Letters Rogatory or Letter of Request

 Latin term “rogatorius” means seeking information. Letters Rogatory are the letters of request sent by the Court of one country to the Court of another country for obtaining assistance in investigation or prosecution of a criminal matter.

Letters rogatory are the customary method of obtaining assistance from abroad in the absence of a treaty or executive agreement. A letter rogatory is a request from a judge in India  to the judiciary of a foreign country requesting the performance of an act which, if done without the sanction of the foreign court, would constitute a violation of that country's sovereignty. Prosecutors should assume that the process will take a year or more. Letters rogatory are customarily transmitted via the diplomatic channel, a time-consuming means of transmission. The time involved may be shortened by transmitting a copy of the request through Interpol, or through some other more direct route, but even in urgent cases the request may take over a month to execute. 

Indian Law

In order to conduct formal investigation and to collect evidence ,Section 166A of the Criminal Procedure Code, 1973 lays down the procedure of sending Letter Rogatory through a competent Court.

Sec 166a CrPC: Letter of request to competent authority for investigation in a country or place outside India. any Criminal Court may issue a letter of request.

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, is the replacement for the Criminal Procedure Code (CrPC), 1973. The BNSS aims to simplify the criminal procedure, reduce trial duration, and enhance police investigatory powers. It also seeks to modernize the procedure and make it more socially responsive. 

Bharatiya Nagarik Suraksha Sanhita, 2023, (BNSS)  Sec 186  deals with the subject without any change.

No request for issue of a Letter Rogatory shall be brought by IO without the prior concurrence of the Central Authority i.e., Ministry of Home Affairs (MHA).

Certain countries do insist that a Letter Rogatorybe sent in a particular language or format.

For obtaining the concurrence of MHA, the Investigating Agency concerned has to send the following :

 • A self-contained note containing brief facts of the case, names of the accused and a copy of First Information Report (FIR). 

• legal opinion of Director of Prosecution is mandatory. 

• The relevance of statements of witnesses to be examined and collection of documents/material being requested to be seized etc., 

• The relevant provisions of the MLAT or MoU or Agreement or Arrangement or an International Convention under which a Letter Rogatory is to be made may be enclosed.

Mutual Legal Assistance Treaty (MLAT):

• is a formal request made by the Central Authority of India i.e., Ministry of Home Affairs to the Central Authority of another country on the request of Investigating Officer or Agency under any Bilateral Treaty/Agreement, Multilateral Treaty/Agreement or International Convention.

 • India provides mutual legal assistance in criminal matters. 

• India has entered into Mutual Legal Assistance Treaties/Agreements with 42 countries (November 2019).

Investigators can obtain evidence from abroad using MLAT. MLAT is a mechanism whereby countries cooperate with one another in order to provide and obtain formal assistance in prevention , suppression , investigation and prosecution of crime to ensure that the criminals do not escape or sabotage the due process of law for want of evidence available in different countries.

India & Letters Rogatory

The extradition trial of Vijay Mallya, wanted in India on charges of Rs 9,000 crores fraud and money laundering, began on Monday (Dec 15, 2017) at Westminster magistrates court in  UK court, with the prosecution asserting that the embattled liquor baron had a case of fraud to answer. The trial began with the Crown Prosecution Service (CPS), arguing on behalf of the Indian government, presenting its opening arguments in the case which focused on loans totalling around Rs 2,000 crores sought by the erstwhile Kingfisher Airlines from a consortium of Indian banks.

 

The CPS admitted that there may have been irregularities in the internal processes of the banks sanctioning some of those loans but that would be a question to be dealt with at a later stage in India. The focus of our case will be on his (Mallya's) conduct and how he misled the bank and misused the proceeds, said CPS barrister Mark Summers. The CPS noted that in all the loans sought, loss-making Kingfisher Airlines had relied on nearly the same set of security pledges, which included the UB Groups reputation, Kingfishers own brand value, a promised infusion of equity funds and a projected return to profit by the airline by February 2011. The airline had claimed that it had put proactive measures in place to improve performance, the CPS noted.

However, it was also a time when according to an industry analysis, the state of the airline industry was described as grim and as being in intensive care. It was not a scenario in which a state bank would have entertained such loan requests, the CPS added.

A four-member CBI and Enforcement Directorate (ED) team from India had also arrived at the court ahead of the trial, one of whom nodded when asked they were confident about their case. Mallya, who has been out on bail since Scotland Yard executed an extradition warrant in April this year, will be in the dock for the duration of the trial scheduled to end on December 14. A judgment in the case, being presided over by Judge Emma Louise Arbuthnot, is unlikely until early next year.

The CPS will need to demonstrate a prima facie case by producing evidence to show that the criminal charges against Mallya are justified and that he should be extradited to face the Indian courts. Prison conditions in India are expected to be at the forefront during the hearing, with the Indian government providing assurances of protection of Mallya's human rights.

FIU-IND, through its foreign counterparts, has identified two bank accounts in Belgium belonging to Nirav Modi, the perpetrator of a massive 11,400 crore rupee (about $1.67 billion) bank scam in February 2018. FIU-IND then shared this information with the Enforcement Directorate (ED), which asked the Belgian authorities to freeze those accounts; the authorities honored that request. Additionally, FIU-IND helped the ED and the Income Tax Department with their investigation of Sanjay Bhandari, a former arms dealer, by asking its counterparts in Europe and the Middle East for information about Bhandari’s assets abroad. The ED later seized 26.6 crore rupees ($3.89 million) of assets to offset his undisclosed deposits in foreign bank accounts in the United Arab Emirates (UAE), beneficial ownership of companies incorporated in the UAE, and properties based in the UAE and the United Kingdom.

As on Feb 03, 2025, the Enforcement Directorate (ED)has crackdown on overseas ‘illegal’ wealth in assets worth about ₹16,000 crore in 16 foreign jurisdictions attached

These properties are located in the United States, United Kingdom, United Arab Emirates (UAE), Japan, France, Spain, Switzerland, Australia, Singapore, Sri Lanka, China, Hong Kong, Mauritius, Bermuda, archipelagic Comoros, and self-governing British Crown dependency Isle of Man

From large tract of lands, residential premises and commercial properties, to bank accounts, overseas assets valued close to ₹16,000 crore across 16 foreign jurisdictions have been attached or frozen in the recent past by the Enforcement Directorate in more than 30 cases involving major business houses and prominent persons, including the founder and former chairman of Indian Premier League Lalit Modi, and the uncle-nephew duo Nirav Modi and Mehul Choksi.

Happy reading,

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