Kiran Raj

The Jharkhand High Court has set aside the summons and non-bailable warrant of arrest issued against a foreign national in connection with an ongoing criminal investigation. The court held that the summons dated July 14, 2022, and the subsequent non-bailable warrant of arrest dated January 13, 2023, were issued without adherence to the proper procedure under the Mutual Legal Assistance Treaty (MLAT) between India and Switzerland. The investigating agency has been directed to follow the prescribed legal framework for requesting assistance from a foreign jurisdiction.

The order states: “The summons, the copy of which have been kept at page-49 and 52 of the brief dated 14.07.2022, is not in accordance with law. Accordingly, the same is quashed and set aside.”

The writ petition was filed by Mark Reidy, a citizen of Ireland and a permanent resident of Switzerland, challenging the summons issued by the Chief Judicial Magistrate, Ranchi, in Complaint Case No. 190 of 2021. The petitioner also sought to quash the subsequent non-bailable warrant of arrest issued against him.

The case originated from a complaint filed by Kishor Exports, represented by its proprietor, Deepak Agarwal. The complaint alleged that the petitioner, as the owner of WINC, along with its employees, had committed offenses punishable under Sections 419, 420, 467, 468, 471, and 474 of the Indian Penal Code (IPC). Following the complaint, Ormanjhi P.S. Case No. 190 of 2021 was registered.

The investigating officer filed a request for the issuance of a warrant of arrest against the petitioner on July 14, 2022. The Chief Judicial Magistrate, Ranchi, issued the summons and requested the Under Secretary (Legal Cell), Internal Security-II Division, Ministry of Home Affairs (MHA), to serve it in connection with the case. However, an error was noted in the summons, where the case number was incorrectly mentioned as “Complaint Case No. 190 of 2021” instead of “Ormanjhi P.S. Case No. 190 of 2021.”

The petitioner’s counsel contended that the summons and arrest warrant were issued without compliance with the provisions of Section 105(B)(2) of the Code of Criminal Procedure, 1973 (CrPC), which governs the procedure for securing the attendance of persons residing in contracting states under a Mutual Legal Assistance Treaty. The court’s attention was drawn to the procedural requirements specified in the MLAT between India and Switzerland.

It was argued that before seeking a summons or warrant against a foreign national, the investigating officer must first approach the Internal Security-II Division of the MHA for concurrence. Only upon obtaining such concurrence could the request be forwarded to the concerned court for issuance of legal process. The petitioner’s counsel referred to the guidelines issued by the MHA, which explicitly require the investigating agency to submit a draft request for assistance to the IS-II Division for approval before initiating any legal proceedings against a foreign national.

The counsel for the State conceded that there was an error in the case number mentioned in the summons but maintained that the petitioner was duly served with notice through the proper channels on September 7, 2022. The State further argued that there was sufficient material on record against the petitioner, justifying the summons and the subsequent issuance of a non-bailable warrant.

The counsel for the complainant supported the submissions made by the State, asserting that the petitioner had failed to appear despite receiving notice. It was submitted that the investigating agency had acted in accordance with the comprehensive guidelines issued by the MHA on December 4, 2019.

The High Court examined Section 105(B)(2) of the CrPC, which provides for assistance in securing the transfer of persons residing in contracting states. The provision states that if an application is made for the attendance of a person residing in a foreign country, the court must issue a summons or warrant in the form specified by the Central Government, to be served through the designated authority.

The court noted: “Since Section 105(B)(2) of the Code of Criminal Procedure starts with a non-obstante clause; so, it will override all other provisions of the Code of Criminal Procedure.”

Referring to the MLAT guidelines, the court observed that the investigating agency had failed to follow the required procedure before approaching the Chief Judicial Magistrate for issuing the summons. The court recorded that: “In this case, the Investigating Agency has not forwarded the draft request to IS-II Division of MHA (Central Authority) approved by the Director/State Government and hence, there was no occasion for the Central Authority being the IS-II Division, MHA to accord a concurrence.”

The court found that in the absence of prior concurrence from the MHA, the summons issued by the Chief Judicial Magistrate on July 14, 2022, and the subsequent non-bailable warrant issued on January 13, 2023, were legally unsustainable.

The High Court quashed both the summons and the non-bailable warrant, holding that they were issued in contravention of the statutory procedure. The court stated: “Accordingly, the same is quashed and set aside.”

It further directed that if the investigating agency wishes to proceed, it must follow the correct procedure under the MLAT and CrPC. The court stated that the investigating agency is at liberty to submit a request for concurrence to the IS-II Division, MHA, and upon obtaining approval, may approach the Chief Judicial Magistrate, Ranchi, for further legal action.

Additionally, the court directed the Registrar General to circulate the judgment to all judicial officers in Jharkhand and to the Director General of Police for dissemination among law enforcement officials.

The order concluded: “Registrar General is directed to circulate the judgment to all the Judicial Officers in the State of Jharkhand as well as to the Director General of Police, Government of Jharkhand for circulating it to all the police officers for information.”

Case Title: Mark Reidy v. The State of Jharkhand & Anr.

Case Number: W.P. (Cr.) No. 177 of 2023

Bench: Justice Anil Kumar Choudhary

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