MHA Circular -- Service of Process Abroad

No. 25016/17/2007-Legal Cell

Government of India

Ministry of Home Affairs,

IS Division-II:Legal Cell

New Delhi, dated the 11

Feb, 2009

The Home Secretaries of all States/UTs,

The DGPs amd IGPs of all States/UTs.

Sub : Comprehensive guidelines regarding service of summons/notices/

Judicial process on the persons residing abroad.

Sir,

Section 105 of Criminal Proceedure Code (Cr.P.C.) provides for

reciprocal armaments to be made by Central Government with the foreign

governments with regard to the service of summons / warrants/ judicial

processes. MHA has entered into Mutual Legal Assistance Treaty/

Arrangements with 25 countries. In respect of other countries, the Ministry

attempts to serve the judicial papers by giving an assurance of reciprocity.

However, despite this Ministry’s best efforts the summons and other judicial

process get delayed for various reasons.

With a view to streamlining the procedure, MHA has examined the

matter and comprehensive guidelines are enclosed covering various aspects of

service of the summons/ Notices/ Judicial process on persons residing abroad.

You are requested to kindly have these comprehensive guidelines

circulated amongst all courts/ all investigating officers under your jurisdiction for

strict compliance.

Yours faithfully,

Sd/-

(Amar Chand)

Under Secy. To the Govt. of India

Encl : As above.

Copy to :

i) M/o Law and Justice , Deptt. Of Legal Affairs, Shastri Bhawan, New

Delhi

ii) M/o External Affairs, CPV Division, Patiala House Annexe, Tilak Marg,

New Delhi.

iii) JS(PP), MHA, Lok Nayak Bhawan, Khan Market, New Delhi

iv) JD(Policy), CBI, North Block, New Delhi

v) Joint Director, IB, New Delhi.

No. 25016/17/2007-Legal Cell

Government of India

Ministry of Home Affairs

Subject: Comprehensive guidelines referred to in Letter No. 25016/17/2007-

Legal Cell, dated ______ of Internal security Division, Ministry of

Home Affairs regarding service of summons/notices/judicial

process on persons residing abroad.

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, 9

Floor,

Lok Nayak Bhawan, New Delhi- 110003. All requests shall be

forwarded through post only with a covering letter from the

Registrar/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) India has a MLAT with Singapore and the Govt. of Singapore has

prescribed a proforma which shall be completely filled and sent

alongwith the request for service of judicial documents. The said

proforma is at Annexure – 1 to these guidelines.

d) 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.

e) 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.

f) 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.

g) 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.

h) 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.

(A) SUMMONS ISSUED BY THE FOREIGN COURTS/AUTHORITIES:-

4. The summons issued by the Foreign Courts/Authorities and received in

MHA will be served by the State Police through CBI-Interpol. However,

Indian Mission/MEA while forwarded such requests to MHA will ensure

that:-

a) The summon is followed with a translated copy in the Indian language.

b) A reasonable time say 10 weeks is allowed after the summons are

received in the Ministry of Home Affairs.

c) An Assurance of Reciprocity(AOR) is followed from the countries

which insist for the same in respect of Indian Summons.

Annexure-1

[Form for requests from prescribed foreign countries to Singapore for Assistance]

TO: The Central Authority in the Republic of Singapore

FROM: The Central Authority in India -Ministry of Home Affairs

REQUESTS FOR MUTUAL LEGAL ASSISTANCE

IN A CRIMINAL MATTER

Certificate on behalf of

The Central Authority in India- Ministry of Home Affairs

I, [name, appointment /position of person certifying] on behalf of the

Central Authority in India, Ministry of Home Affairs, who is responsible for [state

area of responsibility e.g. criminal prosecutions, investigations] in the

[requesting party] and who is also authorized to make requests for mutual legal

assistance in criminal matters ( in the Ministry of Home Affairs – India) certify

that the Ministry of Home Affairs- India respectfully requests the assistance of

the Government of the Republic of Singapore in a [Criminal matters].

REQUEST

This request is made pursuant to the Agreement between the Govt. of

Republic of Singapore and the Govt. of India agreed on 29

June 2005

(hereinafter “ The Agreement”) concerning Mutual Legal Assistance in Criminal

matters.

NATURE OF REQUEST

This request relates to the [describe subject of criminal matter e.g. service

of summons/Notices/judicial processes issued by the Hon’ble Court _________

In Case number____ u/s ____). The authority having the conduct of the

criminal matter is [describe authority concerned with the criminal matter]

CRIMINAL OFFENCES / APPLICABLE LEGISLATION/PENALTIES

[Set out the offences alleged to have been contravened in relation to the criminal

matter as well as maximum penalties for these offences and attached copies of

applicable legislative provisions. State identity of suspect/ accused person if

known) e.g.

Offence u/s _________ of the Indian Penal Code/ Cr.PC (define the section)

Section _______ “______________”

“Quote”

1State whether it is an investigation, prosecution or an ancilliary criminal matter.

Criminal matter is defined in section 2 of Singapore Mutual Assistance in

Criminal Matters Act (Cap 1904). An electronic version of this is available at

http://statutes.age.gov.sg/

STATEMENT OF FACTS

[DEScribe the material facts of the criminal matter including in particular, those

necessary to establish circumstances connected to evidence sought in the

Requesting Party and the relevance of Singapore evidence to the criminal matter

in the Requesting Party. Such other information as is required where the

requests relates to particular heads of assistance (e.g. location of persons,

enforcement of confiscation order) should also be stated) e.g.

PURPOSE OF REQUEST

By this request it is intended to [state purpose which is intended to be achieved

by the assistance sought to secure admissible evidence to be used in the trial of

____] e.g. serve a summon issued by the Hon’ble Court ______ in case no.

_______ u/s ________ of the Indian Penal Code/ Cr.PC and to secure the

presence of the accused before the said court on ________(date and time)

MANDATORY ASSURANCE & UNDER TAKINGS

It is confirmed that this request:

(a) does to the prosecution or punishments of a person for a criminal

offence that is , or is by reason of the circumstances in which it

alleged to have been committed or was committed, an offence of a

political character.

(b) is not made for the purpose of the prosecuting punishment or

otherwise causing prejudice to the person on account of that

persons race, religion, nationality or political opinions.

case where the person has been convicted, acquitted or pardoned

by a competent court or by other authority [Requesting party] i.e.

of the Governement of India in respect of that offence or of another

offence consitituted by the same act or omission as that offence.

The Central Authority in [Requesting Party] i.e. India – Ministry of Home Affairs

further undertakes that:

(a) that any of the evidence / thing obtained pursuant to this request will

only be used for the purpose of the request in connection with [State

particulars of criminal matters]; and e.g. Case No. ______ u/s

_______ of the Indian Penal Code /CrPC; and

(b) that should the Hon’ble Attorney General of the Republic of Singapore

required the return of any evidence / thing obtained pursuant to this

request, at the conclusion of [state particulars of criminal matters] for

e.g. case no. ________ and of all consequential appeals, the

evidence/ thing will be returned to the Honorable Attorney General of

the Republic of Singapore.

ASSISTANCE REQUESTED

The Government of Republic of Singapore is requested to take such steps as are

necessary to give effect to the following:

[describe particular type of assistance required] e.g.

To serve the summons issued by the Hon’ble Court of _______ in Case No.

________ u/s _____________ of the Indian Penal Code/ Cr.PC on the

accused Mr. _________ r/o _________.

EXECUTION OF REQUEST

Confidentiality

[State confidentiality requirements of the Requesting Party, if any] e.g.

There is no requirement of confidentiality in this matter.

Procedure to be followed

It is requested that the following procedures be observed in the execution of the

request

• [State details of manner and form

in which evidence is to be taken and

transmitted to the requesting party, if relevant]

• [State any special requirements as to certification/ authentication of

documents]

• [State if attendance by representative of the requesting party at

examination of witnesses/ execution of request is required and, if so, the

title of the post held by the proposed representative.

e.g.

The summon along with the copy of the complaint filed in the court may

be served upon __________ and his signature on the duplicate copy of the

summon may be taken as token of acknowledgment and forwarded to the

Ministry of Home Affairs, Government of India, through diplomatic channel.

Period of Execution

It is requested that the request be executed within [ State period giving

reasons i.e. specify likely trial or hearing dates or any other dates/ reasons

relevant to execution of requests] E.g. at least 10 days before i.e. (date)

_______, which is the next date of hearing in the Court of ___________

Signed by : ____________

Name /Designation :

Office :

Date :

_______

please provide proforma or form of words as appropriate

Annex B

SAMPLE NOTICE TO PERSON SERVED UNDER ARTICLE 14

[State name and address of person to be served] e.g.

Mr. R Ravindran

93, Loyang View

Singapore 507188

The Central Authority in India – Ministry of Home Affairs [Requesting State] has

made a request pursuant to the Agrement between the Government of Republic

of Singapore (Requested State) and the Government of India (Requesting State)

concerning Mutual Legal Assistance in Criminal Matters for the service of the

attached process:

[describe process and documents, if any to be served] e.g.

Viz: to serve summons issued by the Ld. Additional Chief Metropolitan

Magistrate, 47

Court, Esplanade, Mumbai in CC No.4700982/SS/2007 u/s 500

of the Indian Penal Code.

Please note that by serving the process on behalf of the Central Authority in India

– Ministry of Home Affairs [Requesting State], the Government of Republic of

Singapore [Requested State] takes no position with respect to the merits of any

proceedings in the Additional Chief Metropolitan Magistrate, 47

Court,

Esplanade, Mumbai in CC No. 4700982/SS/2007 u/s 500 of the Indian Penal

Code in the [Requesting State].

Please review the attached process carefully for instruction and deadlines. If you

have any questions about them you may wish to consult a lawyer. You may also

contact [[the representative of the Requesting State] directly at [ Phone number

or other contact details] e.g. Mr. Jayant L Phoujdar, Advocate, Mumbai High

Court directly at 022-66377902, 79037904.

However, if the process is a process other than a summons to appear as a witness

under the law of the India [Requesting State], please note that [ to be advised by

the Requesting State of other possible consequences, if any under its law if the

person refuses or fails t accepts service or fails to comply with the terms of service

of process]. E.g. warrant of arrest will be issued by the Additional Chief

Metropolitan Magistrate, 47

Court, Esplanade , Mumbai, if the person refuses or

fails to accept service or fails to comply with the terms of service of process.

(________________)

Central Authority of India – Ministry of Home Affairs.

Date: