The Prevention of Terrorism Act, 2002
THE PREVENTION OF TERRORISM ACT,
2002
Act No. 15 of
2002
An Act to make provisions for the prevention
of, and for dealing with, terrorist activities and for matters connected
therewith.
BE it enacted by Parliament in the Fifty-third
Year of the Republic of India as follows:—
CHAPTER I
Preliminary
1. Short title, application,
commencement, duration and savings.-
(1) This Act may be called the
Prevention of Terrorism Act, 2002.
(2) It extends to the whole of
India.
(3) Every person shall be liable
to punishment under this Act for every act or omission contrary to the
provisions thereof, of which he is held guilty in India.
(4) Any person who commits an
offence beyond India which is punishable under this Act shall be dealt
with according to the provisions of this Act in the same manner as if such
act had been committed in India.
(5) The provisions of this Act
apply also to—
(a) citizens of India outside
India;
(b) persons in the service of the
Government, wherever they may be; and
(c) persons on ships and
aircrafts, registered in India, wherever they may be.
(6) Save as otherwise provided in
respect of entries at serial numbers 24 and 25 of the Schedule to this
Act, it shall be deemed to have come into force on the 24th day of
October, 2001 and shall remain in force for a period of three years from
the date of its commencement, but its expiry under the operation of this
sub-section shall not affect—
(a) the previous operation of, or
anything duly done or suffered under this Act, or
(b) any right, privilege,
obligation or liability acquired, accrued or incurred under this Act,
or
(c) any penalty, forfeiture or
punishment incurred in respect of any offence under this Act,
or
(d) any investigation, legal
proceeding or remedy in respect of any such right, privilege, obligation,
liability, penalty, forfeiture or punishment as aforesaid,
and, any such investigation,
legal proceeding or remedy may be instituted, continued or enforced and
any such penalty, forfeiture or punishment may be imposed as if this Act
had not expired.
2.
Definitions.-
(1) In this Act, unless the
context otherwise requires,—
(a) "Code" means the Code of
Criminal Procedure, 1973 (2 of 1974);
(b) "Designated Authority" shall
mean such officer of the Central Government not below the rank of Joint
Secretary to the Government, or such officer of the State Government not
below the rank of Secretary to the Government, as the case may be, as may
be specified by the Central Government or, as the case may be, the State
Government, by a notification published in the Official
Gazette;
(c) "proceeds of terrorism" shall
mean all kinds of properties which have been derived or obtained from
commission of any terrorist act or have been acquired through funds
traceable to a terrorist act, and shall include cash irrespective of
person in whose name such proceeds are standing or in whose possession
they are found;
(d) "property" means property and
assets of every description, whether corporeal or incorporeal, movable or
immovable, tangible or intangible and deeds and instruments evidencing
title to, or interest in, such property or assets and includes bank
account;
(e) "Public Prosecutor" means a
Public Prosecutor or an Additional Public Prosecutor or a Special Public
Prosecutor appointed under section 28 and includes any person acting under
the directions of the Public Prosecutor;
(f) "Special Court" means a
Special Court constituted under section 23;
(g) "terrorist act" has the
meaning assigned to it in sub-section (1) of section 3, and the expression
"terrorist" shall be construed accordingly;
(h) "State Government", in
relation to a Union territory, means the Administrator thereof;
(i) words and expressions used
but not defined in this Act and defined in the Code shall have the
meanings respectively assigned to them in the Code.
(2) Any reference in this Act to
any enactment or any provision thereof shall, in relation to an area in
which such enactment or such provision is not in force, be construed as a
reference to the corresponding law or the relevant provision of the
corresponding law, if any, in force in that area.
CHAPTER II
Punishment for,
and measures for dealing with, terrorist activities
3. Punishment for terrorist
acts.-
(1) Whoever,—
(a) with intent to threaten the
unity, integrity, security or sovereignty of India or to strike terror in
the people or any section of the people does any act or thing by using
bombs, dynamite or other explosive substances or inflammable substances or
firearms or other lethal weapons or poisons or noxious gases or other
chemicals or by any other substances (whether biological or otherwise) of
a hazardous nature or by any other means whatsoever, in such a manner as
to cause, or likely to cause, death of, or injuries to any person or
persons or loss of, or damage to, or destruction of, property or
disruption of any supplies or services essential to the life of the
community or causes damage or destruction of any property or equipment
used or intended to be used for the defense of India or in connection with
any other purposes of the Government of India, any State Government or any
of their agencies, or detains any person and threatens to kill or injure
such person in order to compel the Government or any other person to do or
abstain from doing any act;
(b) is or continues to be a
member of an association declared unlawful under the Unlawful Activities
(Prevention) Act, 1967 (37 of 1967), or voluntarily does an act aiding or
promoting in any manner the objects of such association and in either case
is in possession of any unlicensed firearms, ammunition, explosive or
other instrument or substance capable of causing mass destruction and
commits any act resulting in loss of human life or grievous injury to any
person or causes significant damage to any property, commits a terrorist
act.
Explanation.—For the purposes of
this sub-section, "a terrorist act" shall include the act of raising funds
intended for the purpose of terrorism.
(2) Whoever commits a terrorist
act, shall,—
(a) if such act has resulted in
the death of any person, be punishable with death or imprisonment for life
and shall also be liable to fine;
(b) in any other case, be
punishable with imprisonment for a term which shall not be less than five
years but which may extend to imprisonment for life and shall also be
liable to fine.
(3) Whoever conspires or attempts
to commit, or advocates, abets, advises or incites or knowingly
facilitates the commission of, a terrorist act or any act preparatory to a
terrorist act, shall be punishable with imprisonment for a term which
shall not be less than five years but which may extend to imprisonment for
life and shall also be liable to fine.
(4) Whoever voluntarily harbors
or conceals, or attempts to harbour or conceal any person knowing that
such person is a terrorist shall be punishable with imprisonment for a
term which shall not be less than three years but which may extend to
imprisonment for life and shall also be liable to fine:
Provided that this sub-section
shall not apply to any case in which the harbour or concealment is by the
husband or wife of the offender.
(5) Any person who is a member of
a terrorist gang or a terrorist organisation, which is involved in
terrorist acts, shall be punishable with imprisonment for a term which may
extend to imprisonment for life or with fine which may extend to rupees
ten lakh or with both.
Explanation.—For the purposes of
this sub-section, "terrorist organisation" means an organisation which is
concerned with or involved in terrorism.
(6) Whoever knowingly holds any
property derived or obtained from commission of any terrorist act or has
been acquired through the terrorist funds shall be punishable with
imprisonment for a term which may extend to imprisonment for life or with
fine which may extend to rupees ten lakh or with both.
(7) Whoever threatens any person
who is a witness or any other person in whom such witness may be
interested, with violence, or wrongfully restrains or confines the
witness, or any other person in whom the witness may be interested, or
does any other unlawful act with the said intent, shall be punishable with
imprisonment which may extend to three years and fine.
4. Possession of certain
unauthorized arms, etc.-
Where any person is in
unauthorised possession of any—
(a) arms or ammunition specified
in columns (2) and (3) of Category I or Category III (a) of Schedule I to
the Arms Rules, 1962, in a notified area,
(b) bombs, dynamite or hazardous
explosive substances or other lethal weapons capable of mass destruction
or biological or chemical substances of warfare in any area, whether
notified or not, he shall be guilty of terrorist act notwithstanding
anything contained in any other law for the time being in force, and be
punishable with imprisonment for a term which may extend to imprisonment
for life or with fine which may extend to rupees ten lakh or with
both.
Explanation.—In this section,
"notified area" means such area as the State Government may, by
notification in the Official Gazette, specify.
5. Enhanced
penalties.-
(1) If any person with intent to
aid any terrorist contravenes any provision of, or any rule made under the
Explosives Act, 1884 (4 of 1884), the Explosive Substances Act, 1908 (6 of
1908), the Inflammable Substances Act, 1952 (20 of 1952) or the Arms Act,
1959 (54 of 1959), he shall, notwithstanding anything contained in any of
the aforesaid Acts or the rules made thereunder, be punishable with
imprisonment for a term which may extend to imprisonment for life and
shall also be liable to fine.
(2) For the purposes of this
section, any person who attempts to contravene or abets, or does any act
preparatory to the contravention of any provision of any law, rule or
order, shall be deemed to have contravened that provision, and the
provisions of sub-section (1) shall, in relation to such person, have
effect subject to the modification that the reference to "imprisonment for
life" shall be construed as a reference to "imprisonment for ten
years".
6. Holding of proceeds of
terrorism illegal.-
(1) No person shall hold or be in
possession of any proceeds of terrorism.
(2) Proceeds of terrorism,
whether held by a terrorist or by any other person and whether or not such
person is prosecuted or convicted under this Act, shall be liable to be
forfeited to the Central Government or the State Government, as the case
may be, in the manner provided under this Chapter.
7. Powers of investigating
officers and appeal against order of Designated Authority.-
(1) If an officer (not below the
rank of Superintendent of Police) investigating an offence committed under
this Act, has reason to believe that any property in relation to which an
investigation is being conducted, represents proceeds of terrorism, he
shall, with the prior approval in writing of the Director General of the
Police of the State in which such property is situated, make an order
seizing such property and where it is not practicable to seize such
property, make an order of attachment directing that such property shall
not be transferred or otherwise dealt with except with the prior
permission of the officer making such order, or of the Designated
Authority before whom the properties seized or attached are produced and a
copy of such order shall be served on the person concerned.
(2) For the removal of doubts, it
is hereby provided that where an organisation is declared as a terrorist
organisation under this Act and the investigating officer has reason to
believe that any person has custody of any property which is being used or
is intended to be used for the purpose of such terrorist organisation, he
may, by an order in writing, seize or attach such property.
(3) The investigating officer
shall duly inform the Designated Authority within forty-eight hours of the
seizure or attachment of such property.
(4) It shall be open to the
Designated Authority before whom the seized or attached properties are
produced either to confirm or revoke the order of attachment so
issued:
Provided that an opportunity of
making a representation by the person whose property is being attached
shall be given.
(5) In the case of immovable
property attached by the investigating officer, it shall be deemed to have
been produced before the Designated Authority, when the investigating
officer notifies his report and places it at the disposal of the
Designated Authority.
(6) The investigating officer may
seize and detain any cash to which this Chapter applies if he has
reasonable grounds for suspecting that—
(a) it is intended to be used for
the purposes of terrorism;
(b) it forms the whole or part of
the resources of an organisation declared as terrorist organisation under
this Act:
Provided that the cash seized
under this sub-section by the investigating officer shall be released not
later than the period of forty-eight hours beginning with the time when it
is seized unless the matter involving the cash is before the Designated
Authority and such Authority passes an order allowing its retention beyond
forty-eight hours.
Explanation.—For the purposes of
this sub-section, "cash" means—
(a) coins and notes in any
currency;
(b) postal orders;
(c) traveller’s
cheques;
(d) banker’s drafts;
and
(e) such other monetary
instruments as the Central Government or, as the case may be, the State
Government may specify by an order made in writing.
(7) Any person aggrieved by an
order made by the Designated Authority may prefer an appeal to the Special
Court and the Special Court may either confirm the order of attachment of
property or seizure so made or revoke such order and release the
property.
8. Forfeiture of proceeds of
terrorism.-
Where any property is seized or
attached on the ground that it constitutes proceeds of terrorism and the
Special Court is satisfied in this regard under sub-section (7) of section
7, it may order forfeiture of such property, whether or not the person
from whose possession it is seized or attached, is prosecuted in a Special
Court for an offence under this Act.
9. Issue of show cause notice
before forfeiture of proceeds of terrorism.-
(1) No order forfeiting any
proceeds of terrorism shall be made under section 8 unless the person
holding or in possession of such proceeds is given a notice in writing
informing him of the grounds on which it is proposed to forfeit the
proceeds of terrorism and such person is given an opportunity of making a
representation in writing within such reasonable time as may be specified
in the notice against the grounds of forfeiture and is also given a
reasonable opportunity of being heard in the matter.
(2) No order of forfeiture shall
be made under sub-section (1), if such person establishes that he is a
bona fide transferee of such proceeds for value without knowing that they
represent proceeds of terrorism.
(3) It shall be competent for the
Special Court to make an order in respect of property seized or
attached,—
(a) directing it to be sold if it
is a perishable property and the provisions of section 459 of the Code
shall, as nearly as may be practicable, apply to the net proceeds of such
sale;
(b) nominating any officer of the
Central or State Government, in the case of any other property, to perform
the function of the Administrator of such property subject to such
conditions as may be specified by the Special Court.
10. Appeal.-
(1) Any person aggrieved by an
order of forfeiture under section 8 may, within one month from the date of
the receipt of such order, appeal to the High Court within whose
jurisdiction, the Special Court, who passed the order appealed against, is
situated.
(2) Where an order under section
8 is modified or annulled by the High Court or where in a prosecution
instituted for the contravention of the provisions of this Act, the person
against whom an order of forfeiture has been made under section 8 is
acquitted, such property shall be returned to him and in either case if it
is not possible for any reason to return the forfeited property, such
person shall be paid the price therefor as if the property had been sold
to the Central Government with reasonable interest calculated from the day
of seizure of the property and such price shall be determined in the
manner prescribed.
11. Order of forfeiture not to
interfere with other punishments.-
The order of forfeiture made
under this Act by the Special Court, shall not prevent the infliction of
any other punishment to which the person affected thereby is liable under
this Act.
12. Claims by third
party.-
(1) Where any claim is preferred,
or any objection is made to the seizure of any property under section 7 on
the ground that such property is not liable to seizure, the Designated
Authority before whom such property is produced, shall proceed to
investigate the claim or objection:
Provided that no such
investigation shall be made where the Designated Authority considers that
the claim or objection is designed to cause unnecessary delay.
(2) In case claimant or objector
establishes that the property specified in the notice issued under section
9 is not liable to be forfeited under the Act, the said notice shall be
withdrawn or modified accordingly.
13. Powers of Designated
Authority.-
The Designated Authority, acting
under the provisions of this Act, shall have all the powers of a civil
court required for making a full and fair enquiry into the matter before
it.
14. Obligation to furnish
information.-
(1) Notwithstanding anything
contained in any other law, the officer investigating any offence under
this Act, with prior approval in writing of an officer not below the rank
of a Superintendent of Police, may require any officer or authority of the
Central Government or a State Government or a local authority or a bank,
or a company, or a firm or any other institution, establishment,
organisation or any individual to furnish information in their possession
in relation to such offence, on points or matters, where the investigating
officer has reason to believe that such information will be useful for, or
relevant to, the purposes of this Act.
(2) Failure to furnish the
information called for under sub-section (1), or deliberately furnishing
false information shall be punishable with imprisonment for a term which
may extend to three years or with fine or with both.
(3) Notwithstanding anything
contained in the Code, the offence under sub-section (1) shall be tried as
a summary case and the procedure prescribed in Chapter XXI of the said
Code [except sub-section (2) of section 262] shall be applicable
thereto.
15. Certain transfers to be
null and void.-
Where, after the issue of an
order under section 7 or issue of a notice under section 9, any property
referred to in the said order or notice is transferred by any mode
whatsoever, such transfer shall, for the purpose of the proceedings under
this Act, be ignored and if such property is subsequently forfeited, the
transfer of such property shall be deemed to be null and void.
16. Forfeiture of property of
certain persons.-
(1) Where any person is accused
of any offence under this Act, it shall be open to the Special Court
trying him to pass an order that all or any of the properties, movable or
immovable or both belonging to him, shall, during the period of such
trial, be attached, if not already attached under this Act.
(2) Where a person has been
convicted of any offence punishable under this Act, the Special Court may,
in addition to awarding any punishment, by order in writing, declare that
any property, movable or immovable or both, belonging to the accused and
specified in the order, shall stand forfeited to the Central Government or
the State Government, as the case may be, free from all
encumbrances.
17. Company to transfer shares
to Government.-
Where any shares in a company
stand forfeited to the Central Government or the State Government, as the
case may be, under this Act, then, the company shall, on receipt of the
order of the Special Court, notwithstanding anything contained in the
Companies Act, 1956 (1 of 1956), or the articles of association of the
company, forthwith register the Central Government or the State
Government, as the case may be, as the transferee of such
shares.
CHAPTER III
Terrorist
organisations
18. Declaration of an
organization as a terrorist organization.-
(1) For the purposes of this Act,
an organisation is a terrorist organisation if—
(a) it is listed in the Schedule,
or
(b) it operates under the same
name as an organisation listed in that Schedule.
(2) The Central Government may by
order, in the Official Gazette,—
(a) add an organisation to the
Schedule;
(b) remove an organisation from
that Schedule;
(c) amend that Schedule in some
other way.
(3) The Central Government may
exercise its power under clause (a) of sub-section (2) in respect of an
organisation only if it believes that it is involved in terrorism.
(4) For the purposes of
sub-section (3), an organisation shall be deemed to be involved in
terrorism if it—
(a) commits or participates in
acts of terrorism,
(b) prepares for
terrorism,
(c) promotes or encourages
terrorism, or
(d) is otherwise involved in
terrorism.
19. Denotification of a terrorist
organization.-
(1) An application may be made to
the Central Government for the exercise of its power under clause (b) of
sub-section (2) of section 18 to remove an organisation from the
Schedule.
(2) An application may be made
by—
(a) the organisation,
or
(b) any person affected by
inclusion of the organisation in the Schedule as a terrorist
organisation.
(3) The Central Government may
make rules to prescribe the procedure for admission and disposal of an
application made under this section.
(4) Where an application under
sub-section (1) has been refused, the applicant may apply for a review to
the Review Committee constituted by the Central Government under
sub-section (1) of section 60 within one month from the date of receipt of
the order by the applicant.
(5) The Review Committee may
allow an application for review against refusal to remove an organisation
from the Schedule, if it considers that the decision to refuse was flawed
when considered in the light of the principles applicable on an
application for judicial review.
(6) Where the Review Committee
allows review under sub-section (5) by or in respect of an organisation,
it may make an order under this sub-section.
(7) Where an order is made under
sub-section (6), the Central Government shall, as soon as the certified
copy of the order is received by it, make an order removing the
organisation from the list in the Schedule.
20. Offence relating to
membership of a terrorist organization.-
(1) A person commits an offence
if he belongs or professes to belong to a terrorist
organisation:
Provided that this sub-section
shall not apply where the person charged is able to prove—
(a) that the organisation was not
declared as a terrorist organisation at the time when he became a member
or began to profess to be a member; and
(b) that he has not taken part in
the activities of the organisation at any time during its inclusion in the
Schedule as a terrorist organisation.
(2) A person guilty of an offence
under this section shall be liable, on conviction, to imprisonment for a
term not exceeding ten years or with fine or with both.
21. Offence relating to support
given to a terrorist organization.-
(1) A person commits an offence
if—
(a) he invites support for a
terrorist organisation, and
(b) the support is not, or is not
restricted to, the provision of money or other property within the meaning
of section 22.
(2) A person commits an offence
if he arranges, manages or assists in arranging or managing a meeting
which he knows is—
(a) to support a terrorist
organisation, or
(b) to further the activities of
a terrorist organisation, or
(c) to be addressed by a person
who belongs or professes to belong to a terrorist organisation.
(3) A person commits an offence
if he addresses a meeting for the purpose of encouraging support for a
terrorist organisation or to further its activities.
(4) A person guilty of an offence
under this section shall be liable on conviction, to imprisonment for a
term not exceeding ten years or with fine or with both.
Explanation.—For the purposes of
this section, the expression "meeting" means a meeting of three or more
persons whether or not the public are admitted.
22. Fund raising for a
terrorist organization to be an offence.-
(1) A person commits an offence
if he—
(a) invites another to provide
money or other property, and
(b) intends that it should be
used, or has reasonable cause to suspect that it may be used, for the
purposes of terrorism.
(2) A person commits an offence
if he—
(a) receives money or other
property, and
(b) intends that it should be
used, or has reasonable cause to suspect that it may be used, for the
purposes of terrorism.
(3) A person commits an offence
if he—
(a) provides money or other
property, and
(b) knows or has reasonable cause
to suspect that it will or may be used for the purposes of
terrorism.
(4) In this section, a reference
to the provision of money or other property is a reference to its being
given, lent or otherwise made available, whether or not for
consideration.
(5) A person guilty of an offence
under this section shall be liable on conviction, to imprisonment for a
term not exceeding fourteen years or with fine or with both.
CHAPTER IV
Special
Courts
23. Special
Courts.-
(1) The Central Government or a
State Government may, by notification in the Official Gazette, constitute
one or more Special Courts for such area or areas, or for such case or
class or group of cases, as may be specified in the
notification.
(2) Where a notification
constituting a Special Court for any area or areas or for any case or
class or group of cases is issued by the Central Government under
sub-section (1), and a notification constituting a Special Court for the
same area or areas or for the same case or class or group of cases has
also been issued by the State Government under that sub-section, the
Special Court constituted by the Central Government, whether the
notification constituting such Court is issued before or after the issue
of the notification constituting the Special Court by the State
Government, shall have, and the Special Court constituted by the State
Government shall not have, jurisdiction to try any offence committed in
that area or areas or, as the case may be, the case or class or group of
cases and all cases pending before any Special Court constituted by the
State Government shall stand transferred to the Special Court constituted
by the Central Government.
(3) Where any question arises as
to the jurisdiction of any Special Court, it shall be referred to the
Central Government whose decision in the matter shall be final.
(4) A Special Court shall be
presided over by a judge to be appointed by the Central Government or, as
the case may be, the State Government, with the concurrence of the Chief
Justice of the High Court.
(5) The Central Government or, as
the case may be, the State Government may also appoint, with the
concurrence of the Chief Justice of the High Court, additional judges to
exercise jurisdiction of a Special Court.
(6) A person shall not be
qualified for appointment as a judge or an additional judge of a Special
Court unless he is, immediately before such appointment, a sessions judge
or an additional sessions judge in any State.
(7) For the removal of doubts, it
is hereby provided that the attainment, by a person appointed as a judge
or an additional judge of a Special Court, of the age of superannuation
under the rules applicable to him in the service to which he belongs,
shall not affect his continuance as such judge or additional
judge.
(8) Where any additional judge or
additional judges is or are appointed in a Special Court, the judge of the
Special Court may, from time to time, by general or special order, in
writing, provide for the distribution of business of the Special Court
among all judges including himself and the additional judge or additional
judges and also for the disposal of urgent business in the event of his
absence or the absence of any additional judge.
24. Place of
sitting.-
A Special Court may, on its own
motion, or on an application made by the Public Prosecutor and if it
considers it expedient or desirable so to do, sit for any of its
proceedings at any place other than its ordinary place of
sitting:
Provided that nothing in this
section shall be construed to change the place of sitting of a Special
Court constituted by a State Government to any place outside that
State.
25. Jurisdiction of Special
Courts.-
(1) Notwithstanding anything
contained in the Code, every offence punishable under any provision of
this Act shall be triable only by the Special Court within whose local
jurisdiction it was committed or, as the case may be, by the Special Court
constituted for trying such offence under section 23.
(2) If, having regard to the
exigencies of the situation prevailing in a State,—
(a) it is not possible to have a
fair, impartial or speedy trial; or
(b) it is not feasible to have
the trial without occasioning the breach of peace or grave risk to the
safety of the accused, the witnesses, the Public Prosecutor and a judge of
the Special Court or any of them; or
(c) it is not otherwise in the
interests of justice,
the Supreme Court may transfer
any case pending before a Special Court to any other Special Court within
that State or in any other State and the High Court may transfer any case
pending before a Special Court situated in that State to any other Special
Court within the State.
(3) The Supreme Court or the High
Court, as the case may be, may act under this section either on the
application of the Central Government or a party interested and any such
application shall be made by motion, which shall, except when the
applicant is the Attorney-General of India, be supported by an affidavit
or affirmation.
26. Power of Special Courts
with respect to other offences.-
(1) When trying any offence, a
Special Court may also try any other offence with which the accused may,
under the Code, be charged at the same trial if the offence is connected
with such other offence.
(2) If, in the course of any
trial under this Act of any offence, it is found that the accused person
has committed any other offence under this Act or under any other law, the
Special Court may convict such person of such other offence and pass any
sentence or award punishment authorised by this Act or such rule or, as
the case may be, under such other law.
27. Power to direct for
samples, etc.-
(1) When a police officer
investigating a case requests the Court of a Chief Judicial Magistrate or
the Court of a Chief Metropolitan Magistrate in writing for obtaining
samples of handwriting, finger-prints, foot-prints, photographs, blood,
saliva, semen, hair, voice of any accused person, reasonably suspected to
be involved in the commission of an offence under this Act, it shall be
lawful for the Court of a Chief Judicial Magistrate or the Court of a
Chief Metropolitan Magistrate to direct that such samples be given by the
accused person to the police officer either through a medical practitioner
or otherwise, as the case may be.
(2) If any accused person refuses
to give samples as provided in sub-section (1), the Court shall draw
adverse inference against the accused.
28. Public
Prosecutors.-
(1) For every Special Court, the
Central Government or, as the case may be, the State Government, shall
appoint a person to be the Public Prosecutor and may appoint one or more
persons to be the Additional Public Prosecutor or Additional Public
Prosecutors:
Provided that the Central
Government or, as the case may be, the State Government, may also appoint
for any case or class or group of cases, a Special Public
Prosecutor.
(2) A person shall not be
qualified to be appointed as a Public Prosecutor or an Additional Public
Prosecutor or a Special Public Prosecutor under this section unless he has
been in practice as an Advocate for not less than seven years or has held
any post, for a period of not less than seven years, under the Union or a
State, requiring special knowledge of law.
(3) Every person appointed as a
Public Prosecutor or an Additional Public Prosecutor or a Special Public
Prosecutor under this section shall be deemed to be a Public Prosecutor
within the meaning of clause (u) of section 2 of the Code, and the
provisions of the Code shall have effect accordingly.
29. Procedure and powers of
Special Courts.-
(1) Subject to the provisions of
section 50, a Special Court may take cognizance of any offence, without
the accused being committed to it for trial, upon receiving a complaint of
facts that constitute such offence or upon a police report of such
facts.
(2) Where an offence triable by a
Special Court is punishable with imprisonment for a term not exceeding
three years or with fine or with both, the Special Court may,
notwithstanding anything contained in sub-section (1) of section 260 or
section 262 of the Code, try the offence in a summary way in accordance
with the procedure prescribed in the Code and the provisions of sections
263 to 265 of the Code, shall so far as may be, apply to such
trial:
Provided that when, in the course
of a summary trial under this sub-section, it appears to the Special Court
that the nature of the case is such that it is undesirable to try it in a
summary way, the Special Court shall recall any witnesses who may have
been examined and proceed to re-hear the case in the manner provided by
the provisions of the Code for the trial of such offence and the said
provisions shall apply to and in relation to a Special Court as they apply
to and in relation to a Magistrate:
Provided further that in the case
of any conviction in a summary trial under this section, it shall be
lawful for a Special Court to pass a sentence of imprisonment for a term
not exceeding one year and with fine which may extend to rupees five
lakh.
(3) Subject to the other
provisions of this Act, a Special Court shall, for the purpose of trial of
any offence, have all the powers of a Court of Session and shall try such
offence as if it were a Court of Session so far as may be in accordance
with the procedure prescribed in the Code for the trial before a Court of
Session.
(4) Subject to the other
provisions of this Act, every case transferred to a Special Court under
section 25 shall be dealt with as if such case had been transferred under
section 406 of the Code to such Special Court.
(5) Notwithstanding anything
contained in the Code, but subject to the provisions of section 299 of the
Code, a Special Court may, if it thinks fit and for reasons to be recorded
by it, proceed with the trial in the absence of the accused or his pleader
and record the evidence of any witness, subject to the right of the
accused to recall the witness for cross-examination.
30. Protection of
witnesses.-
(1) Notwithstanding anything
contained in the Code, the proceedings under this Act may, for reasons to
be recorded in writing, be held in camera if the Special Court so
desires.
(2) A Special Court, if on an
application made by a witness in any proceeding before it or by the Public
Prosecutor in relation to such witness or on its own motion, is satisfied
that the life of such witness is in danger, it may, for reasons to be
recorded in writing, take such measures as it deems fit for keeping the
identity and address of such witness secret.
(3) In particular, and without
prejudice to the generality of the provisions of sub-section (2), the
measures which a Special Court may take under that sub-section may
include—
(a) the holding of the
proceedings at a place to be decided by the Special Court;
(b) the avoiding of the mention
of the names and addresses of the witnesses in its orders or judgments or
in any records of the case accessible to public;
(c) the issuing of any directions
for securing that the identity and address of the witnesses are not
disclosed;
(d) a decision that it is in the
public interest to order that all or any of the proceedings pending before
such a Court shall not be published in any manner.
(4) Any person who contravenes
any decision or direction issued under sub-section (3) shall be punishable
with imprisonment for a term which may extend to one year and with fine
which may extend to one thousand rupees.
31. Trial by Special Courts to
have precedence.-
The trial under this Act of any
offence by a Special Court shall have precedence over the trial of any
other case against the accused in any other court (not being a Special
Court) and shall be concluded in preference to the trial of such other
case and accordingly the trial of such other case shall remain in
abeyance.
32. Certain confessions made
to police officers to be taken into consideration.-
(1) Notwithstanding anything in
the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to
the provisions of this section, a confession made by a person before a
police officer not lower in rank than a Superintendent of Police and
recorded by such police officer either in writing or on any mechanical or
electronic device like cassettes, tapes or sound tracks from out of which
sound or images can be reproduced, shall be admissible in the trial of
such person for an offence under this Act or the rules made
thereunder.
(2) A police officer shall,
before recording any confession made by a person under sub-section (1),
explain to such person in writing that he is not bound to make a
confession and that if he does so, it may be used against him:
Provided that where such person
prefers to remain silent, the police officer shall not compel or induce
him to make any confession.
(3) The confession shall be
recorded in an atmosphere free from threat or inducement and shall be in
the same language in which the person makes it.
(4) The person from whom a
confession has been recorded under sub-section (1), shall be produced
before the Court of a Chief Metropolitan Magistrate or the Court of a
Chief Judicial Magistrate along with the original statement of confession,
written or recorded on mechanical or electronic device within forty-eight
hours.
(5) The Chief Metropolitan
Magistrate or the Chief Judicial Magistrate, shall, record the statement,
if any, made by the person so produced and get his signature or thumb
impression and if there is any complaint of torture, such person shall be
directed to be produced for medical examination before a Medical Officer
not lower in rank than an Assistant Civil Surgeon and thereafter, he shall
be sent to judicial custody.
33. Power to transfer cases to
regular courts.-
Where, after taking cognizance of
any offence, a Special Court is of the opinion that the offence is not
triable by it, it shall, notwithstanding that it has no jurisdiction to
try such offence, transfer the case for the trial of such offence to any
court having jurisdiction under the Code and the Court to which the case
is transferred may proceed with the trial of the offence as if it had
taken cognizance of the offence.
34. Appeal.-
(1) Notwithstanding anything
contained in the Code, an appeal shall lie from any judgment, sentence or
order, not being an interlocutory order, of a Special Court to the High
Court both on facts and on law.
Explanation.—For the purposes of
this section, "High Court" means a High Court within whose jurisdiction, a
Special Court which passed the judgment, sentence or order, is
situated.
(2) Every appeal under
sub-section (1) shall be heard by a bench of two Judges of the High
Court.
(3) Except as aforesaid, no
appeal or revision shall lie to any court from any judgment, sentence or
order including an interlocutory order of a Special Court.
(4) Notwithstanding anything
contained in sub-section (3) of section 378 of the Code, an appeal shall
lie to the High Court against an order of the Special Court granting or
refusing bail.
(5) Every appeal under this
section shall be preferred within a period of thirty days from the date of
the judgment, sentence or order appealed from:
Provided that the High Court may
entertain an appeal after the expiry of the said period of thirty days if
it is satisfied that the appellant had sufficient cause for not preferring
the appeal within the period of thirty days.
35. Transitional provisions
and transfer of pending proceedings.-
(1) The jurisdiction conferred by
this Act on a Special Court, shall, until a Special Court is constituted
under section 23, in the case of any offence punishable under this Act,
notwithstanding anything contained in the Code, be exercised by the Court
of Session of the division in which such offence has been committed and it
shall have all the powers and follow the procedure provided under this
Chapter.
(2) On and from the date when the
Special Court is constituted under section 23, every trial under the
provisions of this Act, which would have been required to be held before
the Special Court, shall stand transferred to that Court on the date on
which it is constituted.
CHAPTER V
Interception of
communication in certain cases
36.
Definitions.-
In this Chapter, unless the
context otherwise requires,—
(a) "electronic communication"
means any transmission of signs, signals, writings, images, sounds, data
or intelligence of any nature transmitted in whole or in part by a wire,
radio, electromagnetic, photo electronic or photo optical system that
affects inland or foreign commerce but does not include—
(i) the radio portion of a
cordless telephone communication that is transmitted between the wireless
telephone hand-set and the base unit; or
(ii) any wire or oral
communication; or
(iii) any communication made
through a tone only paging device; or
(iv) any communication from a
tracking device;
(b) "intercept" means the aural
or other acquisition of the contents by wire, electronic or oral
communication through the use of any electronic, mechanical or other
device;
(c) "oral communication" means
any oral communication uttered by a person exhibiting an expectation that
such communication is not subject to interception under circumstances
justifying such expectation but such term does not include any electronic
communication;
(d) "wire communication" means
any aural transmission made in whole or part through the use of facilities
for the transmission of communications by the aid of wire, cable or other
like connection between the point of origin and the point of connection,
between the point of origin and the point of reception (including the use
of such connection in switching station) and such term includes any
electronic storage of such communication.
37. Appointment of Competent
Authority.-
The Central Government or the
State Government, as the case may be, may appoint an officer not below the
rank of Secretary to the Government in the case of State Government and
not below the rank of Joint Secretary to the Government in the case of
Central Government, to be the Competent Authority for the purposes of this
Chapter.
38. Application for authorization
of interception of wire, electronic or oral communication.-
(1) A police officer not below
the rank of Superintendent of Police supervising the investigation of any
terrorist act under this Act may submit an application in writing to the
Competent Authority for an order authorising or approving the interception
of wire, electronic or oral communication by the investigating officer
when he believes that such interception may provide, or has provided
evidence of any offence involving a terrorist act.
(2) Each application shall
include the following information:—
(a) the identity of the
investigating officer making the application, and the head of the
department authorising the application;
(b) a statement of the facts and
circumstances relied upon by the applicant to justify his belief that an
order should be issued, including—
(i) details as to the offence of
terrorist act that has been, is being, or is about to be
committed;
(ii) a particular description of
the nature and location of the facilities from which or the place where
the communication is to be intercepted;
(iii) a particular description of
the type of communications sought to be intercepted; and
(iv) the identity of the person,
if known, committing the terrorist act whose communications are to be
intercepted;
(c) a statement of the period of
time for which the interception is required to be maintained, if the
nature of the enquiry is such that the authorisation of interception
should not automatically terminate after the described type of
communication has been first obtained;
(d) a particular description of
facts establishing probable cause to believe that additional
communications of the same type will occur thereafter; and
(e) where the application is for
the extension of an order, a statement setting forth the results thus far
obtained from the interception, or a reasonable explanation of the failure
to obtain such results.
(3) The Competent Authority may
require the applicant to furnish additional oral or documentary evidence
in support of the application.
39. Decision by Competent
Authority on application for interception
(1) Upon such application, the
Competent Authority may reject the application, or issue an order, as
requested or as modified, authorising or approving interception of wire,
electronic or oral communications, if the Competent Authority determines
on the basis of the facts submitted by the applicant that—
(a) there is a probable cause for
belief that an individual is committing, has committed, or is about to
commit, a particular offence described and made punishable under sections
3 and 4 of this Act;
(b) there is a probable cause of
belief that particular communications concerning that offence may be
obtained through such interception;
(c) there is probable cause of
belief that the facilities from which, or the place where, the wire,
electronic or oral communications are to be intercepted are being used or
are about to be used, in connection with the commission of such offence,
leased to, or are listed in, the name of or commonly used by such
person.
(2) Each order by the Competent
Authority authorising or approving the interception of any wire,
electronic or oral communication under this section shall
specify—
(a) the identity of the person,
if known, whose communications are to be intercepted;
(b) the nature and location of
the communication facilities as to which, or the place where, authority to
intercept is granted;
(c) a particular description of
the type of communication sought to be intercepted, and a statement of the
particular offence to which it relates;
(d) the identity of the agency
authorised to intercept the communications, and the person authorising the
application; and
(e) the period of time during
which such interception is authorised, including a statement as to whether
or not the interception shall automatically terminate after the described
communication has been first obtained.
40. Submission of order of
interception to Review Committee.
(1) The Competent Authority
shall, immediately after passing the order under sub-section (1) of
section 39, but in any case not later than seven days from the passing of
the order, submit a copy of the same to the Review Committee constituted
under section 60 alongwith all the relevant underlying papers, record and
his own findings, in respect of the said order, for consideration and
approval of the order by the Review Committee.
(2) An order authorising the
interception of a wire, electronic or oral communication under this
section shall, upon request of the applicant, direct that a provider of
wire or electronic communication service, landlord, custodian or other
person shall furnish to the applicant forthwith all information,
facilities and technical assistance necessary to accomplish the
interception unobtrusively and with a minimum of interference with the
services that such service provider, landlord, custodian or person is
providing to the person whose communications are to be
intercepted.
41. Duration of an order of
inception, etc.
(1) No order issued under this
section may authorise or approve the interception of any wire, electronic
or oral communication for any period longer than is necessary to achieve
the objective of the authorisation, nor in any event longer than sixty
days and such sixty days period shall begin on the day immediately
preceding the day on which the investigating officer first begins to
conduct an interception under the order or ten days after order is issued
whichever is earlier.
(2) The extension of an order may
be granted, but only upon an application for an extension made in
accordance with sub-section (1) of section 38 and the Competent Authority
making the findings required by sub-section (1) of section 39, and the
period of such extension shall be no longer than the Competent Authority
deems necessary to achieve the purposes for which it was granted and in no
event for longer than sixty days at a time.
(3) Every order and extension
thereof shall contain a provision that the authorisation to intercept
shall be executed as soon as practicable and shall be conducted in such
manner as to minimise the interception of communications not otherwise
subject to interception under this section and shall terminate upon
attainment of the authorised objective, or in any event on the expiry of
the period of said order or extension thereof.
42. Authority competent to
carry out interception.
(1) An interception under this
Chapter may be conducted in whole or in part by a public servant, acting
under the supervision of the investigating officer authorised to conduct
the interception.
(2) Whenever an order authorising
an interception is issued pursuant to this section, the order may require
reports to be made to the Competent Authority who issued the order showing
that progress has been made towards achievement of the authorised
objective and the need for continued interception and such report shall be
made at such intervals as the Competent Authority may require.
43. Interception of
communication in emergency.
(1) Notwithstanding anything
contained in any other provision of this Chapter, an officer not below the
rank of Additional Director General of Police or a police officer of
equivalent rank who reasonably determines that—
(a) an emergency situation exists
that involves—
(i) immediate danger of death or
serious physical injury to any person; or
(ii) conspiratorial activities
threatening the security or interest of the State; or
(iii) conspiratorial activities,
characteristic of a terrorist act, that requires a wire, electronic or
oral communication to be intercepted before an order from the Competent
Authority authorising such interception can, with due diligence, be
obtained; and
(b) there are grounds on which an
order should be issued under this section to authorise such interception,
may authorise, in writing, the
investigating officer to intercept such wire, electronic or oral
communication, if an application for an order approving the interception
is made in accordance with the provisions of sub-sections (1) and (2) of
section 38 within forty-eight hours after the interception has occurred,
or begins to occur.
(2) In the absence of an order
approving the interception made under sub-section (1), such interception
shall immediately terminate when the communication sought is obtained or
when the application for the order is rejected, whichever is earlier; and
in the event of an application for permitting interception being rejected
under sub-section (1) of section 39 or an application under sub-section
(1) of this section for approval being rejected, or in any other case
where the interception is terminated without an order having been issued,
the contents of any wire, electronic or oral communication intercepted
shall be treated as having been obtained in violation of this
section.
44. Protection of information
collected.
(1) The contents of any wire,
electronic or oral communication intercepted by any means authorised by
this Chapter shall, as far as possible, be recorded on tape or wire or
other comparable device and shall be done in such manner as to protect the
recording from editing or other alterations.
(2) Immediately upon the
expiration of the period of order, or extension thereof, such recording
shall be made available to the Competent Authority issuing such order and
shall be sealed under his directions and kept in the custody of such
person or authority as the Competent Authority orders, and such recordings
shall not be destroyed except upon an order of the Competent Authority and
in any event shall be kept for ten years.
(3) Applications made and orders
issued under this Chapter shall be sealed by the Competent Authority and
custody of the applications and orders shall be kept in such manner as the
Competent Authority directs, and shall not be destroyed except on an order
of the Competent Authority, and in any event shall be kept for ten
years.
45. Admissibility of evidence
collected through the interception of communications.
Notwithstanding anything in the
Code or in any other law for the time being in force, the evidence
collected through the interception of wire, electronic or oral
communication under this Chapter shall be admissible as evidence against
the accused in the Court during the trial of a case:
Provided that, the contents of
any wire, electronic or oral communication intercepted pursuant to this
Chapter or evidence derived therefrom shall not be received in evidence or
otherwise disclosed in any trial, hearing or other proceeding in any court
unless each accused has been furnished with a copy of the order of the
Competent Authority, and accompanying application, under which the
interception was authorised or approved not less than ten days before
trial, hearing or proceeding:
Provided further that, the period
of ten days may be waived by the judge trying the matter, if he comes to
the conclusion that it was not possible to furnish the accused with the
above information ten days before the trial, hearing or proceeding and
that the accused will not be prejudiced by the delay in receiving such
information.
46. Review of authorization
order.
(1) The Review Committee
constituted by the Central Government or the State Government, as the case
may be, shall review every order passed by the Competent Authority under
section 39.
(2) Every order passed by the
Competent Authority under section 39, or disapproved by the officer under
section 43, shall be placed before the Review Committee, which shall be
considered by the Review Committee within ten days after its receipt, to
decide whether the order was necessary, reasonable and
justified.
(3) The Review Committee, after
examining the entire record and holding such enquiry, if any, deemed
necessary may, by order in writing, either approve the order passed by the
Competent Authority or may issue order disapproving the same.
(4) On issue of an order of
disapproval by the Review Committee, the interception, if any, already
commenced shall be forthwith discontinued and the intercepted
communication, if any, in the form of tape, wire or other device shall,
thereupon, not be admissible as evidence in any case and shall be directed
to be destroyed.
47. Interception and
disclosure of wire, electronic or oral communications
prohibited.
Except as otherwise specifically
provided in section 39, any police officer who—
(a) intentionally intercepts,
endeavours to intercept, or procures any other person to intercept or
endeavour to intercept any wire, electronic or oral
communication;
(b) intentionally uses,
endeavours to use, or procures any other person to use or endeavours to
use any electronic, mechanical or other device to intercept any oral
communication when—
(i) such device is affixed to, or
otherwise transmits a signal through a wire, cable, or other like
connection used in wire communication; or
(ii) such device transmits
communications by radio, or interferes with the transmission of such
communication;
(c) intentionally discloses, or
endeavours to disclose, to any other person the contents of any wire,
electronic or oral communication, knowing or having reason to know that
the information was obtained through the interception of a wire,
electronic or oral communication in violation of this Chapter;
(d) intentionally uses, or
endeavours to use, the contents of any wire, electronic or oral
communication, knowing or having reason to know that the information was
obtained through the interception of a wire, electronic or oral
communication in violation of this Chapter;
(e) intentionally discloses, or
endeavours to disclose, to any other unauthorised person the contents of
any wire, electronic or oral communication, intercepted by means
authorised by section 39;
(f) intentionally continues the
interception of wire, electronic or oral communication after the issue of
an order of rejection by the Competent Authority under this Chapter;
(g) intentionally continues the
interception of wire, electronic or oral communication after the issue of
an order of disapproval by the Review Committee under sub-section (3) of
section 46,
shall for such violation be
punishable with imprisonment for a term which may extend to one year and
with fine up to rupees fifty thousand.
48. Annual report of
interceptions.
(1) The Central Government and
the State Government, as the case may be, shall cause an annual report to
be prepared giving a full account of—
(a) the number of applications
for authorisation of interceptions received by the Competent Authority
from the Police Department in which prosecutions have been
launched;
(b) the number of such
applications permitted or rejected;
(c) the number of interceptions
carried out in emergency situations and the number of approvals granted or
rejected in such matters;
(d) the number of prosecutions
launched based on such interceptions and convictions resulting from such
interceptions, along with an explanatory memorandum giving general
assessment of the utility and importance of the interceptions
authorised.
(2) An annual report shall be
laid by the State Government before the State Legislature within three
months of the completion of every calendar year:
Provided that, if the State
Government is of the opinion that the inclusion of any matter in the
annual report would be prejudicial to the security of the State or to the
prevention or detection of any terrorist act, the State Government may
exclude such matter from being included in such annual report.
(3) An annual report shall be
laid by the Central Government before each House of Parliament within
three months of the completion of every calendar year:
Provided that, if the Central
Government is of the opinion that the inclusion of any matter in the
annual report would be prejudicial to the security of the country or to
the prevention or detection of any terrorist act, the Central Government
may exclude such matter from being included in such annual report.
CHAPTER VI
Miscellaneous
49. Modified application of
certain provisions of the Code.
(1) Notwithstanding anything
contained in the Code or any other law, every offence punishable under
this Act shall be deemed to be a cognizable offence within the meaning of
clause (c) of section 2 of the Code, and "cognizable case" as defined in
that clause shall be construed accordingly.
(2) Section 167 of the Code shall
apply in relation to a case involving an offence punishable under this Act
subject to the modification that in sub-section (2),—
(a) the references to "fifteen
days", "ninety days" and "sixty days", wherever they occur, shall be
construed as references to "thirty days", "ninety days" and "ninety days",
respectively; and
(b) after the proviso, the
following provisos shall be inserted, namely:—
"Provided further that if it is
not possible to complete the investigation within the said period of
ninety days, the Special Court shall extend the said period up to one
hundred and eighty days, on the report of the Public Prosecutor indicating
the progress of the investigation and the specific reasons for the
detention of the accused beyond the said period of ninety days:
Provided also that if the police
officer making the investigation under this Act, requests, for the
purposes of investigation, for police custody from judicial custody of any
person from judicial custody, he shall file an affidavit stating the
reasons for doing so and shall also explain the delay, if any, for
requesting such police custody.".
(3) Section 268 of the Code shall
apply in relation to a case involving an offence punishable under this Act
subject to the modification that—
(a) the reference in sub-section
(1) thereof—
(i) to "the State Government"
shall be construed as a reference to "the Central Government or the State
Government",
(ii) to "order of the State
Government" shall be construed as a reference to "order of the Central
Government or the State Government, as the case may be"; and
(b) the reference in sub-section
(2) thereof, to "the State Government" shall be construed as a reference
to "the Central Government or the State Government, as the case may
be".
(4) Sections 366, 367 and 371 of
the Code shall apply in relation to a case involving an offence triable by
a Special Court subject to the modification that the reference to "Court
of Session", wherever occurring therein, shall be construed as the
reference to "Special Court".
(5) Nothing in section 438 of the
Code shall apply in relation to any case involving the arrest of any
person accused of having committed an offence punishable under this
Act.
(6) Notwithstanding anything
contained in the Code, no person accused of an offence punishable under
this Act shall, if in custody, be released on bail or on his own bond
unless the Court gives the Public Prosecutor an opportunity of being
heard.
(7) Where the Public Prosecutor
opposes the application of the accused to release on bail, no person
accused of an offence punishable under this Act or any rule made
thereunder shall be released on bail until the Court is satisfied that
there are grounds for believing that he is not guilty of committing such
offence:
Provided that after the expiry of
a period of one year from the date of detention of the accused for an
offence under this Act, the provisions of sub-section (6) of this section
shall apply.
(8) The restrictions on granting
of bail specified in sub-sections (6) and (7) are in addition to the
restrictions under the Code or any other law for the time being in force
on granting of bail.
(9) Notwithstanding anything
contained in sub-sections (6), (7) and (8), no bail shall be granted to a
person accused of an offence punishable under this Act, if he is not an
Indian citizen and has entered the country unauthorisedly or illegally
except in very exceptional circumstances and for reasons to be recorded in
writing.
50. Cognizance of
offences.
No court shall take cognizance of
any offence under this Act without the previous sanction of the Central
Government or, as the case may be, the State Government.
51. Officers competent to
investigate offences under this Act.
Notwithstanding anything
contained in the Code, no police officer,—
(a) in the case of the Delhi
Special Police Establishment, below the rank of a Deputy Superintendent of
Police or a police officer of equivalent rank;
(b) in the metropolitan areas of
Mumbai, Kolkata, Chennai and Ahmedabad and any other metropolitan area
notified as such under sub-section (1) of section 8 of the Code, below the
rank of an Assistant Commissioner of Police;
(c) in any other case not
relatable to clause (a) or clause (b), below the rank of a Deputy
Superintendent of Police or a police officer of an equivalent
rank,
shall investigate any offence
punishable under this Act.
52. Arrest.
(1) Where a police officer
arrests a person, he shall prepare a custody memo of the person arrested.
(2) The person arrested shall be
informed of his right to consult a legal practitioner as soon as he is
brought to the police station.
(3) Whenever any person is
arrested, information of his arrest shall be immediately communicated by
the police officer to a family member or in his absence to a relative of
such person by telegram, telephone or by any other means and this fact
shall be recorded by the police officer under the signature of the person
arrested.
(4) The person arrested shall be
permitted to meet the legal practitioner representing him during the
course of interrogation of the accused person:
Provided that nothing in this
sub-section shall entitle the legal practitioner to remain present
throughout the period of interrogation.
53. Presumption as to offences
under section 3.
(1) In a prosecution for an
offence under sub-section (1) of section 3, if it is proved—
(a) that the arms or explosives
or any other substances specified in section 4 were recovered from the
possession of the accused and there is reason to believe that such arms or
explosives or other substances of a similar nature, were used in the
commission of such offence; or
(b) that the finger-prints of the
accused were found at the site of the offence or on anything including
arms and vehicles used in connection with the commission of such offence,
the Special Court shall draw
adverse inference against the accused.
(2) In a prosecution for an
offence under sub-section (3) of section 3, if it is proved that the
accused rendered any financial assistance to a person, having knowledge
that such person is accused of, or reasonably suspected of, an offence
under that section, the Special Court shall draw adverse inference against
the accused.
54. Bar of jurisdiction of
courts, etc.
No civil court or other authority
shall have or, be entitled to, exercise any jurisdiction, powers or
authority in relation to the matters referred to in sections 19 and 40 of
the Act.
55. Saving.
(1) Nothing in this Act shall
affect the jurisdiction exercisable by, or the procedure applicable to,
any court or other authority under any law relating to the naval, military
or air forces or other armed forces of the Union.
(2) For the removal of doubts, it
is hereby declared that for the purposes of any such law as is referred to
in sub-section (1), a Special Court shall be deemed to be a court of
ordinary criminal justice.
56. Overriding
effect.
The provisions of this Act shall
have effect notwithstanding anything inconsistent therewith contained in
any enactment other than this Act or in any instrument having effect by
virtue of any enactment other than this Act.
57. Protection of action taken
in good faith.
No suit, prosecution or other
legal proceeding shall lie against the Central Government or a State
Government or any officer or authority of the Central Government or State
Government or any other authority on whom powers have been conferred under
this Act, for anything which is in good faith done or purported to be done
in pursuance of this Act:
Provided that no suit,
prosecution or other legal proceedings shall lie against any serving
member or retired member of the armed forces or other para-military forces
in respect of any action taken or purported to be taken by him in good
faith, in the course of any operation directed towards combating
terrorism.
58. Punishment and
compensation for malicious action.
(1) Any police officer who
exercises powers corruptly or maliciously, knowing that there are no
reasonable grounds for proceeding under this Act, shall be punishable with
imprisonment which may extend to two years, or with fine, or with
both.
(2) If the Special Court is of
the opinion that any person has been corruptly or maliciously proceeded
against under this Act, the Court may award such compensation as it deems
fit to the person, so proceeded against and it shall be paid by the
officer, person, authority or Government, as may be specified in the
order.
59. Impounding passport and
arms licence of person chargesheeted under the Act.
Notwithstanding anything
contained in any other law for the time being in force, the passport and
the arms licence of a person, who is charge-sheeted for having committed
any offence under this Act, shall be deemed to have been impounded for
such period as the Special Court may deem fit.
60. Review
Committees.
(1) The Central Government and
each State Government shall, whenever necessary, constitute one or more
Review Committees for the purposes of this Act.
(2) Every such Committee shall
consist of a Chairperson and such other members not exceeding three and
possessing such qualifications as may be prescribed.
(3) A Chairperson of the
Committee shall be a person who is, or has been, a Judge of a High Court,
who shall be appointed by the Central Government, or as the case may be,
the State Government, so however, that the concurrence of the Chief
Justice of the High Court shall be obtained in the case of a sitting
Judge:
Provided that in the case of a
Union territory, the appointment of a person who is a Judge of the High
Court of a State shall be made as a Chairperson with the concurrence of
the Chief Justice of the concerned High Court.
61. Power of High Courts to
make rules.
The High Court may, by
notification in the Official Gazette, make such rules, if any, as they may
deem necessary for carrying out the provisions of this Act relating to
Special Courts within their territories.
62. Power to make
rules.
(1) Without prejudice to the
powers of the High Courts to make rules under section 61, the Central
Government may, by notification in the Official Gazette, make rules for
carrying out the provisions of this Act.
(2) In particular, and without
prejudice to the generality of the foregoing powers, such rules may
provide for all or any of the following matters, namely:—
(a) regulating the conduct of
persons in respect of areas the control of which is considered necessary
or expedient and the removal of such persons from such areas;
(b) the entry into, and search
of—
(i) any vehicle, vessel or
aircraft; or
(ii) any place,
whatsoever,
Reasonably suspected of being
used for committing the offences referred to in section 3 or section 4 or
for manufacturing or storing anything for the commission of any such
offence;
(c) conferring powers
upon—
(i) the Central
Government;
(ii) a State
Government;
(iii) an Administrator of a Union
territory under article 239 of the Constitution;
(iv) an officer of the Central
Government not lower in rank than that of a Joint Secretary; or
(v) an officer of a State
Government not lower in rank than that of a District
Magistrate,
to make general or special orders
to prevent or deal with terrorist acts;
(d) the arrest and trial of
persons contravening any of the rules or any order made
thereunder;
(e) the punishment of any person
who contravenes or attempts to contravene or abets or attempts to abet the
contravention of any rule or order made thereunder with imprisonment for a
term which may extend to one year or fine or both;
(f) providing for the seizure and
detention of any property in respect of which such contravention, attempt
or abetment as is referred to in clause (e) has been committed and for the
adjudication of such seizure and detention, whether by any court or by any
other authority;
(g) determination of the price of
the forfeited property under sub-section (2) of section 10;
(h) the procedure of making
application under sub-section (3) of section 19; and
(i) the qualifications of the
members of the Review Committee under sub-section (2) of section
60.
63. Orders and rules to be laid
before Houses of Parliament.
Every order and every rule made
by the Central Government under this Act shall be laid, as soon as may be
after it is made, before each House of Parliament, while it is in session,
for a total period of thirty days which may be comprised in one session or
in two or more successive sessions, and if, before the expiry of the
session immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the order or
rule or both Houses agree that the order or rule should not be made, the
order or rule shall thereafter have effect only in such modified form or
be of no effect, as the case may be; so, however, that any such
modification or annulment shall be without prejudice to the validity of
anything previously done under that order or rule.
64. Repeal and
saving.
(1) The Prevention of Terrorism
(Second) Ordinance, 2001 is hereby repealed.
(2) Notwithstanding the repeal of
the said Ordinance, anything done or any action taken under the said
Ordinance shall be deemed to have been done or taken under the
corresponding provisions of this Act.
THE
SCHEDULE
(See section 18)
Terrorist
organisations
1. Babbar
Khalsa International.
2. Khalistan Commando
Force.
3. Khalistan Zindabad
Force.
4. International
Sikh Youth Federation.
5. Lashkar-e-Taiba/Pasban-e-Ahle
Hadis
6. Jaish-e-Mohammed/Tahrik-e-Furqan
7. Harkat-ul-Mujahideen/Harkat-ul-Ansar/Harkat-ul-Jehad-e-Islami.
8. Hizb-ul-Mujahideen/Hizb-ul-Mujahideen
Pir Panjal Regiment.
9. Al-Umar-Mujahideen.
10. Jammu
and Kashmir Islamic Front.
11. United
Liberation Front of Assam (ULFA).
12. National
Democratic Front of Bodoland (NDFB).
13. People’s
Liberation Army (PLA).
14. United
National Liberation Front (UNLF).
15. People’s
Revolutionary Party of Kangleipak (PREPAK).
16. Kangleipak
Communist Party (KCP).
17. Kanglei
Yaol Kanba Lup (KYKL).
18. Manipur People’s Liberation
Front (MPLF).
19. All
Tripura Tiger Force.
20. National
Liberation Front of Tripura.
21. Liberation
Tigers of Tamil Eelam (LTTE).
22. Students
Islamic Movement of India.
23. Deendar
anjuman.
24.Communist Party of India
(Marxist-Leninist)—People’s War, all its formations and front
organisations
25.Maoist
Communist Centre (MCC), All its formations and front
organisations.
26.Al
Badr
27.
Jamiat-Ul-Mujahidden
28. Al-Qaida.
29. Dukhtaran-e-Millat
(DEM)
30. Tamil Nadu Liberation Army
(TNLA)
31. Tamil National Retrieval
Troops (TNRT)
32. Akhil
Bharat Nepali Ekta Samaj (ABNES)
Explanation.—For the purposes of
this Schedule, serial numbers 24 and 25 shall be deemed to have been
included with effect from the date of publication of S.O. No. 1194(E),
dated the 5th December, 2001.
K.N. CHATURVEDI,
Addl. Secy. to the Govt. of
India
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