INDIA Law and Practice Contributed by: Vijayendra Pratap Singh, Asif Ahmed, Tanmay Sharma and Bhanu Jindal, AZB & Partners
domestic arbitral award passed under the A&C Act can be enforced in accordance with the pro - visions of the CPC, in the same manner as if it were a decree of the court. Such an enforcement under Section 36 of the A&C Act is subject to any appeal that may lie under Section 34 of the A&C Act. A foreign award may be enforced in India where the court is satisfied that it fulfils the conditions provided for in Sections 44, 48 and 57 of the A&C Act. Such an executable foreign award is deemed to be a decree of the court. Criminal Proceedings While cognisance of criminal fraud can only be taken by an Indian court exercising criminal jurisdiction, various agencies can investigate criminal acts of a fraudulent nature. Powers of investigation, as provided under the BNSS, can be exercised by state police, and officers of special divisions such as the Economic Offence Wing and CBI. Special multidisciplinary agen - cies have also been given powers to investigate fraud under specific statutes – ie, the SFIO to investigate fraud under the Companies Act, and the ED to investigate the predicate offence of fraud under the PMLA. In a significant ruling, the Delhi High Court in RK Gupta v Union of India 2023:DHC:9243 recently held that the SFIO, an investigating agency under the Companies Act, has the power to investigate offences under the Indian Penal Code (now BNS) in addition to the power to investigate offences under the Companies Act. However, on appeal, even though the Supreme Court of India refused to entertain a challenge against the High Court judgment, it did observe that, since the issue as to whether SFIO inspectors are “police officers” under the CrPC (now BNSS) did not directly arise for consideration in said case, the High Court judgment cannot be treated as a precedent in this regard.
Additionally, in order to secure the presence of an accused, a criminal court has the power to issue warrants (both bailable and non-bailable) against the accused person. However, in serious cases of fraud, where accused persons may be evading arrest, the executive can issue Look- Out Circulars (LOCs) for arrest of such persons. LOCs are essentially advisories/instructions issued to immigration authorities to inform law enforcement agencies if such an accused per - son is found to be leaving India or even travel - ling into India. Issuance of LOCs, however, does not automatically lead to arrest; it only results in accused persons being prevented from travel - ling out of India. 5.2 Enforcement of Foreign Judgments For the purposes of Section 44A, “reciprocating territory” refers to any country or territory outside India that has been declared by the central gov - ernment as such, and “superior courts” refers to those courts specified in the relevant notifica - tion. India has designated 13 reciprocating ter - ritories under Section 44A – namely, the United Kingdom, Singapore, Bangladesh, Malaysia, Trinidad and Tobago, New Zealand, the Cook Islands (including Niue), Western Samoa, Hong Kong, Papua New Guinea, Fiji, Aden and, more recently, the United Arab Emirates. A foreign judgment rendered by a superior court in a reciprocating territory may be enforced in India by filing an application for the execution of the foreign decree in the competent Indian court. This application must be accompanied by a certified copy of the decree and a certificate from the relevant superior court of the foreign jurisdiction, indicating any amounts that have been satisfied under the decree. It is important to note that a foreign judgment is not subject to a review on the merits; rather, it must only satisfy
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