Introduction:
The Rajasthan High Court has invoked the mechanism under Section 110 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), read with the Mutual Legal Assistance Treaty (MLAT) between India and the United States of America, to ascertain the whereabouts of a woman complainant who was reportedly residing in the United States and to facilitate service of judicial notice upon her in a rape case. The Court considered this step necessary because repeated efforts to serve notice upon the complainant had remained unsuccessful for nearly two years, preventing the investigating agency from verifying crucial information and proceeding effectively with the investigation.
The matter was heard by a Bench of Justice Anoop Kumar Dhand in a petition seeking quashing of an FIR alleging rape. The petitioner approached the High Court in connection with the criminal proceedings, while the State defended the investigation and explained the difficulties encountered by the investigating officer in securing the complainant’s participation. The case raised an important procedural question: how should an Indian court proceed when a person whose presence is material to a criminal investigation is believed to be living abroad, but their current address cannot be established and ordinary methods of service have failed?
The dispute arose against the background of an FIR lodged by the woman alleging rape. Following registration of the FIR, she subsequently returned to the police station and submitted an application seeking withdrawal of the complaint. In that application, she reportedly stated that the FIR had been lodged in anger. On the basis of this development, the investigating officer considered submitting a negative final report, indicating that the material then available did not warrant proceeding with the prosecution in the manner originally contemplated.
However, before the proposed closure report could be submitted, a senior police officer contacted the complainant to verify whether the withdrawal application genuinely reflected her wishes. During that interaction, the woman reportedly stated that she had submitted the application under pressure and that she wanted the case against the petitioner to continue. This changed the course of the investigation. The police could no longer treat the earlier application as an unambiguous expression of the complainant’s decision to withdraw from the prosecution. Instead, the circumstances in which the application had been made required further verification.
The investigating officer informed the Court that the complainant’s participation was necessary to clarify the conflicting versions and establish the circumstances surrounding the withdrawal application. In her absence, the police could not properly verify whether the application was voluntary or had been submitted under coercion. Consequently, the investigation remained pending, and the proposed negative final report could not be finalised on the basis of the incomplete information.
The difficulty was compounded by the complainant’s reported departure from India. According to information obtained by the investigating officer from her relatives, she was residing in the United States. However, her precise residential address there was not known. The police had made repeated attempts to serve notice at the available address, but those attempts had not succeeded over a period of approximately two years. Her whereabouts within India could not be ascertained either.
The High Court was therefore confronted with a situation in which a criminal investigation had remained unresolved because the person whose statement and participation were considered central to clarifying the facts could not be contacted through the available channels. The Court described the prosecutrix as the “star witness” in the matter and recognised that the investigation could not progress effectively without resolving the issue of her availability and the circumstances surrounding her earlier withdrawal application.
The legal framework relevant to this problem included Section 110 of the BNSS, which deals with reciprocal arrangements concerning the service or execution of court processes in relation to persons residing outside India in countries with which the Central Government has made the requisite arrangements. The provision supplies a procedural route for seeking assistance in serving or executing processes abroad, subject to the applicable arrangements and prescribed procedure.
The Court also considered the India–USA Mutual Legal Assistance Treaty in Criminal Matters. Signed in 2001 and brought into force in 2005, the treaty provides a framework for cooperation between the two countries in criminal matters. Article 1(2), as referred to by the Court, encompasses forms of assistance including taking evidence, providing documents and locating persons. These mechanisms are particularly relevant when the progress of a criminal investigation or judicial proceeding depends on locating an individual who may be within the territory of another country.
The Ministry of Home Affairs has also issued guidelines governing requests for service of summons, notices and other judicial processes upon persons residing abroad. The guidelines dated 11 February 2009, revised on 4 December 2019, describe the administrative procedure through which such requests are processed. Under the prescribed arrangement, the Ministry of Home Affairs acts as the Central Authority for MLAT requests and forwards appropriate requests through the relevant diplomatic or other designated channels.
Against this legal and factual background, the Rajasthan High Court considered whether the international cooperation mechanism could be used to ascertain the complainant’s whereabouts and facilitate service of notice. The Court’s order addressed a procedural obstacle to the investigation rather than determining the truth or falsity of the rape allegation. Its central concern was to ensure that the investigation could move forward on a verified factual basis while using legally recognised procedures to contact a person believed to be residing abroad.
Arguments of the Parties:
The petitioner had approached the Rajasthan High Court seeking quashing of the FIR. The precise grounds advanced by the petitioner are not fully set out in the available case summary, and it would therefore be inappropriate to attribute specific legal submissions that have not been reported. Nevertheless, the procedural context of the petition was significant. The complainant’s subsequent application seeking withdrawal of the FIR, coupled with the investigating officer’s initial proposal to submit a negative final report, formed part of the factual background against which the petition and the continuing investigation had to be considered.
The withdrawal application was an important development because it reportedly stated that the FIR had been lodged out of anger. If accepted at face value and considered alongside the other available material, the application could have affected the investigating agency’s assessment of the case. However, the later statement attributed to the complainant complicated that position. She reportedly informed a senior police officer that the withdrawal application had been submitted under pressure and that she wanted the petitioner to be prosecuted.
In these circumstances, the petitioner’s request for quashing had to be considered within the broader context of an investigation that had not reached a settled conclusion. The fact that the complainant had submitted a withdrawal application did not, by itself, resolve the dispute concerning its authenticity, voluntariness or legal significance. Those issues required verification, particularly because the complainant was subsequently reported to have expressed a contrary position. The High Court’s consideration of the matter thus centred on the need to address the unresolved factual position through an appropriate procedure.
On the State’s side, the investigating officer explained the practical difficulties that had prevented the investigation from progressing. According to the police account placed before the Court, the complainant was no longer readily available in India. Information obtained from her relatives suggested that she had shifted to the United States, but the police did not have her exact overseas address. This made ordinary attempts to serve notice ineffective.
The State’s position was that the complainant’s participation was essential to verify the circumstances in which the withdrawal application had been made. The police could not independently resolve whether the application had been submitted voluntarily or under pressure without obtaining the complainant’s clarification and assessing the surrounding circumstances. As a result, the investigation remained incomplete.
The investigating officer also explained the sequence of events that led the police to reconsider the proposed closure of the case. After the complainant submitted her withdrawal application, the investigating officer contemplated filing a negative final report. Before that report was submitted, however, a senior police officer contacted the woman to confirm her intention and verify the application. Her reported response—that the application had been made under pressure and that she wished to proceed with the prosecution—required the police to revisit the matter rather than conclude the investigation on the basis of the earlier application.
The State further relied on the repeated failure to serve notice over approximately two years. The issue was not simply that the complainant had failed to appear on a particular occasion. Rather, the investigating agency had been unable to establish her current whereabouts or secure her participation despite repeated efforts. With the complainant reportedly residing abroad and her address unknown, the State required a lawful and workable mechanism to locate her and facilitate service of notice.
The State’s explanation also highlighted the limits of the ordinary investigative process in a case involving a person who may be residing outside India. Indian police authorities cannot assume that the same procedures used for service within the country will necessarily be sufficient when the person is located abroad. Requests for assistance must follow the applicable statutory provisions, international arrangements and administrative guidelines. In the circumstances of this case, the India–USA MLAT and Section 110 of the BNSS offered a potential legal route for overcoming the difficulty.
The State’s position was therefore directed towards securing the complainant’s participation through the proper legal channels. It was not necessary for the High Court to determine the merits of the rape allegation at this procedural stage. The immediate concern was whether the police could be permitted to use the statutory and treaty-based mechanisms to establish the complainant’s whereabouts and serve the required notice, thereby enabling the investigation to proceed on a more reliable factual foundation.
The competing concerns required careful treatment. On the one hand, the petitioner had sought quashing of the FIR, and the complainant’s earlier withdrawal application formed part of the relevant background. On the other hand, the police had subsequently received information that the application was allegedly submitted under pressure, making it unsafe to treat that document as conclusive without verification. The complainant’s unavailability prevented the investigating agency from resolving that contradiction. The Court consequently had to consider a procedural solution that could facilitate verification without prejudging the petitioner’s guilt or treating either version as conclusively established.
Court’s Judgment:
Justice Anoop Kumar Dhand of the Rajasthan High Court considered the continued failure to serve notice upon the complainant, the uncertainty surrounding her whereabouts and the importance of her participation in the investigation. The Court noted that despite repeated attempts over approximately two years, the complainant remained unserved. In view of the investigating officer’s statement that she was reportedly residing in the United States, the Court examined whether the statutory mechanism under Section 110 of the BNSS, read with the India–USA MLAT and the applicable guidelines, could be invoked to facilitate contact with her.
A central consideration was the complainant’s role in clarifying the circumstances of the withdrawal application. The Court described her as the “star witness” in the case, recognising that her statement was material to the investigation. The police had initially considered filing a negative final report after she submitted an application stating that the FIR had been lodged out of anger. That course was subsequently reconsidered after a senior police officer reportedly contacted her and she stated that the application had been submitted under pressure and that she wished to prosecute the petitioner.
The two accounts could not simply be reconciled without further inquiry. The first suggested that the complainant wanted the matter withdrawn, while the second indicated that the withdrawal application did not represent her free and genuine intention. Because the complainant could not be contacted for further verification, the investigating officer was unable to establish the circumstances in which the application had been made. The Court accepted that the absence of this material participant was a significant obstacle to the effective continuation of the investigation.
The Court did not treat the complainant’s inability to be served as a reason to abandon the investigation or to assume that her earlier withdrawal application conclusively settled the matter. Nor did it treat the later allegation of pressure as an established fact. Instead, it focused on the need for a procedure through which her whereabouts could be ascertained and notice could be served in accordance with law. This approach preserved the distinction between an unresolved factual dispute and a judicial finding on the merits.
The statutory foundation for the Court’s direction was Section 110 of the BNSS. The provision concerns reciprocal arrangements for serving or executing court processes in relation to persons residing outside India in countries with which the Central Government has made the necessary arrangements. Such provisions are important because criminal investigations and judicial proceedings may require the participation of persons who are not physically present within Indian territory. Where the relevant reciprocal arrangements exist, the prescribed process can provide a lawful means of seeking assistance from the foreign jurisdiction.
The Court read Section 110 alongside the Mutual Legal Assistance Treaty in Criminal Matters between India and the United States. The treaty was signed in 2001 and came into force in 2005. As noted by the Court, Article 1(2) specifically contemplates assistance in taking evidence, providing documents and locating persons. These forms of cooperation can assist Indian authorities in circumstances where the whereabouts of an individual must be established or evidence must be obtained across international borders.
The importance of the treaty in the present case lay in its potential to help locate the complainant and facilitate service of notice. Although the police had received information from her relatives that she was living in the United States, that information did not disclose her precise address. The treaty-based procedure therefore offered a mechanism through which the competent authorities could seek assistance in ascertaining her whereabouts and completing the required service process.
The Court also referred to the Ministry of Home Affairs guidelines governing service of summons, notices and other judicial processes upon persons residing abroad. The original guidelines were issued on 11 February 2009 and were revised on 4 December 2019. These guidelines establish the administrative route for dealing with requests involving foreign jurisdictions. Under the prescribed arrangement, the Ministry of Home Affairs, through its designated division, acts as the Central Authority for MLAT requests and forwards appropriate requests through the relevant Indian Missions or Embassies and the channels specified under the applicable arrangements.
The significance of these guidelines was that the service of judicial processes abroad must follow an established procedure rather than depend upon informal efforts by the investigating officer alone. Where a person is believed to be residing in another country, the authorities must use the applicable legal and diplomatic channels to seek assistance. This approach respects the territorial limits within which Indian authorities operate while enabling cooperation between states in criminal matters.
The Court further noted that, according to the MLAT guidelines referred to in the proceedings, the United States does not object to service through postal means or informal delivery through diplomatic or consular missions under Article 10(a) of the Hague Service Convention. This was relevant to the question of whether service could be facilitated through recognised channels when ordinary attempts at the available address had failed. The Court relied on the statutory and treaty framework to conclude that service through diplomatic channels was a legally available means of seeking the complainant’s participation, subject to the applicable procedure.
The decision reflects the broader principle that cross-border procedural difficulties should be addressed through lawful international cooperation mechanisms where those mechanisms are available. A person’s reported residence abroad does not necessarily prevent an Indian investigation or judicial proceeding from taking its course. At the same time, Indian authorities cannot bypass the legal requirements governing service and assistance in a foreign country. The statutory framework and the relevant treaty arrangements provide the basis for requesting assistance through designated authorities.
In the present matter, the Court considered the prolonged failure to serve notice, the reported residence of the complainant in the United States, the absence of a verified overseas address and the importance of her statement to the investigation. Taken together, these circumstances justified invoking the mechanism under Section 110 of the BNSS, read with the India–USA MLAT and the relevant Ministry of Home Affairs guidelines.
The Court observed that the complainant’s presence was necessary for further proceedings and that the repeated failure to serve notice had impeded the investigation. It therefore deemed it appropriate to direct that a request be sent to the Ministry of Home Affairs to undertake the process of ascertaining her whereabouts and facilitating service of notice upon her. The request was intended to activate the applicable international cooperation procedure so that the investigating agency could attempt to contact her through the recognised channels.
The direction was procedural in nature. It did not determine whether the rape allegation was true, whether the complainant’s withdrawal application was voluntary or whether the petitioner was guilty of any offence. Those questions remained matters for the appropriate stage of the criminal process, to be addressed on the basis of the evidence and applicable law. The immediate objective was to remove an obstacle to the investigation by establishing a lawful means of locating and serving the complainant.
The ruling is significant because it illustrates hw Section 110 of the BNSS can operate a