Securing Justice Across Borders

The Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as “the BNSS”) is a major reform in the country’s criminal justice system. Recognizing the need for modernization, the BNSS has been enacted to make the legal process more efficient and just. It represents a significant step towards updating India’s legal framework, aligning it with modern principles and international best practices. The BNSS encapsulates a comprehensive framework for the prevention, detection, and prosecution of crimes.

There are various provisions, dealing with reciprocal arrangements for international cooperation and the procedures for the attachment and forfeiture of property, which stand out as crucial tools in the global fight against crime. These provisions underscore India’s commitment to upholding justice across borders, ensuring that criminals cannot escape legal consequences simply by moving assets or themselves to another jurisdiction.

With the world becoming increasingly interconnected, crimes such as money laundering, terrorism financing, and organized criminal activities often transcend national borders. In response, the BNSS introduces detailed procedures for collaboration with foreign states, known as contracting States, allowing for mutual legal assistance in criminal matters.

This cooperation includes the exchange of evidence, enforcement of warrants, and the seizure and forfeiture of properties acquired through criminal activities. These measures ensure that crime, irrespective of where it is committed, can be effectively countered through coordinated international efforts.

The BNSS also outlines the specific steps to be followed when property, either within India or in a foreign jurisdiction, is believed to have been acquired through illegal means. By laying down clear procedures for tracing, seizing, and managing such property, the legislation aims to strip criminals of the financial benefits of their activities. This comprehensive approach not only strengthens India’s legal infrastructure but also enhances its ability to fulfill international obligations under various treaties and agreements.

What is meant by a contracting State as per the BNSS?

A contracting State refers to any country or place outside India with which the Indian Central Government has established arrangements through a treaty or otherwise.

How is the term “identifying” defined in the context of property related to a crime?

Identifying means establishing proof that a particular property was either derived from or used in the commission of a crime.

What are proceeds of crime?

Proceeds of crime” refers to any property directly or indirectly obtained by a person as a result of criminal activity, including crimes involving currency transfers. It also includes the value of any such property.

How is property defined under BNSS?

Property includes all kinds of assets, whether they are tangible or intangible, movable or immovable, corporeal or incorporeal. This definition also covers deeds, instruments, and assets derived from or used in the commission of an offence, including property obtained through criminal activities.

What does the term “tracing” mean in relation to property?

Tracing involves determining the nature, source, ownership, or movement of property. This includes identifying the title or ownership of the property.

What is a letter of request for an investigation in a country outside India?

A letter of request is a formal request issued by a Criminal Court in India to a competent court or authority in another country. This request asks the foreign authority to examine any person or collect documents relevant to a case under investigation in India. The evidence collected is then sent back to the Indian court.

How is a letter of request from a foreign country handled in India?

When a foreign court sends a letter of request to India, the Central Government can forward it to a Chief Judicial Magistrate or a police officer for investigation. The evidence collected is then sent back to the requesting foreign court.

What assistance is provided for securing the transfer of persons between India and a contracting State?

If a person is required in India for a criminal matter and is located in a contracting State, a court in India can send a warrant for their arrest to the appropriate authority in the contracting State. Similarly, if a warrant is received from a contracting State, it will be executed as if it were issued within India.

What happens when property suspected to be obtained through crime is located in a contracting State?

If an Indian court believes that property in a contracting State was obtained through crime, it can issue a letter of request to the foreign authority for the attachment or forfeiture of that property.

How does the law ensure the identification of unlawfully acquired property?

The court can direct a police officer to trace and identify any property that may have been unlawfully acquired. This can include inquiries, investigations, or surveys of individuals, places, or financial accounts.

What is the procedure for the seizure or attachment of property during an investigation?

If there is a risk that property may be concealed or transferred during an investigation, the investigating officer can order its seizure or attachment. However, this order must be confirmed by the court within 30 days to remain effective.

Who manages properties that have been seized or forfeited?

The court may appoint a District Magistrate or another officer to manage seized or forfeited properties. This person, known as the Administrator, is responsible for handling the property and may be directed by the Central Government to dispose of it.

What is a notice of forfeiture and what does it require?

A notice of forfeiture is issued when a court believes that certain properties are proceeds of crime. The person holding the property is given 30 days to explain the source of the property and show why it should not be forfeited to the Central Government.

What happens if the court decides to forfeit property as proceeds of crime?

If the court finds that the property is indeed proceeds of crime, it will be forfeited to the Central Government, free from any claims or encumbrances.

Can a person opt to pay a fine instead of forfeiting their property?

Yes, if only a part of the property is identified as proceeds of crime, the court may allow the person to pay a fine equivalent to the market value of that part instead of forfeiting the property.

What happens to property transfers made after an attachment or forfeiture order?

Any transfer of property made after an attachment or forfeiture order is issued will be considered null and void if the property is later forfeited to the Central Government.

How are letters of request, summons, or warrants transmitted to or from contracting States?

The Central Government specifies the form and manner in which such letters of request, summons, or warrants should be transmitted to or received from a contracting State.

Can the application of the provisions discussed above be subject to conditions?

Yes, the Central Government can specify conditions, exceptions, or qualifications for the application of the provisions, discussed above, in relation to a contracting State by issuing a notification in the Official Gazette.

The provisions related to reciprocal arrangements for assistance in criminal matters and the procedures for the attachment and forfeiture of property under the BNSS reflect a robust legal mechanism intended to tackle the challenges posed by transnational crime.

By facilitating international cooperation and ensuring that no asset derived from criminal activities remains beyond the reach of justice, the BNSS represents a significant step forward in India’s legal landscape. It empowers Indian courts and law enforcement agencies to act decisively in concert with their international counterparts, ensuring that justice is served irrespective of geographical boundaries.

Therefore, the provisions of BNSS on reciprocal arrangements and property forfeiture are pivotal in reinforcing the rule of law in a globalized world. They not only safeguard the integrity of India’s legal system but also contribute to the global effort to combat crime. By enabling the identification, seizure, and forfeiture of assets tied to criminal activities, these provisions ensure that crime does not pay, thereby upholding the principles of justice and fairness both within India and the world.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.

The contents of this article are intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.