Securing Justice Across Borders – Greater Kashmir

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

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

As the world becomes increasingly interconnected, crimes such as money laundering, terrorist financing and organised criminal activities often transcend national borders. In response, the BNSS is introducing detailed procedures for cooperation with foreign states, known as contracting states, which enable mutual legal assistance in criminal matters.

This cooperation includes the exchange of evidence, the enforcement of warrants, and the seizure and confiscation of property obtained through criminal activities. These measures ensure that crime, wherever it is committed, can be effectively combated through coordinated international efforts.

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

What is meant by a Contracting State according to the BNSS?

A Contracting State is a country or place outside India with which the Indian Central Government has made arrangements by treaty or otherwise.

How is the term ‘identify’ defined in the context of property connected to a crime?

Identification means providing evidence that a particular object originated from or was used in the commission of a crime.

What are proceeds of crime?

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

How is ownership defined under BNSS?

Property includes all types of assets, whether tangible or intangible, movable or immovable, corporeal or incorporeal. This definition also includes instruments, instruments and assets derived from or used in the commission of a crime, including property obtained through criminal activity.

What does the term “tracking” mean in relation to ownership?

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

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

A writ 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 investigate a person or collect documents relevant to a case being investigated in India. The collected evidence is then sent back to the Indian court.

How is an application letter from abroad treated in India?

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

What assistance is provided to facilitate transfer of persons between India and a Contracting State?

If a person is arrested in India for a criminal case and is in a Contracting State, a court in India may send a warrant of arrest to the competent authority in the Contracting State. If a warrant of arrest is received from a Contracting State, it shall be executed as if it had been issued in India.

What happens if goods suspected of having been obtained through crime are located in a Contracting State?

If an Indian court finds that property in a contracting state has been obtained by means of a crime, it may send a petition to the foreign authority requesting the seizure or forfeiture of that property.

How does the law ensure the identification of unlawfully obtained goods?

The court may order a police officer to search for and identify property that may have been unlawfully obtained. This may include making inquiries, investigations or surveys of persons, places or financial accounts.

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

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

Who manages seized or forfeited goods?

The court may appoint a district magistrate or other officer to administer seized or forfeited property. This person, known as the administrator, is responsible for dealing with the property and may be directed by the central government to sell it.

What is a forfeiture and what are its requirements?

A forfeiture notice is issued when a court finds that certain property is the 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 assets as proceeds of crime?

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

Can someone choose to pay a fine instead of forfeiting their property?

Yes, if only a portion of the property is determined to be proceeds of crime, the court may impose a fine on the person equal to the fair market value of that portion, instead of forfeiting the property.

What happens to transfers of ownership that take place after a seizure or forfeiture order?

Any transfer of property made after a warrant of attachment or confiscation has been issued shall be deemed void if the property is subsequently forfeited to the Central Government.

How are requests, summonses or orders sent to or from the Contracting States?

The Central Government shall determine the form and manner in which such letters of request, summons or orders shall be sent to or received from a Contracting State.

Can the provisions discussed above be subject to conditions?

Yes, the Central Government may specify conditions, exceptions or qualifications for the application of the provisions discussed above in relation to a Contracting State by publishing a notice in the Government Gazette.

The provisions on mutual legal assistance arrangements in criminal matters and the procedures for seizure and confiscation of property under the BNSS constitute a robust legal mechanism designed to address the challenges of transnational crime.

By facilitating international cooperation and ensuring that no property resulting 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 collaboration with their international counterparts, and ensure that justice is served regardless of geographical boundaries.

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

Muneeb Rashid Malik is an advocate practising 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 content of this article is intended to provide a general guide to the subject. You should seek professional advice on your specific circumstances.