Chapter-4 Process for Making Request by Foreign State for Mutual Legal Assistance

Chapter-4 Process for Making Request by Foreign State for Mutual Legal Assistance
19. Request for provision of document, evidence, information or object:

(1) If there are adequate grounds to believe that any document, evidence, information or object, which may be of assistance in the investigation of any offence or in the judicial proceedings or enforcement of judgment in
a foreign country, is in Nepal, the concerned foreign state may make a request, through the diplomatic channel, to the Government of Nepal for  mutual assistance.
(2) If, in making a request under sub-section (1), it appears necessary to search any place or object or seize any object, the foreign state may make a request also for executing search of such place or object or seizure of any object

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20. Request for assisting in attendance of and locating persons:

(1) A foreign  state may make a request through the diplomatic channel to the Government of Nepal for assisting in the attendance of a person in Nepal showing the reason that such person may assist in any judicial
proceedings sub judice in that foreign state.
(2) If it is necessary to locate or identify any person who is related to any judicial proceedings, a foreign state may make a request through the diplomatic channel to the Government of Nepal for that purpose.

21. Request for service of process or judicial document: If it is necessary to serve any process or judicial document on any person or body who is related with judicial proceeding sub judice in a foreign court and is staying in Nepal, the foreign state may, pursuant to the order of the court of the foreign state, make a request through the diplomatic channel to the Government of Nepal for the service of such process or judicial document issued by the foreign court.

22. Request for examining witness or taking evidence:

(1) If, in the course of any judicial proceedings sub judice in any foreign court or body, it is necessary to examine any witness residing or staying in Nepal, the foreign state may, pursuant to the order of the court or body of such
foreign state, make a request through the diplomatic channel to the Government of Nepal.
(2) If, in relation to any case sub judice in a court or body under sub-section (1), it is necessary to examine any evidence in Nepal, the foreign state may, pursuant to the order of the court or body of the foreign
state, make a request through the diplomatic channel to the Government of Nepal.

23. Request for enforcement of order of freeze or confiscation of property:

If it is necessary to enforce an order made by a court of a foreign state to freeze or confiscate a property that is related to the judicial proceedings sub judice in the foreign court because the property in whole or in part is
situated in Nepal, the foreign state may make a request through the diplomatic channel to the Government of Nepal.
24. Request for recognition or enforcement of judgments: If it is necessary to recognize or enforce a judgment of any foreign court related to the judicial proceedings, the foreign state may make a request through the
diplomatic channel to the Government of Nepal.

25. Details to be set out or documents to be attached: The provisions set forth in Sections 14 and 15 shall apply, mutatis mutandis, to a request by a foreign state to the Government of Nepal for mutual legal assistance
under this Chapter, and the concerned foreign state must accordingly set out the necessary details in, or attach the concerned documents, with the request.

26. To forward request for mutual legal assistance to Central Authority: Upon receipt of a request from a foreign state for mutual legal assistance under Sections 19, 20, 21, 22, 23 and 24, the Government of Nepal, Ministry of
Foreign Affairs must forward such request and description, document and evidence attached with the request to the Central Authority for mutual legal assistance.

27. Central Authority to carry out necessary study and examination: (1) If a request as well as description, document and evidence is received for mutual legal assistance under Section 26, the Central Authority must
carry out necessary study and examination of the request and make decision whether or not to initiate action for the provision of mutual legal assistance.
(2) If, on study and examination carried out under sub-section (1), the description, document and evidence received along with the request are not sufficient to initiate action relating to mutual legal assistance, the
Central Authority may write to the foreign state through the diplomatic channel to submit additional description, document and evidence.
(3) If decision is made to initiate action relating to mutual legal assistance under sub-section (1), the Central Authority may, for the purpose of providing mutual legal assistance, order the investigating
authority if the request is for mutual legal assistance related to investigation, and the concerned District Government Attorney to make application to the concerned District Court if the request is for other mutual legal assistance.

28. Refusal to provide mutual legal assistance: Notwithstanding anything contained in Section 27, the Central Authority may refuse to provide mutual legal assistance if:
(a) there exists a ground provided for in Section 4,
(b) the request is not made in accordance with a bilateral treaty,
(c) the request is for mutual legal assistance in matter of any offence and the offence is of a political nature,
(d) the description, document or evidence required pursuant to sub-section (2) of Section 27 is not received from the
concerned foreign country,
(e) the request is related to an offence under the Military Act,
(f) there are grounds for believing that the request was made for the purpose of investigating, prosecuting or punishing a person on account of the person’s race, religion, sex, ethnic origin, nationality or political opinion,
(g) the matter requested for is of insufficient importance to the investigation or information in relation to that matter can be obtained by other means,
(h) there is no undertaking that the matter requested for mutual legal assistance shall not be used for any action other than that in respect of which the request was made,
(i) the provision of the mutual legal assistance would impair public order (odre public).

29. Application to be made to Court:

(1) If an order is received from the Central Authority for the provision of mutual legal assistance pursuant to
sub-section (3) of Section 27, the concerned District Government Attorney must make an application, accompanied by the description, document and evidence received from the foreign state, to the concerned District Court.
(2) The Court may refuse to provide mutual legal assistance if, on examination of the application received under sub-section (1) and the description, document and evidence attached therewith,-
(a) it appears prima facie that the offence in relation to which application is made for mutual legal assistance
cannot be established,
(b) the mutual legal assistance is contrary to a general principle of justice.
(3) Notwithstanding anything contained in sub-section (2), the Court may refuse to provide such mutual legal assistance at any time when the ground provided for in that sub-section appears.

30. Information on refusal of mutual legal assistance to be given: If it is refused to provide mutual legal assistance under Section 28 or 29, the Central Authority must give information thereof to the foreign state through the diplomatic channel not later than seven days