Cross Border Crime; How to penalize a foreigner abroad through Indian Court ?

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I am sure, you have no clue about Sanjay Kumar, from Hyderabad and Muddamalle Amit Livingston, from US. I too have not heard about either of them.

We all know about, David Coleman Headley and Tahawwur Rana, suspects in 2008 Mumbai attacks, but the list of such fugitives hiding in US is quite long.

Out of 121 people, who fled India, after committing crimes, a majority of them are hiding in US. Nearly, about 40 in numbers, US is on the top of chart of Countries, where Indian fugitives are hiding.

The other preferred destinations of such criminals are, UK, Canada and UAE, despite India enjoying a good relation and valid extradition treaty with all the four, including US.

Before, I cross examine this heavenly abode, let me bring in Sanjay Kumar and Muddamalle Amit Livingston, who caught our attention in the beginning.

Muddamalle Amit Livingston, is one of America’s most wanted criminals, who fled US, after killing Hernandez,in 2005. Living under the false identity of 'Sanjay Kumar', Livingston worked as a medical transcriptionist in India, for over 7 years till he was not arrested by local police.

The two democratic governments with strong faith in law and in their respective constitution are too well aware of this growing menace and off late has taken various legal steps to curb it. The most important measures include, Mutual Legal Assistance Treaty in Criminal Matters ("MLAT").

As per the MLAT, India and USA 'shall provide the widest measure of mutual assistance to each other, in accordance with the provisions of this Treaty, in connection with the investigation, prosecution, prevention and suppression of offences and in proceedings related to criminal matters.'

The benefits of the MLAT have become more apparent over the years. Previously if any domestic company was found to have acted illegally in its branches or offices abroad, it would be difficult for the government to seek documents and papers relevant to the case from foreign jurisdictions. Now with the MLAT, it is easier to get this information and even extradite criminals who have fled the country. In recent years, India has made use of the MLAT investigating scams involving fugitives such as Vijay Mallya and Nirav Modi. In fact, the MLAT can be crucial in obtaining useful intel for a country being targeted by terrorists stemming from another.

Thus, the MLAT aims to curb criminal offences using the joint forces of two sovereign countries that normally would have no agreement to cooperate without such a treaty being in place.

Another key measure is US Homeland Security Presidential Directive-6 (HSPD-6). This allows India to access USA's database of 'unclassified biographic information of known and suspected terrorists' on a reciprocal basis and exchange information with the Terrorist Screening Centre (TSC), USA.

Indian Laws concerning foreign jurisdictions
In addition to above two new treaties, India deals with all civil and commercial matters involving other jurisdictions through its ministry of Law and Justice. The criminal matters are dealt by the ministry of Home Affairs.

The CPC acknowledges the power of foreign judgments and foreign courts in India. There are provisions in the code that deal with execution of decrees passed by courts in reciprocal territories along with procedure to be followed to get the same enforced in India. Further, the code also explains what presumptions exist with respect to foreign judgments and the test of its conclusiveness in the country.

As on date India has 11 reciprocal territories, with the United Arab Emirates being added to the list in January, 2020. These reciprocal arrangements between respective countries governs, service of summons, warrants and judicial processes.

In 2012, the Metropolitan Magistrate, Delhi issued 11 summonses to international websites including Facebook and Google (at their USA headquarters) making allegations of 'promoting class enmity and undermining national integrity'.

In Nimesh Harkisandas Topiwala vs Deepa Dalpatram Topiwala16 the division bench of the Bombay High Court by its order dated 5th May, 2017 discussed how an order passed by an Indian court may be enforced against a party residing in the USA.

The Bombay High Court held that since India and the USA had a MLAT in force and that the steps as set out in the MLAT must be followed to execute and enforce an Indian Court order in a foreign jurisdiction. Further, since it was a civil matter the Department of Law and Justice of the Government of India was directed to take the matter up with the Central Authority, USA. We also learn from this case that the MLAT despite having been signed for mutual assistance in criminal matters, its procedures are also applied in civil and commercial matters.

In the matter of Union of India v. Mubarak, the Hon'ble Supreme Court of India relies on the report of the Public Prosecutor concerning the criminal investigation of the accused in the matter. The concerned paragraph of the report forming part of the aforesaid judgment is as follows:

'12. It is further submitted that the NIA is conducting investigation on the social media and email communication used by the Accused and associates and the process of sending requests to the United States of America (USA) under Mutual Legal Assistance Treaty (MLAT) between Republic of India and USA to get the details of social media accounts and communications between Accused and their associates in India and abroad is under progress.'

US laws concerning foreign jurisdictions
With respect to assisting foreign and international tribunals, USA has a federal statute in that regard viz. Title 28 of the United States Code, Part V, Chapter 117. Under this statute section 1782 states that a party to a legal proceeding outside USA is allowed to apply to an American court to obtain evidence in a non-USA proceeding.

For long the use of §1728 has been ambiguous as US courts were not fully clear of its scope. However, this changed with the United States Supreme Court decision of Intel Corp. v. Advanced Micro Devices. The Supreme Court in Intel Corp. dealt with antitrust claims filed by Advanced Micro Devices against Intel before the Directorate-General for Competition of the Commission of the European Communities.

It held that as per §1782 (a)'s language, the provision authorises but does not require a federal district court to assist a complainant. Also, when an application under §1782 (a) is filed the court is free to consider the nature of the foreign tribunal, the character by which proceedings are ongoing abroad, the cooperation of the foreign government or authority towards judicial assistance. It must be noted that the matter was then remanded to the lower court and AMD ultimately lost the case against Intel. However, the Supreme Court's observations in the matter shed light on USA's laws towards foreign co-operation.

In re: Application of the Republic of Kazakhstan the United States District Court of the Southern District Court of New York discussed whether the meaning of 'interested person' as set out in section 1782 would include a sovereign state, the case was held in the affirmative. The Court stated that ”. section 1782's predecessor statutes explicitly permitted foreign states to request judicial assistance and that the 1964 amendment that added the "interested person" provision to section 1782 was intended to broaden rather than narrow "the scope of those who could seek judicial assistance."

The United States District Court for Eastern District of Pennsylvania in the matter between United States v. Fleet Mgmt. Ltd. did briefly discuss the MLAT between USA and India. The case dealt with illegal discharge of oil by a sea vessel and witness warrants were issued to sailors who were Indian citizens. The District Court considered applying the processes under the MLAT to secure the Indian witnesses for trial.

As seen from the above, USA has taken measures in its judicial system to co-operate with foreign governments. Especially with many of the world's largest companies being based in USA itself, the country understands the far-reaching consequences of actions taken by such corporates for their businesses.

Hague Convention
India and USA are also signatories to the Hague Convention, which provides that in civil and commercial matters a judicial authority of a signatory country may request the competent authority of another signatory country by a letter of request to obtain any evidence.

The Convention turns out to be useful for those signatories that have not signed MLATs between each other.
The two have also signed the 'Agreement for the Surrender of Persons to International Tribunals' dated 26th December, 2002 and the 'India-US Counter Terrorism Initiative' dated 23rd July, 2010 being other treaties related to legal matters.

The correct application of the MLAT and other legal measures will go a long way in curbing the growing menace of fugitives taking shelter in heavenly abode of US or India.

To know more on this or any other matter WhatsApp 9818320572

Dr. Ajay Kummar Pandey,
Advocate Supreme Court of India,
4C Supreme Law International, Delhi, Mumbai, Dubai
Email: editor.kumar@gmail.com

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WhatsApp पर तीन रेड टिक? नहीं, सरकार आपके मैसेज, कॉल रिकॉर्ड नहीं कर रही है

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Are you next victim of Spy Groom war?

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काम की बात: क्या नॉमिनी ही होता है उत्तराधिकारी? जानिए क्या कहता है नियम और क्या हैं इनके अधिकार

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My father passed away without a will. Who has legal rights to his property?

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Get paid without insurance for Covid death

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News You Can Use.

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कोरोना में पैरेंट्स को राहत:सुप्रीम कोर्ट ने कहा- स्कूल चलाने का खर्च कम हुआ, इसलिए ऑनलाइन क्लासेस की फीस घटानी चाहिए

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Big Day: Big News

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रेमडेसिविर की कालाबाजारी में प्रख्यात न्यूरो सर्जन सहित 3 गिरफ्तार, इंजेक्शन की बड़ी खेप और 36 लाख रुपये बरामद

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Are you ready?

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Can winking and Blowing kisses land you in Jail ?

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Setback for Britannia Industries as Delhi HC junks trademark infringement plea against ITC Limited

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नोएडा, गाजियाबाद से दिल्ली में लग रहे जाम पर सुप्रीम कोर्ट हुआ सख्त, जारी किया नोटिस

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UNHOLY HOLI, Will Holi land you in Jail ?

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क्रिप्टोकरेंसी को सरकार ने किया स्वीकार! कंपनियों को देना होगा हर लेन-देन का हिसाब

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Reservation more than 50 per cent is need of hour: Maharashtra

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आईटीआर में खामी रह जाने पर इनकम टैक्स 7 तरह के नोटिस जारी करता है, जानिए इनका मतलब

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Person Who Has Not Drawn The Cheque Cannot Be Prosecuted U/s 138 NI Act Even In Case Of Joint Liability: Supreme Court

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Didda Copyright Row: दिद्दा कॉपीराइट विवाद पर मुश्किल में कंगना, कोर्ट के आदेश पर एक और FIR दर्ज

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फैसला: सुप्रीम कोर्ट ने किराएदार पर लगाया एक लाख का जुर्माना, अद्भुत मामला दिया करार

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चेतावनी! 15000 रुपए का कटेगा चालान और 2 साल की होगी जेल, अगर गाड़ी में किया यह काम

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Oyo lost arbitral battle

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पत्नी कोई गुलाम या संपत्ति नहीं, पति के साथ रहने के लिए मजबूर नहीं किया जा सकता- सुप्रीम कोर्ट

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किसी को शादी के लिए झूठा वादा नहीं करना चाहिए, चाहे पुरुष हो या महिला: सुप्रीम कोर्ट

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How to jump the corporate ladder by selling Gossip at 15 Crore ?

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सुप्रीम कोर्ट की बड़ी टिप्पणी: जीवनसाथी की प्रतिष्ठा को ठेस पहुंचाना मानसिक क्रूरता के समान

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सुप्रीम कोर्ट की बड़ी टिप्पणी: जीवनसाथी की प्रतिष्ठा को ठेस पहुंचाना मानसिक क्रूरता के समान

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पिता की संपत्ति में मिलता है बराबरी का हिस्‍सा, हर बहू-बेटी को पता होने चाहिए अपने ये अधिकार

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उत्तराधिकार पर सुप्रीम कोर्ट का बड़ा फैसला, महिला का मायका पक्ष भी परिवार का हिस्सा

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Act beyond Act: CSR

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स्किन से स्किन टच के बिना सेक्सुअल असॉल्ट का मामला नहीं... हाई कोर्ट के इस फैसले के खिलाफ महिला आयोग सुप्रीम कोर्ट पहुंची

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Decriminalisation of the Limited Liability Partnership Act

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Budget 2021: Key changes in GST to help small and medium- sized businesses

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1 to 5 crore loan without colletral made easy: Budget 2021

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Is GST is becoming a headache for you.

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Moment of rare pride

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बिहार पुलिस के सर्कुल ने बिहार प्रेस बिल की याद दिला दी है

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Italy court orders Facebook to pay $5 million in damages for copying app

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Foreigner To Deposit Cash Amount For Bail

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How legal is COVID-19 vaccine ?

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WhatsApp's private chat leaked on Google, anyone can read your personal talks

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Do you know 18 must Laws for every Indian?

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Why should I trust you or your business?

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Do you need clearance from your RWA to employ your maid?

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क्या तलाकशुदा पत्नी घरेलू हिंसा अधिनियम के तहत निवास के अधिकार का दावा कर सकती है?

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SC grants Woman's Right to Residence Under the Domestic Violence Act

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Corporate War: Cookie King who fought with TATA and Ambani

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HINDU MARRIAGE ACT : DIVORCE GRANTED TO HUSBAND ON THE GROUND OF MENTAL CRUELTY CAUSED BY WIFE

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Facebook love or chat can land you in Jail

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Financer can take way Car in case of payment default

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18000 Crore Company, 8000 Crore personal worth, wife & sons living in street

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Do you love your wife and children?

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When the second marriage of a married woman / man becomes an offense under section 494

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Is Rhea Chakraborty guilty?

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Daughters have equal right in ancestral property

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Is second wife entitled for share in Property?

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How to save your hard-earned wealth from legal hassles?

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What will happen to property of Hindu after his death?

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Are you safe at home?

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Can sex with your own wife land you in jail ?

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Can you land in jail for sharing Obscene Message online in private?

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Legally speaking who discovered America?

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47 years old legal dispute finally decided

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Are you a victim of Covid-19 Goonda Raj? Part-2

Cross Border Crime, Indian Court, Divorce Lawyer, Advocate for Divorce, Kerala High Court, Family Court, Divorce and Domestic Lawyers, Property, Land, Real Estate Lawyers, Court Marriage and Matrimonial Lawyers, Civil Lawyers, Criminal Lawyers, Corporate and Company Lawyers, High Court Lawyers, Consumer Protection and Dispute Lawyers, Industrial and Labour Lawyers, Charitable Trust, Society and NGO Registration, Legal Consultants, Cheque Bounce Case Lawyers, Ajay Kummar
Are you a victim of Covid-19 Goonda Raj ?

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Can RWA stop your maid from coming to your home?

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Can you escape Contractual Obligation under Covid-19?

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Coronavirus: Is vaccine found for India Inc?

Cross Border Crime, Indian Court, Divorce Lawyer, Advocate for Divorce, Kerala High Court, Family Court, Divorce and Domestic Lawyers, Property, Land, Real Estate Lawyers, Court Marriage and Matrimonial Lawyers, Civil Lawyers, Criminal Lawyers, Corporate and Company Lawyers, High Court Lawyers, Consumer Protection and Dispute Lawyers, Industrial and Labour Lawyers, Charitable Trust, Society and NGO Registration, Legal Consultants, Cheque Bounce Case Lawyers, Ajay Kummar
Is Wife Entitled to Maintenance Even If She Runs A Business & Earns Income?

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Who will pay rent for lockdown period?

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Legal consequences of being whatsapp group admin

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