About service of court summons/notice
vinodkumar
(Querist) 01 March 2013
This query is : Resolved
A LADY FILE A APPLICATION FOR MAINATINCE U/S CRPC 125, HER HUSBAND STAYED IN AUSTRALIA , ALL READY PASS TWO YEAR BUT DUE TO CHANGE OF ADDRES THE COURT SUMMONS/NOTICE NOT SURVED, AND THAT WHY THE MATTER IS DELAYED, ANY LEAGLE PROCEDURE FOR SERVICE OF SUMMONS/NOTICE IN ABROAD? OR BY WHICH AUTHORITY THROUGH THE SURVICE PROCRDURE OF SUMMONS MADE CORRECT?
ajay sethi
(Expert) 01 March 2013
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, 9th 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.
prabhakar singh
(Expert) 01 March 2013
Nothing left by Mr.Sethi.
But AUSTRALIA is not in list of MLAT,however request of service is possible.
R.K Nanda
(Expert) 01 March 2013
no more to add.
Devajyoti Barman
(Expert) 02 March 2013
Yes.
Apart from that you can send any summons through India Post preferably through Speed Post and keep track of its movement.
The status report of delivery of article in its site is regarded as valid proof of service and on which basis the court can proceed with the case ex parte.
Raj Kumar Makkad
(Expert) 02 March 2013
Nothing to add more in the given advice.
Nadeem Qureshi
(Expert) 02 March 2013
Mr. Sethi is rightly advise
Section 105 to 105 L is related to all these matters
105. Reciprocal arrangements regarding processes.
(1) Where a court in the territories to which this Code extends (hereafter in this section referred to as the said territories desires that-
(a) a summons to an accused person, or
(b) a warrant for the arrest of an accused person, or
(c) a summons to any person requiring him to attend and produce a document or other thing, or to produce it, or
(d) a search warrants,
1[issued by it shall be served or executed at any place, -
(i) within the local jurisdiction of a court in any State or area in India outside the said territories, it may send such summons or warrant in duplicate by post or otherwise, to the presiding officer of that court to be served or executed; and where any summons referred to in clause (a) or clause (c) has been so served, the provisions of section 68 shall apply in relation to such summons as if the presiding officer of the court to whom it is sent were a Magistrate in the said territories;
(ii) in any country of place outside India in respect of which arrangements have been made by the Central Government with the Government of such country or place for service or execution of summons or warrant in relation to criminal matters (hereafter in this section referred to as the contracting State), it may send such summons or warrant in duplicate in such form, directed to such court, Judge or Magistrate, and sent to such authority for transmission, as the Central Government may, by notification, specify in this behalf.]
(2) Where a court in the said territories has received for service or execution-
(a) a summons to an accused person, or
(b) a warrant for the arrest of an accused person, or
(c) a summons to any person requiring him to attend and produce a document or other things or to produce it, or
(d) a search warrant.
1[issued by--
(i) a court in any State or are in India outside the said territories
(ii) a court, Judge or Magistrate in a contracting State,
It shall cause the same to be served or executed] as if it were a summons or warrant received by it from another court in the said territories for service or execution within its local Jurisdiction; and where
(i) a warrant of arrest has been executed, the person arrested shall, so far as possible, be dealt with in accordance with the procedure prescribed by sections 80 and 81;
(ii) a search warrant has been executed, the things found in the search shall, so far as possible, be dealt with in accordance with the procedure prescribed by section 101:
2[Provided that in a case where a summons or search warrant received from a contracting State has been executed, the documents or things produced or things found in the search shall be forwarded to the court issuing the summons or search warrant through such Authority as the Central Government may, by notification, specify in this behalf.]
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