Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M.C. No. 18/2012 & Crl.M.A. No.59/2012 (stay)
th
% Reserved on: 7 February , 2012
th
Decided on: 5 March, 2012
SWISS TIMING LTD. ..... Petitioner
Through: Mr. Amit Desai, Sr. Adv. with Mr.
Vijay Sondhi, Mr. Anirban
Bhattacharya, Ms. Sujatha
Balachander, Mr. Kapil Madan, Advs.
versus
CBI & ANR. ..... Respondents
Through: Mr. Dayan Krishnan, Mr. Gautam
Narayan, Spl. Counsels for CBI with
Mr. Nikhil Menon, Adv.
Mr. Neeraj Chaudhar, CGSC for UOI.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. The challenge in the present petition is to the orders of the learned
th th
Special Judge, CBI Court, Patiala House dated 15 December, 2011 and 19
December, 2011 whereby the learned Special Judge held that the purported
service of summons upon the Petitioner was valid in law and consequently
th
vide its order dated 19 December, 2011 observed that the Petitioner is
deliberately avoiding appearance before the Trial Court and thus legal
consequences would follow.
2. Learned counsel for the Petitioner contends that initially summons
th
were issued to the Indian Embassy at Berne, Switzerland which on 9 June,
2011 by its covering letter sent the same to the Petitioner by registered A.D.
Crl.M.C. 18/2012 Page 1 of 18
The Petitioner challenged this process and in this regard made
communications to the Swiss authorities, who in turn communicated the
th
same to the Indian Embassy on 7 July, 2011. It is contended that the order
passed by the learned Trial Court issuing summons, which were served to
the Petitioner by registered A.D. through Indian Embassy at Berne, were not
compliant to the International treaties or even the domestic law. The
th
Petitioner filed an application before the Trial Court on 14 July, 2011
rd
challenging the delivery of summons dated 23 May, 2011 placing on record
the factum of the purported and illegal service together with the letter dated
th
7 July, 2011 issued by Federal Office of Justice (in short „FOJ‟) to the
Indian Embassy at Berne, Switzerland. Thus, the learned Special Judge
th
upon hearing the Petitioner and the Respondent No.1 vide its order dated 5
August, 2011 was pleased to allow the application, issued fresh summons
th
returnable on 4 November, 2011 and directed effecting of service of fresh
summons in compliance with the provisions of MOU/ Exchange of letters
th
dated 20 February, 1989 between the two Countries.
3. On an application filed by the CBI seeking extension of time, the date
th
fixed for service of summons on the Petitioner was extended to 14
December, 2011. Thereafter a request made by the Indian Embassy at
Berne to the FOJ in Switzerland seeking legal assistance along with the fresh
rd
summons dated 3 September, 2011 in original issued by the learned Special
Judge and other translated copies was delivered at the office of the Petitioner
in Switzerland. The Petitioner thus consulted his Attorneys and on behalf
th
of the Petitioner a letter dated 9 December, 2011 was addressed to the FOJ,
Districts Attorney‟s office in Biel/ Bienne, Switzerland and the General
Crl.M.C. 18/2012 Page 2 of 18
Attorney of Canton of Berne raising issues challenging the validity of the
rd th
service of summons dated 3 September, 2011. Vide letter dated 13
December, 2011 the FOJ replied to the Swiss Attorneys of the Petitioner and
sought time to review the issues mentioned in the letter of the Petitioner. On
th rd
14 December, 2011 i.e. the date mentioned in the fresh summons dated 3
September, 2011 for the appearance of the Petitioner, counsel for the
Petitioner filed an application before the learned Special Judge placing on
record the factum of invalid/ improper and illegal service. Respondent No.1
also filed an application on the same date placing on record the
communication received from the Indian Embassy, Berne along with
information from the Swiss authorities.
4. The objections of the Petitioner to the said service and proof of service
are that in the eyes of law, no service has been effected on the Petitioner as
the letter of the Swiss authorities itself state that a notification has been
issued, without stating that the same has been delivered. Further, the service
of summons on accused persons between India and Switzerland is not
th
covered by the MOU/Exchange of letters dated 20 February, 1989. The
assistance agreed to between the two Countries by the said MOU/Exchange
of letters in criminal matters relates to the purpose of investigation alone.
Further, the request for assistance was not made to the competent authority
and the necessary translations as required under the said MOU/Exchange of
letters were missing.
5. Learned counsel for the Petitioner contends that there is no concept of
criminal trial in the absence of an accused. The purpose of issuing summons
to an accused is to compel his appearance before the Trial Court to face
Crl.M.C. 18/2012 Page 3 of 18
inquiry, plead to the charge, undergo trial and be available to face the
judgment. According to the learned counsel, Chapter VII of the Code of
Criminal Procedure provides for the procedure to compel the presence by
issue of summons and the same are unlike the summons in a civil
proceeding. Reliance is placed on Parambot Thayunni Balakrishna Menon
Vs. Govind Krisnan & Anr. AIR 1959 Madras 165 to contend that knowledge
of summons is not sufficient. The service of summons should be effected in
a criminal proceeding so as to compel the presence of the accused. Since the
summons issued in the criminal proceedings are to compel the presence
before the Trial Court, thus the same affects the right of life and liberty of an
accused and the same can be served only by following the procedure
established by law. Thus, as held in Parambot Thayunni (supra) summons
to compel the appearance have to be served personally in criminal matters.
It is contended that the provisions of Section 65 Cr.P.C. comes into
operation only after Sections 61 & 64 Cr.P.C. are duly and meticulously
complied with. Relying upon Balan Nair Vs. Bhavani Amma Valsalamma &
Ors. AIR 1987 KERALA 110 and Hemendra Nath Chowdhury Vs. Smt.
Archana Chowdhury AIR 1971 CALCUTTA 244 it is contended that service
by post or defective service is not in conformity to the procedure established
by law. For summons to compel appearance, provision has been made under
th
Section 105 Cr.P.C., which was amended with effect from 25 May, 1988.
Section 105 (1)(i) Cr.P.C. applies to the territories in India to which Cr.P.C.
does not apply and Section 105 (1)(ii) Cr.P.C. applies to other Countries
where arrangements have been made. Section 105 (2) Cr.P.C. relates to
summons received in India. The statutory scheme as envisaged should be
strictly complied with. In terms of Section 105(1)(ii) Cr.P.C. the summons
Crl.M.C. 18/2012 Page 4 of 18
to be served on a person to compel appearance in another country is a Court
to Court process. Admittedly, in case of a conflict between a treaty law and
the municipal law, the municipal law will prevail as held in Bhavesh Jayanti
Lakhani v. State of Maharashtra and Ors. (2009) 9 SCC 551 . The law is
clear that strict construction application is required in extradition or
summons process law, in view of the consequences that follow on non-
appearance pursuant to service of summons. In case, substantive rights of a
person are violated, the superior Court will entertain the petition to enforce
rights of the human-beings.
6. In the present case, the request from the Indian Embassy to the FOJ &
P is itself not translated and the summons have not gone to a Court in
Switzerland. Thus there is no necessary compliance of the mutual agreement
th
between the two Countries. The Exchange of letters dated 20 February,
1989 between India and Switzerland relates to investigation only. It does not
relate to compelling presence in a Court as an accused in India or
Switzerland. Further, Section 105 Cr.P.C. requires for issuance of a
notification, which notification has not been issued as yet. No document has
been received by the Swiss Court as the summons from the Indian Embassy
in Berne, Switzerland has been addressed to the FOJ, Switzerland. In view
of non-enclosing the translation and the fact that the summons were not
addressed to the proper authorities, the authorities as well as the Petitioners
were under the impression that it was a “Letter Rogatory”.
7. According to learned counsel for the Petitioner, the Federal Act on
International Mutual Assistance in Criminal Matters (IMAC) deals with
service of summons and according to Article 69 of IMAC sending of letters
Crl.M.C. 18/2012 Page 5 of 18
does not contemplate service of summons. The Petitioner can pray that he
should be given necessary protection in case he has to appear. The
procedures cannot be bye-passed. Relying upon Daya Singh Lahoria Vs.
Union of India & Ors. (2001) 4 SCC 516 it is contended that the rights of a
citizen cannot be taken away except in strict compliance of the law laid
down. The procedural law is to ensure that there is enough safety and rights
are guaranteed. Thus, the impugned orders of the learned Trial Court
declaring service to be complete and consequences to follow are liable to be
set aside.
8. Per contra learned counsel for the Respondent contends that the
present petition as framed is not maintainable as the Petitioner states that it is
not submitting itself to the jurisdiction of this Court and is appearing under
protest. Thus a person, who does not submit to the jurisdiction, can claim no
rd
relief from the Court. Learned counsel contends that the summons dated 3
September, 2011 have admittedly been served on the Petitioner and thus the
th
issues raised are academic in nature. The Exchange of letters dated 20
February, 1989, which constitutes a treaty between India and Switzerland
with respect to the mutual assistance in legal matters, contemplates service
of summons. The treaty provides for legal assistance in investigation as well
as in prosecution of criminal offences including offences involving fraud,
abuse of official powers to obtain unlawful profits etc. The procedure
rd
followed by the Trial Court in respect of serving the summons dated 3
September, 2011 is in accordance with the provisions of the treaty.
Therefore, this Hon‟ble Court will desist from substituting its view for the
view of the requested State.
Crl.M.C. 18/2012 Page 6 of 18
9. Learned counsel for CBI points out to the letter of learned counsel for
th
the Petitioner in Switzerland, who vide letter dated 9 December, 2011
stated to the Swiss authorities to refrain from delivering the proof of delivery
to the Indian authorities. According to the learned counsel, this conduct of
the Petitioner in asking not to deliver the proof of delivery to Indian
authorities is wholly unbecoming and the present petition is liable to be
dismissed on this short ground itself. In the application filed before the
learned Trial Court, the Petitioner has admitted that fresh summons have
been delivered in strict compliance of the Exchange of letters and thus now
in the present petition the Petitioner cannot claim that the Exchange of letters
is not applicable to summons for procuring the attendance and pertains only
at the stage of investigation. In the first application the Petitioner admitted
that the arrangement for procuring the attendance between two Countries
th
was Exchange of letters entered into on 20 February, 1989. The Exchange
of letters include an arrangement for dealing with the procedure during trial
and both the authorities i.e. Indian and Swiss accept that Exchange of letters
constitute a treaty.
10. According to the learned counsel, the Exchange of letters provides for
service of judicial documents which include summons for appearance. A
rd
perusal of the summons dated 3 September, 2011 establishes that the same
is not compulsive and only requires appearance on the date fixed before the
Trial Court. It is pertinent to note that even the IMAC expressly
contemplates and provides for rendering of assistance with regard to service
of summons (Article 63). Furthermore, the IMAC expressly contemplates
service of summons even through compulsive processes based on the
Crl.M.C. 18/2012 Page 7 of 18
principle of double criminality. The request for assistance sought in respect
of service of the summons was duly acceded to and executed by the Swiss
nd
authorities as communicated vide their note verbale dated 22 November,
2011. It is therefore clear that the request was in accordance with the
provisions of the treaty as well as the IMAC. Had this not been the position,
the request would not have been executed as was done in the past vide letter
th
dated 7 July, 2011. The contention that the service of summons is vitiated
st
owing to the fact that the request for assistance dated 31 October, 2011 was
in English and not translated is wholly without merit. It is submitted that
this request was meant only for the Swiss authorities and not for the accused.
No prejudice whatsoever has been caused to the Petitioner in this respect.
11. Learned counsel for the CBI further submits that Section 105 Cr.P.C.
does not provide for a Court to Court mandatory procedure as it is inter-
countries and one country cannot control the procedure of another. Section
105 Cr.P.C. comprises of two parts; where in the first portion the word
„shall‟ is used and is thus mandatory and in the second portion the word
„may‟ is used and is thus directory in nature. The issue of one provision
containing both mandatory and directory provisions came up for
consideration before the Hon‟ble Supreme Court in Jamatraj Kevalji Govani
Vs. State of Maharasthra AIR 1968 SC 178 wherein their Lordships
interpreted that the use of the word „may‟ in the first part and „shall‟ in the
second part firmly establishes this difference. It is stated that any other
interpretation will lead to absurdity. Further non-issuance of Notification
under Section 105 Cr.P.C. is irrelevant as neither the Parliament can impose
its will on any other sovereign jurisdiction nor this Country can change the
Crl.M.C. 18/2012 Page 8 of 18
designated authority in other Country. It is thus contended that the
impugned judgment of the learned Trial Court is just and proper and every
care has been taken to see that the requirements of the treaty and the law are
satisfied while serving summons to the Petitioner.
12. I have heard learned counsel for the parties. The facts giving rise to
rd
filing of the present petition by the Petitioner are that on 23 May, 2011 the
learned Special Judge was pleased to take cognizance on the charge-sheet
filed by the CBI in RC No.DAI-2010-A-0044 alleging commission of
offences under Section 120-B read with 420 IPC and Section 13(2) read with
Section 13(1)(d) of the Prevention of Corruption Act, 1988 arraying the
rd
Petitioner as accused No.11. The learned Special Judge vide order dated 23
May, 2011 directed that summons be issued to the company through its CEO
by diplomatic channels through Ministry of External Affairs, Interpol
th th
returnable on 14 July, 2011. On 9 June, 2011 a letter was sent by the
Embassy of India, Berne to the Petitioner informing it about the next date of
hearing and enclosing summons in original. In response to the above-said
request of the Embassy of India on a letter written by the Petitioner to the
th
FOJ, the FOJ, Switzerland vide letter dated 7 July, 2011 informed that the
requested assistance was being denied owing to the fact that in terms of the
Exchange of letters the summons to a firm in Switzerland, German speaking
canton were required to be translated into German. It was further stated that
the summons were required to be received more than 30 days before the date
of hearing fixed and the summons should be enclosed with the summary of
the case. Pursuant to service of summons, an application was filed on behalf
of the Petitioner before the learned Special Judge though admitting the
Crl.M.C. 18/2012 Page 9 of 18
service of summons, however stating that the said service of summons was
not in compliance with the Exchange of letters. The Learned Special Judge
thereafter issued fresh summons to the Petitioner, as per the Exchange of
rd
letters, vide order dated 3 September, 2011.
13. The said summons were forwarded by the Embassy of India at Berne
to the FOJ in Switzerland which further informed the Indian Embassy on
nd
22 November, 2011 that the summons had been issued. The Embassy of
India sent an E-mail to the Respondent herein informing that the Swiss
authorities have responded to the request for service of summons in the form
nd th
of a note verbal dated 22 November, 2011. On 14 December, 2011 the
Petitioner filed two applications before the learned Special Judge though
rd
admitting delivery of summons dated 3 September, 2011, however
disputing the validity of service of summons. It was stated that the filing of
the applications by the Petitioner ought not to be treated as submitting to the
jurisdiction of the learned Special Court or admitting that the service of
summons was legal and valid in accordance with law. On the said
applications of the Petitioner, the learned Special Judge vide impugned order
th
dated 15 December, 2011 held that there was no ground to allow the plea of
the Petitioner and to hold that it has not been legally served in this case. The
learned Special Judge further held that the Petitioner has been duly served
and as it appeared that the Petitioner was intentionally avoiding appearance
before the Court only with a view to further delay the trial, thus legal
consequences would follow.
14. The issues involved in the present petition are the interpretation of
th
Section 105 Cr.P.C., whether the Exchange of letters dated 20 February,
Crl.M.C. 18/2012 Page 10 of 18
1989 between India and Switzerland constitutes a binding treaty, whether the
same relates to the process of enquiry and trial to compel presence of an
accused before the Court and whether a notification under Section 105
Cr.P.C. is mandatory in nature. The relevant portion of Section 105 Cr.P.C.
reads as under:
“105. Reciprocal arrangements regarding processes .
(1) Where a court in the territories to which this Code extends
(hereafter in this section referred to as the said territories desires
that-
(i) Within the local jurisdiction of a court in any State or area in
India outside the said territories, it may send such summons or
warrant in duplicate by post or otherwise, to the presiding
officer of that court to be served or executed; and where any
summons referred to in clause (a) or clause (c) has been so
served, the provisions of section 68 shall apply in relation to
such summons as if the presiding officer of the court to whom it
is sent were a Magistrate in the said territories;
(ii) In any country of place outside India in respect of which
arrangements have been made by the Central Government with
the Government of such country or place for service or
execution of summons or warrant in relation to criminal matters
(hereafter in this section referred to as the contracting State), it
may send such summons or warrant in duplicate in such form,
directed to such court, Judge or Magistrate, and sent to such
authority for transmission, as the Central Government may, by
notification, specify in this behalf.”
15. A perusal of Section 105 (1) (ii) Cr.P.C. provides that in case of
summons to an accused issued by a Court in India shall be served or
executed at any place in any Country or place outside India in respect of
which arrangements have been made by the Central Government with the
Crl.M.C. 18/2012 Page 11 of 18
Government of such Country or place for service or execution of summons
or warrants in relation to the criminal matters, may be sent in duplicate in
such forms, directed to such Court, Judge or Magistrate and sent to such
authority for transmission, as the Central Government may by notification
specify in this behalf. Thus, though the serving or execution of the summons
at a place or Country is mandatory, however sending of such summons or
warrants to such Court, Judge or Magistrate and to such authority for
transmission as may be notified is directory in nature. The reason for the
second portion of clause (ii) of Section 105 (1) being directory in nature is
that the Indian Government cannot determine the authority or the Court,
Judge or Magistrate of another Sovereign State. To that extent it has to
follow the authority specified by the contracting State. A perusal of the
th
Exchange of letters dated 20 February, 1989, which the Petitioner initially
admitted to be the treaty between India and Switzerland shows that it relates
not only to mutual assistance with regard to matters pending investigation
th
but also pending trial. The Exchange of letters dated 20 February, 1989
between India and Switzerland is reproduced as under:
“LE CHEF 3003 Berne, 20 February 1989
DEPARTMENT FEDERAL
AAFAIRES ENTRANGERES
Excellency,
th
I have the honour to acknowledge receipt of your letter 20
February, 1989, which read as follows:
“Your Excellency,
Crl.M.C. 18/2012 Page 12 of 18
I have the honour to refer to the exchange of views between the
delegations of India and Switzerland on the question of
providing mutual assistance in criminal matters, and on the
basis of the understanding reached between the two delegations,
the Government of India proposes to the Government of
Switzerland that the authorities of both countries competent to
investigate offences shall provide to each other, on the basis of
reciprocity and in accordance with their national law, the widest
measure of assistance in criminal matters as follows:
1. Cooperation between law enforcement authorities may
include assistance in locating witnesses, obtaining statements
and testimony of witnesses, production and authentication of
judicial or business records, service of judicial or administrative
documents and restitution of objects or valuables originating
from the offences for the purpose of returning them to the
entitled persons. Further within the limits of the law of the
requested State, information will also be provided on the assets
owned or possessed by persons who are the subjects of the
investigation in the requesting country.
2. Taking of evidence and production of documents by the
use of compulsory measures for the purpose of criminal
proceedings in India or Switzerland as far as the facts described
in the request would also be an offence punishable under the
laws of both countries. For this purpose, India and Switzerland
regard the expression “criminal proceedings” as including trial
of a person for an offence or a proceeding to determine whether
to place a person who is accused of an offence on trial for that
offence. Under Indian law the competent authority to ask for
assistance abroad is the Court, tribunal, judge or magistrate
exercising jurisdiction. Under Swiss law the competent
authority to ask for assistance abroad is any examining
magistrate, notwithstanding the denomination of
„Bezirksanwait, Untersuchurfgsrichter, judge d‟instruction,
Verhorrichter” a. s. o. and all judicial authorities.
Crl.M.C. 18/2012 Page 13 of 18
3. Taking statements of persons without the use of
compulsory measures.
4. Provision of publicly available documents and records
being documents and records that are available to the public as
being part of a public register or that are otherwise available to
the public for purchase.
5. Service of documents which does not involve exercise of
any measure to compel any person to comply with any
requirement set out in those documents.
6. Investigation of crime by Police or other law
enforcement agencies not involving the exercise of any measure
to compel any person to answer questions or to provide
information.
7. There may be other ways in which assistance could be
rendered in criminal matters and India and Switzerland would
be prepared to consider whether other forms of assistance could
be provided in particular cases upon request.
It is understood that assistance shall be granted, in accordance
with the law of the requested state, in the investigation or
prosecution of criminal offences, including murder, inflicting
serious bodily harm, theft, fraud, embezzlement, abuse of
official powers or institution to obtain unlawful profits,
extortion, blackmail, forgery, counterfeiting of currency,
fabrication of false evidence, bribery, knowingly and willingly
making fraudulent statements or representations in matters
which are within the jurisdiction of any department, agency, or
authority of the requesting state, as well as dealing in narcotic
drugs and psychotropic substances.
16. Thus the expression “criminal proceedings” in the Exchange of letters
includes trial of a person for an offence or a proceeding to determine whether
to place a person who is accused of an offence on trial for that offence. The
Crl.M.C. 18/2012 Page 14 of 18
agreement clearly stipulates that the assistance shall be granted in
accordance with law of the requested State in the investigation or
prosecution of criminal offence including embezzlement, abuse of official
powers or institution to obtain unlawful profits bribery, etc. The agreement
further provides that the request of mutual assistance and their enclosures
shall be transmitted through diplomatic channels. Thus, the Exchange of
th
letters dated 20 February, 1989 is a binding treaty between India and
Switzerland, even applicable for service of summons to compel the presence
of a person who is accused of an offence for trial and for determining
whether to place such person on trial.
17. In the present case, there is no dispute that the request was made
through diplomatic channels and on being received by the Swiss authorities,
it was forwarded to FOJ. It may be further noted that FOJ at Berne issued a
th
communication to the Embassy of India at Berne, Switzerland on 7 July,
2011 stating that:
“Service of documents is a formal act of jurisdiction and thus
an official act. In accordance with the Exchange of letters the
service of summonses has to be communicated by diplomatic
channels. It means that the submission of such requests for
service must be instigated by the Federal Office of Justice. The
Exchange of letters also stipulates that Switzerland demands
that all requests for mutual assistance and annexes/ service of
documents be accompanied by a translation into one of the
official Swiss languages (German, French or Italian) and vice
versa in Hindi or English. The requesting authority may further
note that English is not an official Swiss language. As the
request concerns a firm in a Swiss German speaking canton, the
documents have to be provided together with a German
translation.
Crl.M.C. 18/2012 Page 15 of 18
The service of a summons to persons living in Switzerland in
order to appear as defendants or witnesses in foreign criminal
proceedings is a special type of service. Switzerland requires
that summonses for defendants reach the Federal Office of
Justice at least thirty days before the date set for their
appearance. The Embassy is therefore asked to inform the
requesting Indian authority that the documents to be served
have to be received by our Office more than 30 days before the
hearing. Persons who have been summoned may not suffer
legal or material prejudice in either the requesting or the
requested state if they do not comply with the summons.
Consequently, anyone accepting a summons to appear before a
foreign authority is under no obligation to appear abroad.
Summonses containing threats of compulsion will not be
served. If the summons is unsuccessful, it is still possible via
legal assistance channels to request that the person concerned
be interviewed. Travel and accommodation expenses, as well
as the witness‟s allowance, must be borne by the requesting
state.”
18. Thus the contention of the learned counsel for the Petitioner that it is a
Court to Court procedure as envisaged under Section 105 Cr.P.C. and the
FOJ at Berne was not competent authority to serve summons on the
Petitioner is misconceived. The learned Special Court issued the summons
rd
as per the procedure laid down, vide order dated 3 September, 2011 in
conformity with the letter sent by the FOJ.
19. It is an admitted position that the summons have been served on the
th
Petitioner which fact the Petitioner has admitted in its application dated 14
December, 2011 filed before the learned Special Court wherein in para 7 it
has been clearly stated that the applicant was delivered the summons dated
rd
3 September, 2011 issued by the Special Court and other documents. This
fact is further fortified in a letter address by the lawyer of the Petitioner to
Crl.M.C. 18/2012 Page 16 of 18
th
Swiss authorities dated 9 December, 2011 wherein it has been noted that
the proof of delivery to the Indian authorities should be refrained from.
Though on the receipt of the first summons, which was sent by the registered
post, the contention of the Petitioner before the learned Special Judge was
that the service of summons is regulated by the Exchange of letters, on a
service made to the Petitioner in terms of the Exchange of letters, the
endeavour of the Petitioner is to wriggle out of the same and it is now
canvassed that service of summons is not in accordance with law as the
service of summons in criminal matters are not regulated by the Exchange of
letters.
20. The Petitioner before this Court has strenuously relied upon Federal
Act of International Mutual Assistance in Criminal matters (in short IMAC)
th
dated 20 March, 1981, which contemplating the provisions governing the
service of summons. According to the learned counsel, Article 68 of the
IMAC relates to service of documents and not service of summons which is
dealt in Article 69 and thus, Article 68 corresponds to Clause 5 of the
Exchange of letters. According to the Petitioner, the parameters of Article
69 which deal with service of summons are excluded in the Exchange of
letters and thus, there is no binding treaty between Switzerland and India
which deals with service of summons to compel presence. It may be noted
that IMAC provides that in case private international agreement do not
provide otherwise, this Act shall govern all procedures for International
Cooperation in criminal matters, especially in extradition of person who are
subject of criminal prosecution or convicted and assistance aimed at
supporting criminal proceedings abroad. As per Article 17 read with Article
Crl.M.C. 18/2012 Page 17 of 18
79 (a) of the IMAC, the Federal office of Justice of the Federal Department
of Justice and Police, Switzerland is the designated authority, which is
authorized to interact with foreign authorities in the sphere of judicial
assistance. Thus, the authority being nominated by the Switzerland will
prevail for communication of judicial documents in Switzerland. The use of
the word Court, Judge or Magistrate under Section 105 Cr.P.C. not being
mandatory would not vitiate the service of summons through the designated
agency competent to serve the summons as per Swiss Federal laws and
would be a valid service of summons.
21. The issuance of notification as provided for under Section 105 Cr.P.C.
is not a mandatory procedure. The word used in Section 105(1)(ii) is „may‟.
The non-issuance of the Notification will not render nugatory the binding
nature of the Exchange of letters between the two Countries.
22. Thus, I find no force in the contentions raised by the learned counsel
for the Petitioner. The Petition and application are dismissed.
(MUKTA GUPTA)
JUDGE
MARCH 05, 2012
‘ga’
Crl.M.C. 18/2012 Page 18 of 18