MINISTRY OF HOME AFFAIRS ISSUES REVISED GUIDELINES FOR MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

The Ministry of Home Affairs (MHA) has recently published certain comprehensive and revised Guidelines for Mutual Legal Assistance in Criminal Matters dated 04-12-2019 (Guidelines) on 08-01-2020. These Guidelines are aimed at streamlining the process of request for international mutual legal assistance in criminal cases including investigation, service of summons/notices/judicial documents, extradition of criminals, etc.  

In view of various Conventions, Reciprocal Arrangements, and Mutual Legal Assistance Treaties (MLATs) pertaining to criminal matters, that India has entered into with several countries across the world, these countries cooperate with each other in the following manner, in order to provide and obtain formal assistance in prevention, suppression, investigation and prosecution of crime, so that criminals do not escape the due process of law by taking refuge in other countries:

1- Letters Rogatory (LRs)- LRs are sent by a court of a member country to a court of another member country seeking mutual legal assistance in service of documents, taking of evidence, conducting investigation or prosecution in criminal matters such as money laundering, etc.

2- Mutual Legal Assistance (MLA) Request- An MLA Request is a formal request made by MHA under the provisions of any Convention and/or MLAT, with the Central Government of another member country, on the request of an investigating officer.

3- Service of summons, notices and judicial processes- A competent court in India may send a service of summons, notices, and judicial processes to MHA, which further forwards the same to the foreign country through its Embassy/High Commission/Diplomatic Channels in India or any other competent authority in such foreign country.

4- Informal requests- Informal request for mutual legal assistance in criminal matters may be made through INTERPOL channels.

In one such instance, the Indian Government had made several extradition requests to multiple countries to extradite Mr. Nirav Modi, the Fugitive Diamond Merchant, back to India to continue legal proceedings against him in the Punjab National Bank scam case in 2018.

Although in some cases, the requests for mutual legal assistance may be refused by MHA on the grounds that the execution of such request may impair sovereignty, security, public order and public interest of India or of the foreign country, etc, or the request made is not pertaining to any act or omission that does not amount to an offence under the ordinary criminal laws of India or of that foreign country, etc.

But so far, the Government has initiated various training programmes in coordination with various foreign experts, Central Bureau of Investigation (CBI), etc to train the Indian law enforcement agencies to handle the process of requesting and obtaining international mutual legal assistance in criminal matters, etc. This would help the Government to expedite the investigation procedure and the courts to decide and dispose of criminal matters in a speedy and efficient manner.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer