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Chapter – 3 Procedures for Obtaining Mutual Legal Assistance

Chapter – 3 Procedures for Obtaining Mutual Legal Assistance
7. Request for provision of evidence:

(1) If the authority competent to make investigation or prosecution in accordance with the prevailing law has
adequate grounds to believe that any document, evidence, information or object, including any banking, financial or business records, which may be of assistance in the investigation or prosecution of any offence, is in a foreign state, the authority may request the Central Authority for the provision of such document, evidence, information or object.
(2) If there are adequate grounds to believe that any document, evidence, information or object, including any banking, financial or business records, which may be of assistance in the judicial proceedings, is in a foreign state, the Court may make an order for that purpose.
(3) If an order is made under sub-section (1), the Court shall request the Central Authority for the provision of such document, evidence, information or object.
(4) If, in making a request for the provision of any document, evidence, information or object under sub-section (1) or (3), it appears necessary to search any place or object or freeze any object, the concerned authority or Court may make a request also for executing the search of such place or object or freezing any object.
 Ministry of Law, Justice and Parliamentary Affairs designated as the central authority as per notice published
in the Nepal Gazette dated 2069/11/20 (3 March 2013)

8. Request for appearance of and locating persons:

(1) If there are adequate grounds to believe that any person, who may be of assistance in the judicial proceedings, resides in a foreign state, the Court may make an order for that purpose.
(2) If it is necessary to locate or identify any person, who is related to any judicial proceedings and is in the territory of a foreign state, the Court may make an order for that purpose.
(3) If an order is made under sub-section (1) or (2), the Court may make a request to the Central Authority for the availability of such person or for locating the place in the foreign state where such person is staying or for identifying such person.

9. Request for service of process or judicial document:

(1) If, in any case filed in the Court, it is necessary to serve any process or judicial document on any person who is residing or staying in a foreign state, the Court may make an order for that purpose.
(2) If an order is made under sub-section (1), the Court shall request the Central Authority for the service of such process or judicial document on the person residing or staying in the foreign country.

10. Request for taking evidence:

(1) If, in respect of any case sub judice in the Court, it is necessary to take any evidence in a foreign country, the
Court may make an order for that purpose.
(2) If an order is made under sub-section (1), the Court shall write to the Central Authority to that end.
11. Request for examination of witness and service of written interrogations:

(1) If, in the course of any judicial proceedings, it is necessary to examine any person, who is residing or staying in a foreign country as a witness, and that person does not want or is not able to travel to Nepal, the Court
may order that such person be examined by the court of the foreign country as a witness.
(2) If an order is made for the examination of a witness under sub- section (1) and such witness is not able to appear before the court of foreign country, the Court may make an order for the examination of witness by way of written interrogatories.
(3) Notwithstanding anything contained in sub-section (2), the Court may, at the request of the concerned party, may make orders for the examination of witness and for deposition by way of written interrogatories at the same time.
(4) If a witness is unable to appear in the court of a foreign country because of old age or physical illness or to appear in the Court of Nepal because of residing or staying abroad and the Court considers it reasonable to examine such witness through video conferencing, it may make an order for the examination of such witness through video
conferencing.
(5) If an order is made under this Section, the Court shall communicate it to the Central Authority.

12. Request for freezing or confiscating property: (1) If there are adequate
grounds to believe that the whole or any part of property related with the
judicial proceedings is located in a foreign state, the Court may make an
order for the freezing or confiscation of such property.
(2) If an order is made under sub-section (1), the Court shall
communicate it to the central authority for the freezing or confiscation of
such property.
13. Request for enforcement of judgment : (1) If it appears that any judgment
made by a Court of Nepal is to be enforced by a foreign court, the Court
may make an order for that purpose.
(2) If an order is made under sub-section (1), the Court shall
communicate it to the Central Authority.

14. Details to be set out in or documents to be attached with communication to Central Authority: (1) The concerned authority or Court shall set out the following information in a communication to be sent under Section 7,
8, 9, 10, 11, 12 or 13 for mutual legal assistance:
(a) the court requesting judicial proceedings, summary of judicial proceedings, and relevant laws,
(b) matter of mutual legal assistance being sought,
(c) in the case of judicial proceedings being of criminal nature, the maximum punishment that can be imposed
in that proceedings, and in the case of such proceeding being of civil nature, the maximum amount in
controversy as claimed,
(d) the location and nature of the document, evidence, information, object or property related with judicial
proceedings,
(e) if search has to be made, description of the object and full address of such place,
(f) in relation to a person capable of making assistance in the judicial proceedings, name, description and
nationality of that person, passport number or national identity number, if any, of that person, including other
necessary details indicating that person’s identity, and information, to the extent possible, about the place
where that person is currently residing,
(g) statement substantiating that the requested document, evidence, information, object or person has material
relation with judicial proceedings,
(h) where the originals of the concerned evidence, document are necessary, justifications for the same,
and if they are to be returned, assaurance to return them,
(i) concerned authority of the foreign country to whom request for mutual legal assistance is addressed,
(j) period within which mutual legal assistance should be provided,
(k) if the request is for the search or seizure of any object, grounds showing the commission of offence in Nepal
by the person who has ownership in such object or increment of property from such offence,
(l) if the request is for the service of a process or judicial document,
(1) full name of the person whom such process or judicial document has to be served on,
(2) country where the person mentioned in clause (1) is residing or staying, passport or national
identity card number, if any, of that person, other necessary details indicating that person’s
identity including description and nationality, and information, to the extent possible, about
the place where that person is currently residing,

(3) if the process or judicial document cannot be served at the address of the person mentioned in
clause (2), country and address of the enterprise where he or she is working or running business.
(m) if the request is for the taking of evidence,-
(1) if the court or body that is requested to take evidence is identified, details of that court or
body,
(2) details of the taking of evidence or other judicial act to be done,
(3) if any witnesss has to be examined, name, surname and address of such witness, and
details of passport or national identity card indicating his or her identity,
(4) if a witness has to be examined by a letter interrogatory, description of the questions to be
asked to the witness,
(5) indication as to whether a witness should be examined under oath or not,
(6) if inspection, measurement, survey or examination of any document, movable or
immovable property should be made, description thereof.
(n) if the request is for the freezing or confiscation of a property,
(1) description as to whether judicial proceedings in the matter related with the property is at the
stage of being filed or has been filed or decision has not been made,
(2) description showing that the confiscation of the property has a material relation with judicial
proceedings,
(3) description that an order of confiscation has been made and such order has become
unappealable,
(4) description that the amount payable under the order of confiscation remains due,
(5) if the person affected by the order of confiscation has not appeared in the court,
description that such person has been served with a notice with adequate time for his or her
defence,
(o) other necessary description.

(2) A request for seeking description under sub-section (1) must be accompanied by the following documents:
(a) if the request is for facilitating the attendance of a person, identifying the location of a person or for
indentifying the person, his or her photograph to the extent possible,
(b) evidence that the person whose attendence is sought has freely expressed willingness to so attend,
(c) order made by the Court in that respect,
(d) if a process or judicial document is to be served, two attested copies of the process or judicial document,
(e) if a request is for the enforcement of a judgment- (1) a certified original copy of the judgment of the
Court,
(2) evidence showing that the judgment has become incapable of being appealed.

15. Request to be made to foreign state for obtaining mutual legal assistance:
(1) If the Central Authority receives a request for mutual legal assistance under Sections 7, 8, 9, 10, 11, 12 or 13, it must request, through the diplomatic channel, the foreign state for the provision of such mutual
legal assistance.
(2) In making a request in accordance with sub-section (1), the Central Authority must set out the following description, in addition to the documents mentioned in Section 14:
(a) the name of requesting authority or Court,
(b) if a certain process has to be adopted in executing the request in the foreign state and in providing
information or object as per the request, description of that process,
(c) if confidentiality of request is intended, the reasons and grounds for that,
(d) if the request is for facilitating the attendance of a person, arrangement for security of that person and
other facilities including accommodations of that person,
(e) if the request is made under any treaty and a separate process is to be adopted in making such request under
the treaty, description of that process,
(f) such other description as specified by the Government of Nepal by notification in the Nepal Gazette.
(3) In making a request pursuant to sub-section (2), the following documents must be attached:
(a) if a request is for arranging the attendance of a person, undertaking that the person shall not be detained,
prosecuted or punished for any offence against law that was committed prior to the request for the
attendance of that person, and that such person shall be returned to the concerned country,
(b) undertaking that the person shall not be compelled to give evidence or assistance in relation to any matter
other than the matter to which the request relates,
(c) undertaking that the person shall not be subjected to any legal act or punishment in relation to the judicial
proceedings except for making false statement or contempt of court,
(d) if a request is made for search, undertaking that the objects searched and seized shall be retained safely
and be returned after such purpose is served,
(e) if a request is made for any document, object or information, undertaking that it shall not be published
without consent of the concerned country,
(f) such other documents as specified by the Government of Nepal by notification in the Nepal Gazette.
(4) If, in making a request for mutual legal assistance under this Section, any treaty has not been concluded with a country for that purpose and any undertaking has to be made that if such country makes a request
for mutual legal assistance of similar nature in the future, the mutual legal assistance as requested shall be provided on the basis of reciprocity, the Central Authority may make such undertaking through the diplomatic
channel.
16. To be admissible in evidence: (1) An evidence taken by a foreign country in accordance with the law of that country pursuant to a request made under Section 15 and made available to the Court through the Central
Authority may be taken in evidence as if it were taken in accordance with law.
(2) Notwithstanding anything contained elsewhere in this Act, nothing shall bar the settlement of a case by examining the other available evidence for the sole reason that a foreign state has refusd to take
evidence or evidence has not been taken by the competent authority of such state.
(3) A certificate issued on behalf of the competent authority of a foreign state indicating the value of the property confiscated in the foreign state, and the date of confiscation, pursuant to a request for mutual legal
assistance under Section 15 may be taken in evidence for any judicial proceedings.
(4) Notwithstanding anything contained in the laws in force, examination of witness or interrogatories executed in a foreign country pursuant to this Act may be taken in evidence as if such examination of
witness or written interrogatories were executed in the Court of Nepal.
17. Special arrangement to be made for attendance of person: (1) If any person is to travel to Nepal in the course of mutual legal assistance pursuant to a request made under Section 15, the Central Authority must,
in coordination with the competent body of the foreign state, make appropriate arrangements for the arrival and departure of such person to and from Nepal.
(2) If a person who is in attendance in the course of mutual legal assistance is in detention in accordance with the law of the concerned foreign country, judicial assistance must be obtained by holding that person in detention also in Nepal.
18. Process or judicial document deemed to have been duly served:

(1) If a foreign state gives information that a process or judicial document has been served on the concerned person on the basis of a request made for mutual legal assistance pursuant to Section 15, the process or judicial
document is deemed to have been duly served on that person.
(2) If a foreign state refuses to serve a process or judicial document on the basis of a request made for mutual legal assistance pursuant to Section 15 or such country gives information through the diplomatic
channel to the Court through the Central Authority that the process or judicial document could not be served since such person was not found or identified, the contents of such process or judicial document shall be
published in any national daily newspaper of the country where such person is residing or staying or of Nepal.
(3) Where a process or judicial document is served under sub- section (2), the process or judicial document is deemed to have been duly served

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