INDIA Law and Practice Contributed by: Vijayendra Pratap Singh, Asif Ahmed, Bhanu Jindal and Jitesh Lakra, AZB & Partners
2. Procedures and Trials 2.1 Disclosure of Defendants’ Assets Criminal Proceedings
Further, as noted in 1.5 Proprietary Claims Against Property , the BNSS empowers police officers to seize property involved in a fraudulent offence. The mag - istrate may also issue attachment orders (including ex parte interim attachment orders), where property is believed to constitute proceeds of crime. These powers can be exercised at a pretrial stage and even before the accused has an opportunity to plead and establish their innocence in a trial. Criminal courts also have wide powers to secure the custody of any property produced before them during the pendency of trial and may order its release/restoration to the claimant either during the pendency of investigation/ trial or after conclusion of the trial. Civil Law Remedies for Violation of an Injunction Violation of an interim injunction constitutes a con - tempt of court and is punishable with civil imprison - ment and/or a fine. The court may also attach the property of the violating party and declare any trans - action in violation of such injunction null and void. Criminal Law Remedies for Violation of an Injunction Under the BNS, fraudulent removal or dissipation of assets to prevent forfeiture for the satisfaction of an order or a decree, whether passed or likely to be passed, is punishable with imprisonment of up to two years or a fine, or both. Cross-Undertakings There is generally no statutory requirement for a claim - ant to furnish a cross-undertaking in damages, except in patent suits filed in New Delhi. However, courts or arbitral tribunals may require such an undertaking to indemnify losses suffered by the opposite party if the injunction is later found unwarranted. Courts may also impose conditions, including deposit of an amount, while granting interim relief. Further, Under Section 144 of the CPC, where any order is subsequently varied, reversed or modified, a party may seek restitution of its position before the making of such an order, which could include refund of costs and payment of interest, damages and com - pensation.
Under Section 94 of the BNSS (Section 91 of the CrPC), a court or a police officer may compel a per - son, through a written notice, to produce any “docu - ment or other thing” necessary or desirable in respect of the fraudulent act, during the stage of investigation, inquiry or trial. Notably, Section 94 has been amended to vest power with a law enforcement agency to seek production of communication devices containing digi - tal evidence. A person may be compelled to disclose documents relating to assets held by themselves or through nominees. Failure to produce documents or electronic records before a public servant may attract simple imprisonment of up to one month and a fine of up to INR5,000. If such failure is before a court, it may be punishable with simple imprisonment of up to six months and a fine of up to INR10,000. Civil Proceedings In civil proceedings, a claimant may seek discovery, inspection and admission of certain documents in the control of the opposite party. Where assets are, in the usual course of business, held by a third party, the court may direct such third party to disclose them. The opposite party may also be required to answer specific questions (termed “interrogatories”) served by the claimant. Failure to answer such interrogatories or comply with an order of discovery may lead to dis - missal of the defendant’s defence under Order XI Rule 21 of the CPC. Additionally, in the case of false infor - mation, the defendant may also be proceeded against for perjury. At the same time, courts may impose costs where interrogatories are unreasonable, vexatious or As explained in 1.7 Prevention of Defendants Dis- sipating or Secreting Assets , a party can be put to terms and be directed by the court to deposit a cer - tain amount. Further, under Section 144 of the CPC, a court may order restitution where an order is sub - sequently vacated or modified. This power includes the power of the court to award consequential costs to the party. exceedingly lengthy. Cross-Undertakings
176
Powered by FlippingBook