Tuesday, May 2, 2017

In Cyber Crime Matters How to SERVE SUMMONS TO PARTY RESIDING ABROAD


Cybercrime :
HOW TO SERVE SUMMONS, PROCESS, WARRANT TO PARTY RESIDING ABROAD-

Comprehensive guidelines referred to in Letter No. 55019/17/2017-Legal Cell, dated ______ of Internal security Division, Ministry of Home Affairs regarding service of summons/notices/judicial process on persons residing abroad. --

1. Section 105 of Criminal Procedure Code (CrPC) speaks of reciprocal arrangements to be made by Central Government with the Foreign Governments with regard to the service of summons / warrants / judicial processes. The Ministry of Home Affairs has entered into Mutual Legal Assistance treaty/Agreements with 22 countries which provide for serving of documents. These countries are Switzerland, Turkey, United Kingdom, Canada, Kazakhastan, United Arab Emirates, Russia, Uzbekistan, Tajikistan, Ukraine, Mongolia, Thailand, France, Bahrain, South Korea, United States of America, Singapore, South Africa, Mauritius, Belarus, Spain and Kuwait. In other cases the ministry makes a request on the basis of assurance of reciprocity to the concerned foreign government through the mission / Embassy. The difference between the two categories of the countries is that the country having MLAT has obligation to consider serving the documents whereas the non-MLAT countries does not have any obligation to consider such a request.Summons/notices/judicial processes issued by the Indian Courts.

2. The summons/warrants/judicial processes received by MHA are forwarded to the concerned Indian Missions/Embassies which in turn, takes up the matter with the designated authority in that country. In case of MLAT countries, the manner of communication is as laid down in MLAT and can be either directly between MHA and the Central Authority or can be through the diplomatic channel. The designated authority after considering the request directs its agency to serve the document on the concerned person and the report of the service, if any is also received through the same chain. This is broadly the system in majority of the countries. However, in some countries private companies/NGOs have also been entrusted with the service of judicial papers.

3. Based on the experience gained, some guidelines are given below which may be followed while making a request to MHA for service of judicial processes. It may, however, be noted that it is the discretion of the requested country to serve the documents and any time frame for a positive response cannot be predicted.

a) All requests for service of summons / notices / judicial processes on persons residing abroad shall be addressed to the Under Secretary(Legal), IS-II Division, Ministry of Home Affairs, 9th Floor, Lok Nayak Bhawan, New Delhi- 110003. 
All requests shall be forwarded through post only with a covering letter from the  Court official giving the following information: 
a) Material facts of the criminal matter including purpose of the request and the nature of the assistance sought. 
b) The offences alleged to have been committed, a copy of the applicable laws and maximum penalties for these offence. 
c) Name, designation, telephone and fax number of the person/officer who will be able to give any clarification, if required. 
d) The complete address of the issuing authority to which the judicial papers/service reports may be returned. 
e) Approval of the competent authority to bear any expenditure, which they be charged by the foreign government/agency for the service of the documents. 
f) Degree of confidentiality required and the reasons therefore(in case of confidentiality requirement). g) Any time limit within which the request should be executed. 
This will be subject to allowance of sufficient margin of time by the requesting agency, as indicated in para 3(iv) of the guidelines b) MHA, on receipt of request, will examine it in view of the provisions of treaty, if exists, with the requested country and as per the provision of CrPC in case of non-treaty country. 
c) MHA requires at least a period of 12 weeks times for service of such notices in the concerned countries. It is, therefore imperative that a date of hearing/appearance may be decided accordingly. 
d) In the case of non English speaking countries, the notices should be accompanied with the certified/authenticated translation(in duplicate) in the official language of the country where the notice is proposed to be served. 
e) Name and address of the individual/organization should be complete in all respect and PO BOX no. and Passport no. will not suffice as address of the individual. 
f) Ministry of Home Affairs responsibility to service the summons is only in Criminal Matters. Hence, summons in Criminal matters only may be sent to the Ministry for service abroad. 
g) MHA does not undertake service of the non-bailable warrants of arrest. The service of non-bailable arrest warrents amounts to the extradition of the individual. 
The request for extradition are based on certain legal procedures contained in applicable treaties negotiated on the basis of the International Principle of Extradition. 
Such requests are to be forwarded to the Ministry of External Affairs, CPV Division, Patiala House Annexe, Tilak Marg, New Delhi – 110001."

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