Jharkhand High Court Quashes Summons Issued To Swiss Resident, Says Police Must First Obtain MHA Concurrence

The Jharkhand High Court quashed summons issued to a Swiss resident in a criminal case, observing that in terms of the Mutual Legal Assistance Treaty, the Investigating Agency is required to forward its draft request to Internal Security Division of Ministry of Home Affairs (MHA) for its concurrence on seeking attendance of a person from contracting State.Justice Anil Kumar Choudhary however noted that in the facts of the case, the Investigating Agency had directly approached the court of Chief Judicial Magistrate for issuing summons, which could not be held to be in accordance with law. It thus also quashed the non-bailable warrant issued against the petitioner as he did not appear after being summoned.The bench observed, "...the Investigating Agency is required to forward the draft request to IS-II Division, MHA (Central Authority) for concurrence and the Investigating Agency has to prepare a draft request and with the approval of the Director of Investigating Agency or the State Government and remit the same to the IS-II Division, MHA and after examination of IS-II Division, MHA may provide concurrence inter alia the Investigating Agency to approach the court for issuing the Letter of Request (LR) or for sending the MLA request, as the case may be and only upon such concurrence, the Investigating Agency may approach the court for issuing the Letter of Request (LR) or sending the MLA request, as the case may be."It however added that the Investigating Agency is at liberty to approach the Central Authority with the draft request in accordance with the Guidelines on Mutual Legal Assistance in Criminal Matters issued MHA.The above ruling came in a writ petition filed by one Mark Reidy - a citizen of Ireland and a permanent resident of Switzerland - seeking quashing of summons issued by the Chief Judicial Magistrate, Ranchi, and the subsequent non-bailable warrant issued against him. He claimed that the summons were issued without any authority or force of law and it was not in accordance with Mutual Legal Assistance Treaty between India and Switzerland (MLAT).A case was registered based on a complaint by one Kishor Exports, represented by its proprietor Deepak Agarwal, alleging that Reidy and employees of his company, WINC, had committed offences punishable under IPC Sections 419(Punishment for cheating by personation), 420(cheating and dishonestly inducing delivery of property), 467(forgery of valuable security, will, etc.), 468(Forgery for purpose of cheating), 471(Using as genuine a forged document or electronic record) among others. In response to the complaint, the investigating officer filed a plea to issue a warrant of arrest against the writ petitioner and another. The Chief Judicial Magistrate, Ranchi, issued the summons and requested the Under Secretary (Legal Cell), Internal Security-II Division, Ministry of Home Affairs with a request to serve summon in connection with the complaint case.The petitioner argued that before issuance of summons and before the Investigating Officer even approached the court, the Investigating Officer should have approached the Internal Security-II Division, Ministry of Home Affairs, Government of India. It was argued that the Central Government mandates that in case of sending request for assistance, the Investigating Agency is required to forward the draft request to the Internal Security-II Division, Ministry of Home Affairs (Central Authority) for concurrence and after examination, the Internal Security-II Division, Ministry of Home Affairs must provide the concurrence to the Investigating Authority etc. to approach the court for issuing the Letter of Request (LR) or for sending MLA request, as the case may be. It was argued that the Investigating Agency without obtaining the concurrence of the IS-II Division of the MHA has straightaway approached the court, the court ought not to have issued the request for service of summons.The State argued that Reidy was served with the notice through proper medium by the Ministry of Home Affairs, India on 07.09.2022 but he did not appear. It was submitted that the summons has been issued to the petitioner as per the comprehensive guidelines of Ministry of Home Affairs dated 04.12.2019 and no illegality is there in the notice except discrepancy in the case number. Noting that Section 105(B) (2) (assistance in securing transfer of persons) of the Code of Criminal Procedure starts with non-obstante clause the court said that it will override all other provisions of the Code of Criminal Procedure.It said that though the Investigating Agency had made request for assistance for attendance of the petitioner, who is in the contracting State of Switzerland and as the attendance of the petitioner is required in connection of investigation of the criminal case therefore the request had to be in terms of Section 105(B)(2) CrPC, and Centre's notification on the subject.Quashing the summons and the non-bailable warrant, the court further...

Jharkhand High Court Quashes Summons Issued To Swiss Resident, Says Police Must First Obtain MHA Concurrence

Bhavya Singh

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