Introduction: Letter Rogatory
When a crime is committed the State steps into the shoes of the victim and conducts prosecution. There are certain crimes like economic offences, money laundering, tax evasion or undeclared black money in foreign jurisdictions in which the victim is the State itself. To track these offences the agencies like CBI, Enforcement Directorate, Income Tax Department, Serious Fraud Investigation office etc continue surveillance, build evidence trail and intelligence to track the trail of evidence, and collect & preserve evidence to prosecute the offenders. When the investigation is to be conducted within the territory of India the investigation agencies have ample power to search, seize summon records or examine witnesses but the scenario changes when the investigation needs to be conducted in a foreign territory.
To address these kinds of scenarios the Republic of India has entered into various Mutual Legal Assistance Treaty, Multilateral or bilateral conventions with other countries wherein reciprocal arrangements have been offered to other countries for assisting in the investigation of crimes. A similar provision is also incorporated in the Code of Criminal Procedure, 1973.
Section 166A Code of Criminal Procedure, 1973
S. 166A: Letter of request to the competent authority for investigation in Country or place outside India– (1) Notwithstanding anything contained in this Code, if, in the course of an investigation into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that evidence may be available in a country or place outside India, any Criminal Court may issue a letter of request to a court or an authority in that country or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or the authenticated copies thereof or the thing so collected to the Court issuing such letter.
Let us understand this by an illustration. Income Tax department gets an intelligence input regarding the undeclared black money of Mr. X invested in tax heavens in a foreign country. After doing the preliminary enquiry the department needs to collect further concrete documentary evidence to prosecute the offences for relevant offences. Therefore, for the collection of evidence in this case the department needs to conduct an investigation in foreign territory. The authorities may not enjoy unfettered powers to investigate in foreign territory, as it may get in conflict with the sovereignty of that country. In that scenario, the assistance of that country is sought by sending ‘Letter Rotatories or letter of Request.
The letter Rogatory is issued either under the provisions of Mutual Legal Assistance Treaty (MLAT) or Bilateral or Multilateral convention or in case no agreement is there, on the basis of assurance of reciprocity. The Letter Rogatory can be issued by any Criminal Court as per Section 166A Crpc. The concerned department or the investigation agency needs to move an application before the Court seeking directions in this regard. The concerned department/investigating agency needs to obtain permission from the Ministry of Home affairs before moving any such application before the Court. The Court if satisfied with the application may issue Letter Rogatory to the competent authority in foreign territory seeking assistance. In the letter Rogatory, the request for freezing of bank accounts, movable/immovable properties etc. may also be made. In case the investigating team needs to visit the foreign country, a request in this regard may be also made. The International Police Cooperation Cell (IPCC), CBI, New Delhi is the designated agency for routing the requests for Letter Rogatory to the foreign countries, INTERPOL headquarters and the Missions abroad.
The Ministry of Home Affairs, Internal Security Division had issued a comprehensive Guidelines dated 31.12.2007 delineating the detailed procedure in the respect of the issuance of Letter Rogatory which also be referred to for further clarity on the subject.
