Section 105 CrPC Held Inapplicable to Service of Notice in Criminal Revisions Involving Foreign Parties

Commentary on UBS Switzerland AG v. State of West Bengal & Ors., Calcutta High Court, C.R.R. 4314 of 2024, Judgment dated 21 August 2025

1. Introduction

UBS Switzerland AG (“UBS”), a Swiss banking corporation and the de-facto complainant, alleged that Indian accused persons had misappropriated pledged goods worth ₹55 crores delivered in Kolkata. The criminal investigation, started in 2018, saw two closure reports rejected by the Chief Judicial Magistrate, prompting further investigation. When the matter travelled in revision to the Additional Sessions Judge (12^th Court, Alipore), the State sought issuance of summons to UBS under Section 105 of the Code of Criminal Procedure, 1973 (“CrPC”). Initially allowed on 27 June 2024, the order was recalled on 12 August 2024, dispensing with service under Section 105. UBS challenged that recall in the Calcutta High Court under its criminal revisional jurisdiction. The nub: Does Section 105 CrPC mandatorily govern service of notice on a foreign entity that is an opposite party in a criminal revision proceeding?

2. Summary of the Judgment

• The High Court (Justice Bibhas Ranjan De) dismissed UBS’s revision petition.
• It held that Section 105 CrPC—which lays down a special mechanism for cross-border searches, warrants, and attachment—does not extend to the mere service of notice on an opposite party in a criminal revision.
• Registered post with acknowledgment dispatched to UBS’s Swiss address satisfied procedural fairness; absence of Section 105 compliance did not vitiate the revision proceedings.
• While the Additional Sessions Judge’s reasoning (relying solely on past appearance of counsel) was weak, the result—dispensing with Section 105 summons—was legally sound.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

1. Durlab Singh v. District Magistrate, 1974 Cri LJ 1182 (Delhi HC):
   The Court quoted this decision to illustrate that procedural provisions for issuance of processes under Chapter VII-A (including Section 105) are context-specific and do not automatically apply to all criminal proceedings. The Calcutta High Court relied on this reasoning to segregate revisionary notice from investigative measures like search or attachment.
2. Supreme Court dicta on Section 105 (unnamed in the text but acknowledged):
   Justice De referenced “several judicial pronouncements of the Hon’ble Apex Court” that treat Section 105 as a controlled and exceptional power, confined to search, seizure, warrants, and property attachment—each subject to stringent safeguards and reciprocal treaties.

3.2 Court’s Legal Reasoning

The judgment revolves around statutory interpretation:

• Textual Scope of Section 105: The provision belongs to Chapter VII-A (Reciprocal Arrangements for Assistance in Certain Matters and Procedures for attachment and forfeiture of property). The Court emphasised that its operative verbs—“search”, “seize”, “issue warrant”, “attach property”—do not include “serve notice” or “summon” an opposite party for an appellate or revisional hearing.
• Purpose of a Criminal Revision: A revision tests the legality or propriety of subordinate court proceedings; it is not an investigative stage. Therefore, the enhanced machinery of Section 105, designed for evidence-gathering across borders, is ill-suited here.
• Absence of Prejudice: Registered-post notice and postal tracking showed that UBS was informed. As the Supreme Court consistently views procedural defects through the lens of prejudice, the Court found no violation of natural justice.
• Representation by Counsel Not Equivalent to Notice: Justice De clarified that appearance of counsel in trial court does not waive notice requirements in higher forums. Nevertheless, because adequate notice was in fact sent, the recall order did not harm UBS.

3.3 Potential Impact of the Decision

• Narrowing Section 105’s Reach: The decision draws a clear boundary between investigative/coercive cross-border measures (where Section 105 applies) and routine procedural notices in appellate or revisional stages (where it does not). Future litigants will find it harder to invoke Section 105 merely to delay or complicate higher-court proceedings.
• Efficiency in Transnational Litigation: Foreign entities participating in Indian criminal revisions can now expect regular postal or electronic service, expediting hearings. Courts may reserve Section 105 for substantive investigative steps, reducing diplomatic backlog.
• Guidance for Subordinate Courts: Trial and sessions courts must articulate sound reasons when dispensing with elaborate service mechanisms, but need not feel compelled to invoke Section 105 unless the action truly concerns search, seizure, or property attachment abroad.

4. Complex Concepts Simplified

• Section 105 CrPC: Allows Indian courts to request or render international assistance for search, seizure, warrant issuance, and attachment of property in criminal matters. Operates through diplomatic channels and treaties (Letters Rogatory).
• Criminal Revision: A supervisory remedy under Sections 397-401 CrPC enabling High Courts or Sessions Courts to correct jurisdictional or legal errors by subordinate courts; no fresh evidence is usually taken.
• Closure Report: Police report stating no evidence against accused; the Magistrate may accept it or order further investigation.
• Anticipatory Bail: Pre-arrest bail under Section 438 CrPC; here, accused deposited ₹10 crores as a condition.
• Reciprocal Arrangement: Bilateral treaties or agreements (Mutual Legal Assistance Treaties, MLATs) facilitating cross-border judicial cooperation.

5. Conclusion

UBS Switzerland AG v. State of West Bengal crystallises a pragmatic principle: the sophisticated, treaty-driven machinery of Section 105 CrPC is not a prerequisite for serving notice on a foreign opposite party in criminal revision proceedings. By distinguishing investigative powers from appellate procedural steps, the Calcutta High Court aligns service requirements with the proportionality and practicality demanded by transnational justice. While insisting that lower courts furnish cogent reasons when bypassing Section 105, the judgment affirms that absence of such service—without demonstrable prejudice—does not vitiate revision proceedings. The ruling will likely streamline future cross-border criminal litigation in India, curtailing strategic attempts to invoke Section 105 as a dilatory tactic and reinforcing the centrality of fairness over formality.