS specifies which countries are contracting States and on what conditions.

Can Chapter VIII BNSS be used to attach property derived from a purely local offence?

No. The Supreme Court in State of Madhya Pradesh v. Balram Mihani, (2010) 2 SCC 602, held that the chapter applies only to offences with international ramifications — those attracting the bilateral treaty framework. The chapter cannot be used by a trial Court to attach property suspected to be the proceeds of a purely local offence such as gambling under a State law. For purely local offences, the appropriate route is the domestic proceeds-of-crime regime under Sections 107 to 111 BNSS, or the dedicated special-statute regimes such as the PMLA, the NDPS Act, or the Benami Act.

How does the transfer of a prisoner between India and a contracting State work under Section 113 BNSS?

Section 113 BNSS provides the machinery. Where the Indian Court desires that an Indian-issued warrant be executed in a contracting State, it sends the warrant in duplicate to the foreign Court through the channel and in the form notified by the Central Government. Where the Indian Court receives a foreign warrant, it executes it as if it were domestic. Where the person transferred to a contracting State is a prisoner in India, the Indian Court or the Central Government imposes such conditions on the transfer as it deems fit; where the person transferred to India is a prisoner in a contracting State, the Indian Court ensures compliance with the conditions of transfer and the prisoner is kept in such custody as the Central Government directs.

What is the thirty-day confirmation rule under Section 116(2) BNSS?

Section 116 BNSS empowers the officer conducting an inquiry under Section 115 BNSS to make an order seizing or attaching property believed to be likely to be concealed, transferred or dealt with so as to defeat the proceedings. Sub-section (2) provides that the order has no effect unless it is confirmed by the Court within thirty days of being made. The thirty-day rule is the procedural safeguard that prevents arbitrary executive freezing — the executive officer's order is provisional, and confirmation is the judicial check.

What happens if the person affected does not respond to a Section 118 BNSS show-cause notice?

The proviso to Section 119(1) BNSS permits the Court to record an ex parte finding on the basis of the evidence available before it, where the affected person fails to appear or represent his case within the thirty-day period specified in the show-cause notice. The ex parte finding may be challenged on the ground that the affected person had no notice or could not respond for reasons beyond his control, but the burden of so establishing lies on the affected person. The Supreme Court's discipline in Vijay Madanlal Choudhary on the right to notice and hearing applies here.

Can the Indian Court give effect to a foreign Court's attachment order under Chapter VIII BNSS?

Yes. Section 114(3) BNSS provides that where a letter of request is received by the Central Government from a contracting State requesting attachment or forfeiture of property in India derived from an offence committed in that State, the Central Government forwards the letter to the appropriate Indian Court for execution under Sections 115 to 121 BNSS. The Indian Court then conducts the inquiry, issues the show-cause notice, gives the affected person a hearing, and records its finding. The process applies the same discipline as a domestically initiated attachment, with the additional safeguards of the contracting-State framework and the dual-criminality principle.