Section 105B CrPC - Assistance in Securing Transfer of Persons
Section 105B of the Code of Criminal Procedure, 1973 provided the statutory procedure for reciprocal assistance in securing the attendance or transfer of persons between India and a contracting State in connection with criminal proceedings, investigations and inquiries.
What was Section 105B of the CrPC?
Section 105B formed part of the reciprocal assistance framework under the Code of Criminal Procedure. It enabled Indian courts to seek execution of warrants and secure the attendance of persons located in a contracting State. It also provided for execution in India of certain warrants received from courts, Judges or Magistrates in contracting States.
The provision was particularly relevant where a criminal investigation, inquiry or proceeding had an international element and the person whose attendance was required was outside India in a State with which reciprocal arrangements existed.
Meaning of Contracting State
For purposes of this Chapter, the expression "contracting State" was defined in Section 105A of the CrPC. Broadly, it referred to a country or place outside India in respect of which arrangements had been made by the Central Government with the Government of that country through a treaty or otherwise.
The definition is important because Section 105B did not create a general mechanism for compulsory transfer of persons from every foreign country. Its operation depended upon the reciprocal arrangements contemplated by the statutory scheme.
See also: Section 105A CrPC - Definitions.
Section 105B CrPC - Bare Provision
(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.
How Section 105B Worked
| Provision | Purpose |
|---|---|
| Section 105B(1) | Execution in a contracting State of an Indian court's warrant relating to attendance of a person or production of a document or other thing. |
| Section 105B(2) | Summons or warrant to secure attendance of a person in a contracting State for an investigation or inquiry. |
| Section 105B(3) | Execution in India of a warrant issued by a Court, Judge or Magistrate in a contracting State. |
| Section 105B(4) | Conditions concerning transfer of a prisoner in India to a contracting State. |
| Section 105B(5) | Compliance with conditions governing a prisoner transferred from a contracting State to India. |
Warrant Issued by an Indian Court for Execution Abroad
Under sub-section (1), where an Indian court required its warrant to be executed in a contracting State, the warrant was required to be transmitted in duplicate in the prescribed form and through the authority specified by the Central Government.
The provision therefore contemplated an official channel for transmission rather than direct execution of an Indian judicial warrant in foreign territory.
Attendance of a Person During Investigation or Inquiry
Sub-section (2) specifically addressed the situation where a person located in a contracting State was required in connection with an investigation or inquiry into an offence.
An investigating officer, or an officer superior in rank to the investigating officer, could make an application to the Court. The Court was required to be satisfied that the person's attendance was necessary before issuing the appropriate summons or warrant.
Foreign Warrant Received for Execution in India
Section 105B(3) dealt with the reciprocal situation. When an Indian court received an appropriate warrant issued by a Court, Judge or Magistrate in a contracting State, the warrant was to be executed as if it had been received from another Indian court for execution within the local limits of the receiving court.
This statutory mechanism facilitated reciprocal judicial assistance while requiring the foreign process to operate through the procedure recognised by Indian law.
Transfer of Prisoners
Sub-sections (4) and (5) addressed cases involving persons who were already prisoners.
Where a prisoner in India was transferred to a contracting State, the Indian court or Central Government could impose appropriate conditions. Conversely, where a prisoner from a contracting State was transferred to India, the Indian court was required to ensure compliance with the conditions attached to the transfer.
Such a prisoner transferred to India was required to remain in custody subject to conditions that the Central Government could direct in writing.
Section 105B CrPC and Section 114 BNSS
Under the Bharatiya Nagarik Suraksha Sanhita, 2023, the corresponding provision dealing with assistance in securing transfer of persons is Section 114.
Section 105B CrPC therefore remains important when researching proceedings, orders and legal issues governed by the earlier Code, while Section 114 BNSS is the corresponding provision under the present procedural framework.
Related CrPC Provisions
Section 105B should be read as part of the broader statutory scheme concerning reciprocal arrangements for assistance in criminal matters. The adjoining provisions deal with definitions, attachment and forfeiture of property, identification of unlawfully acquired property, management of seized property and related procedures.
This page explains the legal position under the Code of Criminal Procedure, 1973 before implementation of the BNSS and is intended for legal information and research.