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1 [In this Chapter, unless the context otherwise requires,–
(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;
(b) “identifying” includes establishment of a proof that the property was derived from, or used in, the commission of an offence;
(c) “proceeds of crime” means any property derived or obtained directly or indirectly, by any person as a result of criminal activity (including crime involving currency transfers) or the value of any such property;
(d) “property” means property and assets of every description whether corporeal or incorporeal, movable or immovable, tangible or intangible and deeds and instruments evidencing title to, or interest in, such property or assets derived or used in the commission of an offence and includes property obtained through proceeds of crime;
(e) “tracing” means determining the nature, source, disposition, movement, title or ownership of property
1. Ins. by Act 40 of 1993, s. 2 (w.e.f. 20-7-1994)
Study Notes
Section 105A of the Code of Criminal Procedure (CrPC) provides definitions for various terms used in Chapter VII-A of the CrPC. This chapter deals with the provisions related to the attachment, forfeiture, and management of property involved in the commission of a crime. The definitions provided in this section help in understanding the scope and application of the provisions in the following sections. These definitions include terms such as “contracting state,” “proceeds of crime,” and “tracing.” The section was inserted by the Code of Criminal Procedure (Amendment) Act, 1993.
(1) Where a Court in India, in relation to a criminal matter, desires that a warrant for arrest of any person to attend or produce a document or other thing issued by it shall be executed in any place in a contracting State, it shall send such warrant in duplicate in such form to such Court, Judge or Magistrate through such authority, as the Central Government may, by notification, specify in this behalf and that Court, Judge or Magistrate, as the case may be, shall cause the same to be executed.
(2) Notwithstanding anything contained in this Code, if, in the course of an investigation or any inquiry into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that the attendance of a person who is in any place in a contracting State is required in connection with such investigation or inquiry and the Court is satisfied that such attendance is so required, it shall issue a summons or warrant, in duplicate, against the said person to such Court, Judge or Magistrate, in such form as the Central Government may, by notification, specify in this behalf, to cause the same to be served or executed.
(3) Where a Court in India, in relation to a criminal matter, has received a warrant for arrest of any person requiring him to attend or attend and produce a document or other thing in that Court or before any other investigating agency, issued by a Court, Judge or Magistrate in a contracting State, the same shall be executed as if it is the warrant received by it from another Court in India for execution within its local limits.
(4) Where a person transferred to a contracting State pursuant to sub-section (3) is a prisoner in India, the Court in India or the Central Government may impose such conditions as that Court or Government deems fit.
(5) Where the person transferred to India pursuant to sub-section (1) or sub-section (2) is a prisoner in a contracting State, the Court in India shall ensure that the conditions subject to which the prisoner is transferred to India are complied with and such prisoner shall be kept in such custody subject to such conditions as the Central Government may direct in writing.
Study Notes
Section 105B of the Indian Code of Criminal Procedure provides for the procedure for securing transfer of persons in connection with a criminal matter between India and a contracting State.
Purpose:
- To enable Indian courts to execute warrants for arrest or summonses issued by courts, judges or magistrates in contracting States.
- To enable Indian courts to secure the attendance of a person who is in a contracting State and is required in connection with an investigation or inquiry into an offence.
Execution of warrant for arrest in a contracting State:
- If an Indian court desires that a warrant for arrest of any person be executed in a contracting State, it shall send such warrant in duplicate in the specified form to the court, judge or magistrate in the contracting State through the authority specified by the Central Government.
- The court, judge or magistrate in the contracting State shall cause the warrant to be executed.
Summoning a person from a contracting State:
If an investigating officer or any superior officer makes an application for the attendance of a person who is in a contracting State in connection with an investigation or inquiry into an offence, the court may issue a summons or warrant in duplicate against the said person to the court, judge or magistrate in the contracting State in the specified form to cause the same to be served or executed.
Execution of warrant for arrest received from a contracting State:
- If an Indian court receives a warrant for arrest of any person requiring him to attend or produce a document or other thing issued by a court, judge or magistrate in a contracting State, it shall be executed as if it is the warrant received by it from another Indian court.
- Imposition of conditions on transferred prisoner:
- If a person transferred to a contracting State pursuant to sub-section (3) is a prisoner in India, the court or the Central Government may impose such conditions as it deems fit.
Custody of transferred prisoner:
- If the person transferred to India pursuant to sub-section (1) or sub-section (2) is a prisoner in a contracting State, the court in India shall ensure that the conditions subject to which the prisoner is transferred to India are complied with.
- The Central Government may direct in writing as to the custody subject to such conditions in which the prisoner shall be kept.
(1) 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 such property, as it may deem fit under the provisions of sections 105D to 105J (both inclusive).
(2) Where the Court has made an order for attachment or forfeiture of any property under sub-section (1), and such property is suspected to be in a contracting State, the Court may issue a letter of request to a Court or an authority in the contracting State for execution of such order.
(3) Where a letter of request is received by the Central Government from a Court or an authority in a contracting State requesting attachment or forfeiture of the property in India, derived or obtained, directly or indirectly, by any person from the commission of an offence committed in that contracting State, the Central Government may forward such letter of request to the Court, as it thinks fit, for execution in accordance with the provisions of sections 105D to 105J (both inclusive) or, as the case may be, any other law for the time being in force.
Study Notes
Section 105C of the Code of Criminal Procedure (CrPC) deals with the assistance in relation to orders of attachment or forfeiture of property. The section can be simplified and explained in the following manner:
-Grounds for Attachment or Forfeiture of Property:
If a Court in India has reasonable grounds to believe that any property obtained by a person is derived or obtained directly or indirectly from the commission of an offence, it may make an order of attachment or forfeiture of such property under the provisions of sections 105D to 105J of the CrPC.
-Execution of Order in a Contracting State:
If the Court has made an order for attachment or forfeiture of any property, and such property is suspected to be in a contracting State, the Court may issue a letter of request to a Court or an authority in the contracting State for execution of such order.
-Request from a Contracting State:
If the Central Government receives a letter of request from a Court or an authority in a contracting State requesting attachment or forfeiture of property in India, derived or obtained directly or indirectly by any person from the commission of an offence committed in that contracting State, the Central Government may forward such letter of request to the Court for execution under the provisions of sections 105D to 105J of the CrPC, or any other law in force at the time.
In summary, section 105C of the CrPC deals with the attachment or forfeiture of property obtained through the commission of an offence, and the assistance required for the execution of such orders in a contracting State.
(1) The Court shall, under sub-section (1), or on receipt of a letter of request under sub-section (3) of section 105C, direct any police officer not below the rank of Sub-Inspector of Police to take all steps necessary for tracing and identifying such property.
(2) The steps referred to in sub-section (1) may include any inquiry, investigation or survey in respect of any person, place, property, assets, documents, books of account in any bank or public financial institutions or any other relevant matters.
(3) Any inquiry, investigation or survey referred to in sub-section (2) shall be carried out by an officer mentioned in sub-section (1) in accordance with such directions issued by the said Court in this behalf.
(1) Where any officer conducting an inquiry or investigation under section 105D has a reason to believe that any property in relation to which such inquiry or investigation is being conducted is likely to be concealed transferred or dealt with in any manner which will result in disposal of such property, he may make an order for seizing such property and where it is not practicable to seize such property, he may make an order of attachment directing that such property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order, and a copy of such order shall be served on the person concerned.
(2) Any order made under sub-section (1) shall have no effect unless the said order is confirmed by an order of the said Court, within a period of thirty days of its being made.
Study Notes
Section 105E of the Code of Criminal Procedure (CrPC) deals with the seizure or attachment of property in cases where an inquiry or investigation is being conducted under section 105D.
Seizure or attachment of property:
- If an officer conducting an inquiry or investigation under section 105D has a reason to believe that any property in relation to which such inquiry or investigation is being conducted is likely to be concealed, transferred or dealt with in any manner which will result in disposal of such property, he may make an order for seizing such property.
- If it is not practicable to seize such property, the officer may make an order of attachment directing that such property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order.
- A copy of such order shall be served on the person concerned.
Confirmation of order:
- Any order made under sub-section (1) shall have no effect unless the said order is confirmed by an order of the Court within a period of thirty days of its being made.
Example:
Suppose a police officer is conducting an investigation under section 105D and has reason to believe that a suspect has transferred a valuable property to another person in order to conceal it from the investigating authorities. In such a scenario, the officer may make an order for seizing such property or make an order of attachment directing that such property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order. The officer must serve a copy of the order to the person concerned. However, any such order shall have no effect unless the said order is confirmed by an order of the Court within a period of thirty days of its being made.
(1) The Court may appoint the District Magistrate of the area where the property is situated, or any other officer that may be nominated by the District Magistrate, to perform the functions of an Administrator of such property.
(2) The Administrator appointed under sub-section (1) shall receive and manage the property in relation to which the order has been made under sub-section (1) of section 105E or under section 105H in such manner and subject to such conditions as may be specified by the Central Government.
(3) The Administrator shall also take such measures, as the Central Government may direct, to dispose of the property which is forfeited to the Central Government.
Study Notes
Section 105F of the Code of Criminal Procedure, 1973 pertains to the management of properties seized or forfeited under this chapter. The following are the detailed notes:
Appointment of Administrator:
- The Court is empowered to appoint the District Magistrate of the area where the property is situated or any other nominated officer by the District Magistrate to perform the functions of an Administrator of such property.
- The administrator appointed shall manage the property in relation to which the order has been made under sub-section (1) of section 105E or under section 105H.
Function of the Administrator:
- The Administrator shall receive and manage the property in such manner and subject to such conditions as specified by the Central Government.
- The Administrator shall also take such measures as directed by the Central Government for the disposal of forfeited property to the Central Government.
Disposal of property:
- The Administrator shall dispose of the property which is forfeited to the Central Government as directed by the Central Government.
- The Central Government may specify the manner and conditions of disposal of the property.
(1) If as a result of the inquiry, investigation or survey under section 105D, the Court has reason to believe that all or any of such properties are proceeds of crime, it may serve a notice upon such person (hereinafter referred to as the person affected) calling upon him within a period of thirty days specified in the notice to indicate the source of income, earnings or assets, out of which or by means of which he has acquired such property, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties, as the case may be, should not be declared to be proceeds of crime and forfeited to the Central Government.
(2) Where a notice under sub-section (1) to any person specifies any property as being held on behalf of such person by any other person, a copy of the notice shall also be served upon such other person.
Study Notes
Section 105G of the Code of Criminal Procedure, 1973 pertains to the notice of forfeiture of property.
- Notice of forfeiture:
If as a result of the inquiry, investigation or survey under section 105D, the Court has reason to believe that all or any of such properties are proceeds of crime, it may serve a notice upon the person affected, calling upon him to indicate the source of income, earnings or assets out of which or by means of which he has acquired such property, the evidence on which he relies and other relevant information and particulars. The notice also requires the person to show cause why all or any of such properties should not be declared to be proceeds of crime and forfeited to the Central Government.
- Service of notice:
Where a notice under sub-section (1) to any person specifies any property as being held on behalf of such person by any other person, a copy of the notice shall also be served upon such other person.
(1) The Court may, after considering the explanation, if any, to the show-cause notice issued under section 105G and the material available before it and after giving to the person affected (and in a case where the person affected holds any property specified in the notice through any other person, to such other person also) a reasonable opportunity of being heard, by order, record a finding whether all or any of the properties in question are proceeds of crime:
Provided that if the person affected (and in a case where the person affected holds any property specified in the notice through any other person such other person also) does not appear before the Court or represent his case before it within a period of thirty days specified in the show-cause notice, the Court may proceed to record a finding under this sub-section ex parte on the basis of evidence available before it.
(2) Where the Court is satisfied that some of the properties referred to in the show-cause notice are proceeds of crime but it is not possible to identify specifically such properties, then, it shall be lawful for the Court to specify the properties which, to the best of its judgment, are proceeds of crime and record a finding accordingly under sub-section (1).
(3) Where the Court records a finding under this section to the effect that any property is proceeds of crime, such property shall stand forfeited to the Central Government free from all encumbrances.
(4) Where any shares in a company stand forfeited to the Central Government under this section, then, the company shall, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956) or the articles of association of the company, forthwith register the Central Government as the transferee of such shares.
Study Notes
Section 105H of the Code of Criminal Procedure (CrPC) deals with the forfeiture of property in certain cases. Here are the detailed notes:
Recording finding by Court:
- The Court may record a finding after considering the explanation, if any, to the show-cause notice issued under Section 105G and the material available before it.
- The Court must give a reasonable opportunity of being heard to the person affected and to any other person who holds any property specified in the notice through the person affected.
- The Court must record a finding whether all or any of the properties in question are proceeds of crime.
Specifying properties:
- If the Court is satisfied that some of the properties referred to in the show-cause notice are proceeds of crime but it is not possible to identify specifically such properties, then the Court can specify the properties which, to the best of its judgement, are proceeds of crime.
- The Court must record a finding accordingly under subsection (1) of Section 105H.
Forfeiture of property:
- When the Court records a finding that any property is proceeds of crime, such property shall stand forfeited to the Central Government free from all encumbrances.
Registration of shares:
- When any shares in a company stand forfeited to the Central Government under Section 105H, the company shall register the Central Government as the transferee of such shares.
- This provision overrides anything contained in the Companies Act, 1956, or the articles of association of the company.
(1) Where the Court makes a declaration that any property stands forfeited to the Central Government under section 105H and it is a case where the source of only a part of such property has not been proved to the satisfaction of the Court, it shall make an order giving an option to the person affected to pay, in lieu of forfeiture, a fine equal to the market value of such part.
(2) Before making an order imposing a fine under sub-section (1), the person affected shall be given a reasonable opportunity of being heard.
(3) Where the person affected pays the fine due under sub-section (1), within such time as may be allowed in that behalf, the Court may, by order, revoke the declaration of forfeiture under section 105H and thereupon such property shall stand released.
Study Notes
Section 105-I of the Code of Criminal Procedure, 1973 deals with the provision of “Fine in lieu of forfeiture”. Here are the details of the section:
- Declaration of forfeiture: Where the Court declares that any property stands forfeited to the Central Government under section 105H of the Code, and it is a case where the source of only a part of such property has not been proved to the satisfaction of the Court, it shall make an order giving an option to the person affected to pay a fine equal to the market value of such part in lieu of forfeiture.
- Opportunity of being heard: Before making an order imposing a fine under sub-section (1), the person affected shall be given a reasonable opportunity of being heard.
- Payment of fine: If the person affected pays the fine due under sub-section (1) within the allowed time, the Court may, by order, revoke the declaration of forfeiture under section 105H, and thereupon such property shall stand released.
Therefore, the section provides an option to the person affected to pay a fine equal to the market value of the part of the property for which the source has not been proved to the satisfaction of the Court. The person affected is given a reasonable opportunity of being heard before imposing a fine, and if the fine is paid within the allowed time, the property stands released.
Where after the making of an order under subsection (1) of section 105E or the issue of a notice under section 105G, any property referred to in the said order or notice is transferred by any mode whatsoever such transfers shall, for the purposes of the proceedings under this Chapter, be ignored and if such property is subsequently forfeited to the Central Government under section 105H, then, the transfer of such property shall be deemed to be null and void.
Study Notes
Section 105J of the Code of Criminal Procedure (CrPC) deals with certain transfers that are null and void in the context of forfeiture of property under Chapter VIIA. Here are the detailed notes on this section:
Order or notice: This section applies to any property that is referred to in an order made under subsection (1) of Section 105E or a notice issued under Section 105G of the CrPC.
Transfer after order or notice: If any property that is subject to an order or notice under Section 105E or 105G is transferred by any mode whatsoever after the making of such order or notice, such transfers will be ignored for the purposes of proceedings under Chapter VIIA of the CrPC.
Deemed null and void: If such property is subsequently forfeited to the Central Government under Section 105H, then the transfer of such property will be deemed to be null and void.
Overall, this section is aimed at preventing individuals from transferring properties that are subject to forfeiture under Chapter VIIA of the CrPC to evade such forfeiture. By declaring such transfers to be null and void, the section ensures that the property in question can be forfeited to the government to prevent misuse of the same.
Every letter of request, summons or warrant, received by the Central Government from, and every letter of request, summons or warrant, to be transmitted to a contracting State under this Chapter shall be transmitted to a contracting State or, as the case may be, sent to the concerned Court in India in such form and in such manner as the Central Government may, by notification, specify in this behalf.
Study Notes
Section 105K of the Code of Criminal Procedure (CrPC) deals with the procedure to be followed for transmitting letters of request, summons or warrants to or from a contracting State under this chapter. Here are the details of this section:
- Purpose: The main purpose of Section 105K is to provide a procedure for transmitting letters of request, summons or warrants between the Central Government and contracting states.
- Scope: This section applies to all letters of request, summons or warrants that are received by the Central Government from, or transmitted to, a contracting State under Chapter-VIIA.
- Transmission of letters: Section 105K requires that all letters of request, summons or warrants received by the Central Government from a contracting State, or to be transmitted to a contracting State, should be transmitted or sent in such form and manner as specified by the Central Government through a notification.
- Central Government’s power: The Central Government has the power to specify the form and manner in which letters of request, summons or warrants are to be transmitted or sent to a contracting State under this section.
- Compliance: The concerned Court in India or the contracting State must comply with the specified form and manner while transmitting or sending letters of request, summons or warrants.
- Non-compliance: If the concerned Court in India or the contracting State fails to comply with the specified form and manner, it may result in delays or even rejection of the request.
In summary, Section 105K of CrPC lays down the procedure for transmitting letters of request, summons or warrants between the Central Government and contracting States in a specified form and manner to ensure effective cooperation in criminal matters.
The Central Government may, by notification in the Official Gazette, direct that the application of this Chapter in relation to a contracting State with which reciprocal arrangements have been made, shall be subject to such conditions, exceptions or qualifications as are specified in the said notification.]
Study Notes
Section 105L of the Code of Criminal Procedure (CrPC) lays down the following provisions:
- Application of this Chapter: This section specifies that the provisions of Chapter VIIA of the CrPC, which deals with the attachment, seizure, and forfeiture of property in connection with foreign criminal proceedings, shall apply to a contracting State only if reciprocal arrangements have been made between India and such State.
- Notification in the Official Gazette: The Central Government may issue a notification in the Official Gazette to specify the conditions, exceptions, or qualifications subject to which the provisions of this chapter shall apply in relation to a contracting State.
In summary, this section empowers the Central Government to make arrangements with a contracting State for the application of Chapter VA and to specify the conditions, exceptions, or qualifications for such application through a notification in the Official Gazette.