I. Introduction
The operation of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, is a landmark shift in India’s criminal justice system. It replaces the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC), bringing new provisions to face the challenges of modern times in criminal law. One of these provisions is Section 86, which deals with identification and attachment of property of proclaimed offenders. It authorizes Indian courts to invoke international cooperation for recovery of assets so that persons cannot escape justice by keeping assets hidden overseas.
II. Legal Framework of Section 86
A. Provisions of Section 86
Section 86 of the BNSS provides that a court can, on receipt of a written application from a police officer not below the rank of Superintendent of Police or Commissioner of Police, initiate the procedure for seeking relief from a court or authority within a contracting state. The intention is to identify, freeze, and confiscate property of a proclaimed person as specified in the procedures of Chapter VIII of the BNSS.
B. Reference to Chapter VIII
Chapter VIII of the BNSS sets out the procedural mechanism for identification and attachment of property. It ensures that the procedure follows international agreements and treaties, promoting cooperation between India and other contracting states.
III. Procedural Mechanism
A. Initiation by Police
The procedure starts when a police officer of the concerned rank spots a declared offender having assets in a foreign nation. The officer applies for the written order of the court, specifying the properties in concern and the requirement of assistance from abroad.
B. Court’s Role
Once the request is received, the court evaluates the information presented and decides if it will invoke proceedings under Section 86. If the court finds it reasonable, the court will send a request to the concerned authority within the contracting state, requesting assistance in tracing and freezing the proclaimed offender’s property.
C. International Cooperation
The contracting country, on receiving the request, applies its domestic legal process to trace and seize the property. Such cooperation is predicated upon mutual legal assistance agreements (MLATs) or other bilateral arrangements between India and the contracting country.
IV. Practical Implications
A. Asset Recovery
Section 86 is central to asset recovery, particularly in cases where self-styled offenders have left the country and hidden their assets abroad. By promoting global cooperation, it makes it impossible for such offenders to enjoy their proceeds of crime.
B. Case Study Example
Consider a scenario where an individual involved in a financial fraud case flees to a foreign country and holds substantial assets there. Under Section 86, Indian authorities can collaborate with the foreign jurisdiction to identify and attach these assets, ensuring that the offender does not evade justice.
C. Challenges and Limitations
Although Section 86 offers a strong platform for cooperation with other jurisdictions, its implementation could be hindered by variations in legal frameworks, relations between governments, and receptiveness of foreign governments to assist in the recovery of assets. These circumstances can hamper the effectiveness and speed of the asset recovery process.
V. Comparative Analysis
A. Comparison with Previous Laws
Before the BNSS, provisions for attachment of property were scarce and centred on assets in Indian jurisdiction only. Section 86 makes a wider extension possible so that assets in foreign countries can be located and attached, increasing the scope to bring proclaimed offenders to book.
B. International Standards
Section 86 conforms to international best practices regarding recovery of assets, specifically those codified in the United Nations Convention against Corruption (UNCAC) and other international conventions. It reiterates India’s abidance by norms to fight transnational crime and prevent criminals from using international borders to escape justice.
Also read: BNSS Section 83
VI. Conclusion
Section 86 of the BNSS, 2023, is a major step forward in India’s strategy in countering transnational crime and preventing declared offenders from evading justice by hiding assets abroad. By providing for international cooperation in identification and attachment of property abroad, it makes India’s criminal justice more effective. But success of this provision is subject to the inclination of foreign jurisdictions to cooperate and the availability of strong legal structures to underpin such cooperation. With India consistently improving its legal framework, provisions such as Section 86 take on a key role in helping to ensure that justice is delivered, regardless of geographical location.
