Chapter-5 Provision of Mutual Legal Assistance

Chapter-5 Provision of Mutual Legal Assistance
31. To make order for provision of mutual legal assistance:

If the Central Authority makes order to the concerned investigating authority for the provision of mutual legal assistance pursuant to sub-section (3) of Section 27 or if the Court does not refuse to provide such mutual legal assistance pursuant to Section 29, the investigating authority or the Court must make order to initiate necessary action in that respect for the purpose of providing the mutual legal assistance pursuant to the request by the
foreign state.

32. Provision of evidence:

(1) If a foreign state makes a request for the provision of any document, evidence, information or object pursuant to
Section 19 and such document, evidence, information or object can be provided in accordance with law, the concerned authority or Court shall make order for sending certified copies of such document, evidence,
information or object.
(2) If a foreign state makes a request for the provision of originals of the document, evidence, information or of the object itself as provided for in sub-section (1), the concerned authority or Court may order for
sending the originals of such document, evidence, information or object upon retaining certified copies thereof and, in the case of the object, shall provide such object upon maintaining records of description thereof.
(3) If a foreign state makes a request for search or seizure of any object, the concerned body must make search or seizure of the object in accordance with law.
(4) Notwithstanding anything contained in sub-section (3), if a request is made for the search or seizure of any object in relation to any offence, the request for the search or seizure of such object may be refused if that act is not an offence under the laws of both Nepal and the requesting foreign state.

33. Request for assistance in making attendance of, locating, or identifying  persons:

(1) If a foreign state has made a request for assistance in making attendance of a person pursuant to Section 20, the Central Authority must make arrangements, in coordination with the foreign state, for sending and taking back such person from and to Nepal.
(2) If a person who is requested for making attendance pursuant to sub-section (1) is held in detention in Nepal, that person must, with the leave of the concerned Court, be handed over to the competent body of
the foreign state from the entry point of Nepal.
(3) After the conclusion of the matter in relation to which the attendance of the person handed over pursuant to sub-section (2) was sought in the foreign state, the custody of that person must be taken from the competent body of the foreign state at the entry point of Nepal.
(4) If a foreign state has made a request for locating the place of any person related to any judicial proceedings or for identifying a person, the concerned body must locate the place where such person is staying or
identify the person.

34. Service of process or judicial document:

(1) If a foreign state has made a request for the service of any process or judicial document pursuant to
Section 21, the concerned Court must serve such process or judicial  document in accordance with law as if the judicial proceedings were sub judice in that Court itself.
(2) If, in serving a process or judicial document pursuant to sub-  section (1), any specific procedure or method is required to be followed in the service of such process or document pursuant to a treaty concluded
with the foreign state or pursuant to the request by the foreign state and request has been made by the Central Authority accordingly, the concerned Court must serve such process or judicial document by following such procedure or method.
(3) After the service of any process or judicial document pursuant to this Section, the concerned Court must prepare the description of service of such document.
(4) If the description of service provided for in sub-section (3) has to be translated into the English language pursuant to a request by the court of the foreign state, the Central Authority must translate that
description, and certify the originals received from the concerned Court and the translated copy.

35. To examine witness or take evidence:

(1) If the court of a foreign state has made a request for examining any witness or taking evidence pursuant to Section 22, the concerned Court must take evidence as if evidence were taken in the proceedings of a case sub judice in such Court.
(2) If, in taking evidence pursuant to sub-section (1), the Court is required to give a time-limit for any witness or person to appear before the Court, it must serve the process in accordance with law, giving a time
limit of up to seven days excluding the time required for journey.
(3) In taking evidence pursuant to sub-section (1), the concerned Court must take evidence being limited to the matter of examination of witness, preparation of answers to the written interrogatories or provision
of evidence, document or description of a movable or immovable property pursuant to the request by the court of the foreign state.
(4) If, in making examination of witness, preparing answers to the written interrogatories or examining document or taking evidence pursuant to sub-section (3), the parties to the case in the matter of which evidence is taken pursuant to this Section, their attorneys or law practitioners wish to appear in the Court, the concerned Court may give
permission to such parties, attorneys or law practitioners to appear in the Court at the time of taking evidence.
(5) The concerned Court shall apply the laws of Nepal in taking  evidence pursuant to this Section.
(6) Notwithstanding anything contained in sub-section (5), if a treaty has been concluded with a foreign state for taking evidence by adopting any specific procedure or method or the foreign state has
requested for the adoption of such procedure or method and the Central Authority has requested for the taking of evidence accordingly, the concerned Court shall take evidence accordingly.

36. To freeze or confiscate property:

(1) If a foreign state has made a request to freeze or confiscate any property situated in Nepal pursuant to Section
23, the Court must order the concerned body to freeze or confiscate the property in accordance with the laws of Nepal in force.
(2) Notwithstanding anything contained in sub-section (1), if the Court is satisfied that the concerned person whose property is subject to the order of confiscation in relation to the offence has already paid the amount payable by him or her or that in the event of inability to pay such amount, that person has already served the sentence of imprisonment equal to that amount, the Court shall not make order to confiscate the  property.
Provided that if the property involves the proceeds of crime or instruments of crime, such property must be confiscated.
(3) If the value of the property liable to confiscation is indicated in a currency other than the Nepalese currency, that value shall be converted into the Nepalese currency on the basis of the foreign exchange rate as determined by the Nepal Rastra Bank on the day of filing of application in the Court pursuant to Section 29, for the purpose of determining the amount in controversy pursuant to this Act.

37. Special provisions relating to enforcement of judgments made by foreign
courts:

(1) Notwithstanding anything contained elsewhere in this Act, a foreign state or foreign party wishing to have a judgment of a civil nature made by a foreign court recognized or enforced in Nepal must make an
application, accompanied by the following documents, to the concerned High Court:
(a) full text of the certified judgment,
(b) if the judgment was made in absentia, originals or certified copies of the document establishing that the
process was duly served on the party who was absent,
(c) all documents establishing that the judgment satisfies the requirements set forth in clauses (b) and (c) of sub-
section (2),
(d) a copy with full text of the judgment translated into the Nepalese language, as certified by the concerned
diplomatic or consular representative or by a person authorized to make formal translation.
(2) If, upon studying the application, along with the documents, received pursuant to sub-section (1), the judgment made by a foreign court appears to satisfy the following requirements, the concerned High
Court must recognize the judgment made by the foreign court and send it to the concerned District Court for enforcement:
(a) such judgment has been made by the competent court with appropriate jurisdiction,
(b) such judgment is capable of being enforced in the concerned country,
(c) such judgment has become final and is not capable of being reviewed pursuant to the law of the concerned
country.
Explanation: For the purposes of this Section, “concerned District Court” means the District Court of the territory where the property from which the amount in controversy has to be recovered, partition shares to
be set aside and right to property to be executed pursuant to the judgment is situated.
(3) Notwithstanding anything contained in sub-section (2), a judgment made by the court of a foreign country shall not be recognized and enforced in Nepal if:
(a) such judgment has been obtained by deception or fraud from the procedural perspective,

(b) a case was filed in a court of Nepal prior to its being filed in a foreign court between the same parties, over
the same fact, and for the same purpose as the parties, fact and purpose being involved in such judgment and
is sub judice in the court of Nepal,
(c) judgment has already been made by the court of Nepal in the case mentioned in clause (b),
(d) in the case mentioned in clause (b), judgment has been made by a court of another country and such judgment
has already been recognized and enforced in or is in the process of being enforced in Nepal,
(e) adequate opportunity has not been given to any party to fairly represent himself or herself in such judgment,
(f) such judgment has been made in defiance of the regular procedures required for the trial of a case,
(g) enforcement of such judgment would be contrary to public order.
(4) If it is so written by the High Court for the enforcement of a judgment pursuant to sub-section (2), the concerned District Court shall  implement the judgment as if it were made by that Court itself.

38. Provision of mutual legal assistance:

(1) Upon the completion of acts including the collection of evidence, document and taking of evidence
relating to mutual legal assistance pursuant to this Chapter, the  investigating authority, Court or concerned District Government Attorney Office must send the description thereof to the Central Authority.
(2) The Central Authority must provide the description relating to mutual legal assistance received pursuant to sub-section (1) to the foreign state through the diplomatic channel.