Provides mechanism for temporary transfer of persons between India and foreign jurisdictions for investigation or evidence.
Strengthens international cooperation in securing presence of persons for criminal proceedings.
Introduction
Section 114 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) enables courts to facilitate the transfer of persons to or from foreign countries for purposes of investigation, inquiry, or trial. The provision allows Indian authorities to secure presence of individuals located abroad and also permits temporary transfer of persons from India to foreign jurisdictions under reciprocal arrangements.
It plays an essential role in ensuring availability of witnesses or accused persons in cross-border criminal proceedings.
Objective of the Provision
The objectives of Section 114 BNSS are
- to facilitate transfer of persons for investigation or trial across jurisdictions
- to strengthen mutual legal assistance between countries
- to enable examination of witnesses located abroad
- to support effective prosecution of transnational offences
The provision ensures continuity of criminal proceedings despite territorial limitations.
Meaning / Concept
Transfer of Persons
Transfer under this section refers to temporary movement of a person from one jurisdiction to another for purposes such as
- giving evidence
- assisting investigation
- participating in trial proceedings
The transfer is subject to safeguards and reciprocal arrangements between governments.
Reciprocal Legal Assistance Framework
Such transfers operate through agreements between India and foreign States notified by the Central Government. These arrangements ensure lawful custody, protection, and return of the transferred person.
Thus, the provision facilitates structured international cooperation.
Detailed Explanation of the Section
Section 114 BNSS provides that
- where presence of a person in a foreign country is required for investigation, inquiry, or trial in India
- a criminal court may request assistance through prescribed channels for transfer of that person to India
Similarly
- where a foreign authority requests transfer of a person located in India
- the Central Government may permit such transfer subject to conditions and safeguards
The provision ensures that
- transfer takes place only through official channels
- rights and safety of the transferred person are protected
- custody arrangements are properly regulated
- return of the person after completion of proceedings is ensured
Key features include
- applicability to witnesses or persons connected with proceedings
- requirement of Central Government involvement
- operation under reciprocal arrangements
- temporary nature of transfer
These safeguards ensure lawful and secure movement of persons across jurisdictions.
Procedure or Legal Framework
The procedural framework under Section 114 BNSS generally includes
- identification of necessity of presence of person abroad
- issuance of request by competent criminal court
- transmission through Central Government
- execution by foreign authority under reciprocal arrangement
- transfer of person to India for proceedings
- return of person after completion of purpose
Similar procedure applies where foreign jurisdictions request transfer from India.
Judicial Interpretation
Courts have recognized the importance of securing presence of persons located abroad through international cooperation mechanisms.
In State (CBI) v. Nalini (1999) 5 SCC 253, the Supreme Court emphasized coordination between jurisdictions in cases involving cross-border criminal elements.
In CBI v. V.C. Shukla 1998 Supp (3) SCC 410, the Court acknowledged the role of mutual legal assistance frameworks in securing evidence and participation of persons abroad.
In Ram Jethmalani v. Union of India (2011) 8 SCC 1, the Supreme Court highlighted the necessity of international cooperation in investigation of offences involving foreign elements.
These rulings support the procedural framework under Section 114 BNSS.
Importance of the Provision
Section 114 BNSS is important because
- it enables securing presence of persons located abroad
- it supports examination of foreign witnesses
- it strengthens investigation of transnational offences
- it promotes cooperation between jurisdictions
The provision plays a crucial role in modern cross-border criminal procedure.
Connection with Other Sections
Section 114 BNSS operates alongside related provisions governing international cooperation
- Section 110 BNSS – Reciprocal arrangements regarding processes
- Section 111 BNSS – Definitions
- Section 112 BNSS – Letter of request to competent authority outside India
- Section 113 BNSS – Letter of request from foreign country for investigation in India
Corresponding Provision under Old Law
Section 114 BNSS corresponds to Section 105B of the Code of Criminal Procedure, 1973.
Illustrative Example
During investigation of an international financial fraud case, an Indian court requires testimony of a key witness residing in a foreign country. A request is transmitted through the Central Government under reciprocal arrangements, and the witness is temporarily transferred to India to give evidence before the court. This procedure complies with Section 114 BNSS.
Conclusion
Section 114 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides a structured mechanism for securing transfer of persons between India and foreign jurisdictions for purposes of investigation, inquiry, or trial. By enabling lawful cross-border movement of individuals connected with criminal proceedings, the provision strengthens effectiveness of transnational criminal justice cooperation.
