agreement between india and nepal on mutual legal assistance in criminal matters

The Union Cabinet today gave its approval for the signing of an Agreement between India and Nepal on Mutual Legal Assistance in Criminal Matters and also for ratifying it. The Agreement provides for effective cooperation between the two countries in the matters of investigation, prosecution and suppression of crime. Similar Agreements/Treaties have already been signed with United Kingdom, Canada, Russian Federation, Switzerland, Turkey, France, Kyrghyzstan, Kazakhstan, United Arab Emirates, Uzbekistan, Mongolia, Tajikistan, Ukrain, United States of America, South Africa, Bahrain, Thailand, Kuwait and South Korea.



The salient features of the Agreement are:



a) It will facilitate cooperation between both countries in the investigation, prosecution and suppression of crime including crime related to terrorism and tracing, restraint, forfeiture or confiscation of the proceeds and instruments of crime through co-operation and mutual legal assistance in criminal matters.



b) The assistance provided by either country under this agreement will include assistance in investigations, inquiries, trials or other proceedings relating to an offence created by the legislature of the contracting State. It also includes investigations or proceedings relating to offences concerning revenue and international transfer of currency or capital or payments.



c) The assistance which may be provided by signatory States includes:



i) locating, restraining, forfeiting or confiscating the proceeds and instruments of crime;

ii) taking of evidence or obtaining statements of persons;

iii) providing information, documents and records;

iv) communicating information available with each contracting state about criminal acts either committed or being planned to be committed within the territory of the other contracting state;

v) executing requests for search and seizure,

vi) delivery of lending of exhibits;

vii) making detained persons available for giving evidence or assisting investigations;

viii) serving of documents including documents seeking attendance of persons;

ix) exchanging names of the persons criminally convicted in serious crimes and suspects;

x) locating and identifying persons and objects, any other assistance consistent with the objects of this Agreement.



d) The Agreement does not apply to:



i) the arrest or detention of any person with a view to extraditing that person;

ii) the enforcement of a criminal judgement imposed in the Requesting State, except to the extent permitted by the law of the Requested State;

iii) transfer of persons in custody to serve sentence and transfer of proceedings in criminal matters.



e) The Agreement, subject to the laws of the respective contracting States, shall apply to requests for assistance made after its entry into force, even if the relevant acts or omissions occurred prior to that date.



f) Assistance may be refused by the Requested State if:



i) execution of the request would impair its sovereignty, security, public order or national interest;

ii) the request relates to an offence which is subject to investigation or prosecution in the Requested State or prosecution of which in the Requesting State would be incompatible with the Requested State’s law on double jeopardy;

iii) the execution of the request would be contrary to the domestic law of the Requested State or would constitute violation of a court order of the Requested State;

iv) the request seeks restraint, forfeiture or confiscation of proceeds or instruments of an activity which, had it occurred within the jurisdiction of the Requested State, would not have been an activity in respect of which a confiscation order could have been made;

v) the execution of request would prejudice an investigation or proceedings in the Requested State;

vi) the request relates to an offence in respect of which the accused persons had been finally acquitted or pardoned;

vii) if the request relates to an offence under military law, which is not an offence under ordinary criminal law.



g) The Agreement shall be interpreted without prejudicing the rights and obligations of the Contracting States under any other bilateral or multilateral agreements or arrangements to which they are parties and shall not prevent the Contracting States or their law enforcing agencies from providing assistance to each other pursuant to other agreements or arrangements.



h) Subject to its laws, the Requested State shall decide on the basis of justification on case by case basis to permit the persons concerned in the proceedings in the Requested State or their legal representatives to appear and assist in the recording of evidence.



YSR/DS/HS/CS