The Prevention of Terrorism Act, enacted on March 28, 2002, replaced the
Prevention of Terrorism Ordinance (POTO) 2001. The Act has now come into
force after the President of India gave his assent.
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:�
Preliminary
Punishment for, and measures for dealing with terrorist activities
Terrorist
Organisations
Special Courts
Interception of communication in certain cases
Miscellaneous
The Schedule
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
