Chapter VIIA
Section 105B CrPC: Assistance in securing transfer of persons
New Law Update (2024)
Section 105 BNSS
TRIAL COURT
Punishment
Procedural – Warrant / Summons Process
Cognizable?
Bailable?
Compoundable?
Bare Act Text
(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.
Important Sub-Sections Explained
Section 105B(1)
This sub-section allows an Indian court, in a criminal matter, to request a court in a ‘contracting State’ (a country with a mutual legal assistance treaty with India) to execute an arrest warrant for a person or for the production of documents or things. The request is sent through a specified authority as notified by the Central Government.
Section 105B(3)
Conversely, this sub-section mandates that when an Indian court receives a warrant for arrest or attendance from a court in a ‘contracting State’, it must execute that warrant as if it were issued by another Indian court for execution within its own local jurisdiction.
Landmark Judgements
Draft Format / Application
IN THE COURT OF THE [Designation of Judge, e.g., Chief Metropolitan Magistrate / Sessions Judge]
AT [City]
Crl. Misc. Application No. ________ of 20XX
IN THE MATTER OF:
THE STATE (Through Investigating Officer, P.S. [Police Station Name])
Versus
[Accused Name, if any, or ‘In re: Investigation into F.I.R. No. …’]
APPLICATION UNDER SECTION 105B(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973
FOR ISSUANCE OF SUMMONS/WARRANT TO A PERSON IN A CONTRACTING STATE
MOST RESPECTFULLY SHOWETH:
1. That the applicant is the Investigating Officer/Superior Officer in rank to the Investigating Officer, P.S. [Police Station Name], [District], currently investigating/inquiring into F.I.R. No. [FIR Number] dated [Date], under Sections [Relevant Sections of IPC/other laws] registered at P.S. [Police Station Name].
2. That in the course of the aforesaid investigation/inquiry, the attendance of Shri/Smt. [Name of Person], son/daughter of [Father’s Name], residing at [Address in Contracting State], currently believed to be in [Name of Contracting State], is essentially required for the purpose of [state purpose, e.g., examination as a witness, production of documents, facing trial, etc.].
3. That the said Shri/Smt. [Name of Person] is a material witness/accused person/person whose presence is crucial for the proper and effective conduct of the investigation/inquiry, and his/her attendance cannot be secured otherwise.
4. That [Name of Contracting State] is a ‘Contracting State’ as per the notification issued by the Central Government under the Code of Criminal Procedure, 1973.
5. That the Court is satisfied that the attendance of the aforesaid person is genuinely required for the purpose of the ongoing investigation/inquiry.
6. That it is therefore prayed that this Hon’ble Court may graciously be pleased to:
a. Issue summons/warrant (in duplicate) against Shri/Smt. [Name of Person] to the appropriate Court, Judge, or Magistrate in [Name of Contracting State], in the form as specified by the Central Government.
b. Direct the forwarding of the said summons/warrant through the appropriate authority as specified by the Central Government, to cause the same to be served/executed upon the said person.
c. Pass any other order(s) as this Hon’ble Court may deem fit and proper in the interests of justice.
AND FOR THIS ACT OF KINDNESS, THE APPLICANT, AS IN DUTY BOUND, SHALL EVER PRAY.
Date: [Date]
Place: [Place]
(Investigating Officer/Superior Officer)
P.S. [Police Station Name]
[District]
Through:
[Public Prosecutor/Advocate for the State]