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The Criminal Law Amendment Bill, 1995

A BILL to make special provisions for the prevention of, and for coping with, terrorist and disruptive activities and to supplement the criminal law.

Be it enacted by Parliament in the Forty-ninth Year of the Republic of India as follows:-

PART I - PRELIMINARY

Short title and extent.

  1. This Act may be called the Criminal Law Amendment Act, 1998.

  2. It extends to the whole of India, and it applies also to:

      1. citizens of India outside India;

      2. persons in the service of the Government, wherever they may be; and

      3. persons on ships and aircraft registered in India, wherever they may be.

  1. It shall remain in force for a period of five years from the date of its commencement, but its expiry under the operation of this sub-section shall not affect:

      1. the previous operation of, or anything duly done or suffered under this Act, or

      2. any right, privilege, obligation or liability acquired, accrued or incurred under this Act, or

      3. any penalty, forfeiture or punishment incurred in respect of any offence under this Act, or

      4. 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.

Definitions

2. (1) In this Act, unless the context otherwise requires:

    1. "Code" means the Code of Criminal Procedure, 1973

    (aa)   "Designated Authority" shall mean such officer of the Central Government or the State Government, as the case may be, not below the rank of Joint Secretary to the Government as may be specified by the Central Government or the State Government, as the case may be, in a notification published in the Official Gazette.

    1. "Disruptive activity" has the meaning assigned to it in section 4, and the expression "disruptionist" shall be construed accordingly; Due to lack of clarity regarding purpose of clause (ba), no comments offered on it)

(ba) "High Court" means the High Court in which a Judge or any additional Judge of a Special Court was working immediately before his appointment as such Judge or additional Judge;

    1. "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 obtained from the terrorist act and includes proceeds of terrorism;

      2. (ca) "Public Prosecutor" means a Public Prosecutor or an additional Public Prosecutor or a Special Public Prosecutor appointed under section 12 and includes any person acting under the direction of the Public Prosecutor;

    2. "Special Court" means a Special Court constituted under section 8;

    1. "Terrorist act" has the meaning assigned to it in sub-section (1) of section 3, and the expression "terrorist" shall be construed accordingly;

    1. 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.

  1. 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.

PART II - PUNISHMENTS FOR, AND MEASURES FOR COPING WITH TERRORIST AND DISRUPTIVE ACTIVITIES

3. Punishment for terrorist acts.

  1. Whoever with intent to threaten the unity, integrity, security or sovereignty of India or to overawe the Government as by law establisher or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony against different sections of the people does any act or thing by using bombs, dynamite, or other explosive substances or inflammable substances or fire-arms 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 in such a manner as to cause, or as is 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 of inter-state or foreign commerce 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, commits a terrorist act.

    1. Whoever commits a terrorist act, shall:

      1. 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;

      2. 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.

    1. 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.

    1. Whoever harbours or conceals, or attempts to harbour or conceal, any person knowingly that such person is a terrorist 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.

    1. Any person who is a member of a terrorist gang or a terrorists organisation which is involved in terrorist acts, 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.

    1. Whoever holds 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 shall not be less than five years but which may extend to imprisonment of life and shall also be liable to fine.

    1. Whoever threatens any persons 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, shall be punishable with imprisonment which may extend to three years and fine.

    1. Information about acts of terrorism.

A person receiving or in possession of information which he knows or believes might be of material assistance:

      1. in preventing the commission by any other person of a terroirst or disruptive act; or

      2. in securing the apprehension, prosecution or conviction of any other person for an offence involving the commission, preparation or instigation of such an act,

and fails without reasonable cause to disclose that information as soon as reasonably practicable to the police, shall be punished with imprisonment for a term which may extend to one year or fine or both.

  1. Punishment for disruptive activities:

    1. Whoever by any action taken, whether by act or by speech or through any other media or in any manner whatsoever, questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty or territorial integrity of India, or which is intended to bring about or support any claim, whether directly or indirectly for the cessation of any part of India or a secession of any part of India from the Union, commits a disruptive act.

Explanation: For the purposes of this sub-section.

    1. "cession" includes the admission of any claim of any foreign country to any part of India; and

    2. "secession" includes the assertion of any claim to determine whether a part of India will remain within the Union.

    3. Trade union activity or other mass movement without the use of violence or questioning the sovereignty or territorial integrity of India or supporting any claim for the cession of any part of India or a secession of any part of India shall not be deemed to be a "disruptive act".

    4. "disruptive act" means any action taken, whether by act or speech or through any other media or in any other manner whatsoever:

      1. which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India; or

      2. which is intended to bring about or supports any claim, whether directly or indirectly; for the cessation of any part of India or the secession of any part of India from the Union.

    1. Whoever commits or conspires or attempts to commit or abets, advocates, advises, or knowingly facilitates the commission of any disruptive act or any act preparatory to a disruptive 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.

    1. Without prejudice to the generality of the provision of sub-section (1), it is hereby declared that any action taken whether by act or by speech or through any other media or in any other manner whatsoever, which:

      1. advocates, advises, suggests or incites; or

      2. predicts, prophesies or pronounces or otherwise expresses, in such manner as to incite, advice, suggest or prompt, the killing or the destruction of any person bound by oath under the Constitution to uphold the sovereignty and integrity of India or any public servant shall be deemed to be disruptive act within the meaning of this section.

    1. Whoever harbours or conceals or attempts to harbour or conceal any person knowingly that such person is a disruptionist 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.

  1. Enhanced penalties:

    1. If any person with intent to aid any terrorist or disruptionist, contravenes any provision of, or any rule made under, the Arms Act, 1959, the Explosives Act, 1884, the Explosive Substances Act, 1908 or the Inflammable Substances Act, 1952, he shall, notwithstanding anything contained in any of the aforesaid Acts or the rules made thereunder, 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.

    2. For the purpose 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".

  1. Holding of proceeds of terrorism illegal: No person shall hold or be in possession of any proceeds of terrorism. All proceeds of terrorism shall be liable to be confiscated whether they are held by a terrorist or a disruptionist or by any other person and whether or not such person is prosecuted and/or convicted under this Act. All such proceeds of terrorism shall liable to be seized (in the case of movable properties/assets) and attached (in the case of other properties) by an officer investigating an offence under the Act not below the rank of Superintendent of Police and shall also be liable to be confiscated to Government in the manner provided hereinafter.

Explanation: "Proceeds of terrorism" shall mean all kinds of properties which have been derived or obtained from commission of any terrorist act or disruptive activity or have been acquired through funds traceable to terrorist act or disruptive activity.

6A. Powers of investigating officers: 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 is a property derived or obtained from the commission of any terrorist act and/or includes 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 situate, of his immediate or other higher supervisory officer, 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 or the Special Court, as the case may be, before whom the seized/attached properties are produced. A copy of such order shall be served on the person concerned.
Provided that the investigating officer shall duly inform the DA or as the case may be the Special Court, within forty-eight hours of the attachment of such property. It shall be open to the DA or the Special Court before whom the seized/attached properties are produced either to confirm or revoke the order of attachment so issued.

Explanation: In the case of immovable properties attached by the investigating officer, they shall be deemed to have been produced before the DA or the Special Court, as the case may be, when the IO says so in his report and places them at the disposal of such DA or the Special Court, as the case may be.

6B. Confiscation of proceeds of terrorism: Where any properties are seized and/or attached in the belief that they constitute proceeds of terrorism and are produced before the DA, he shall, on being satisfied that the said properties constitute proceeds of terrorism, order confiscation of such proceeds, whether or not the person from whose possession they are seized/attached is prosecuted in a Special Court for an offence under this Act or not.

6C. Issue of show-cause notice before confiscation or proceeds of terrorism:

    1. No order confiscating any proceeds of terrorism shall be made under section 6-B, 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 confiscate 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 confiscation and is also given a reasonable opportunity of being heard in the matter.

    2. No order of confiscating shall be made under sub-section (1), if such person establishes that he is bona fide transferee of such proceeds for value without knowing that they represent proceeds of terroirsm.

6D Appeal:

    1. Any person aggrieved by an order of confiscation under section 6-B may, within one month from the data of the communication to him of such order, appeal to the High Court concerned.

    2. Where an order under section 6-B is modified or annulled by the High Court or where in a prosecution instituted for the violation of the provisions of this Act, the person against whom an order of confiscation has been made under section 6-B, is acquitted and in either case it is not possible for any reason to return the proceeds of terrorism confiscated, such person shall be paid the price therefore as if the proceeds of terrorism had been sold to the Government with reasonable interest calculated from the day of seizure of the proceeds of terrorism and such price shall be determined in the manner prescribed.

6E. Order of confiscation not to interfere with other punishments: The order of confiscation under this Act by the DA shall not prevent the infliction of any punishment to which the person affected thereby is liable under this Act.

6F. Where any claim is preferred, or any objection is made to the attachment of any assets under section 6-C on the ground that such property is not liable to such attachment, the DA or the Special Court, as the case may be, before whom such assets are produced, shall proceed to investigate the claim or objection.

Provision that no such investigation shall be made where the DA or the Special Court considers that the claim or objection was designed to unnecessarily cause delay.

  1. In case claimant or objector establishes that the property or asset specified, if any, in the notice issued under section 6C is not liable to be attached or confiscated under the Act, the notice under section 6C shall be withdrawn or modified accordingly.

6G. Powers of the Designated Authority: The DA acting under provisions of the Act, shall have all the powers of a Civil Court relevant for making a full and fair enquiry into the matter before him.

6H. Obligation to furnish information –

    1. Notwithstanding anything contained in any other law, the officer investigating any offence under this Act shall have power to require any officer or authority of the Central Government or a State Government or a local authority or a Bank, a company, a firm or any other institution, establishment, organisation or any individual to furnish information in relation to such persons, in their possession on points or matters as in the opinion of such officer will be useful for, or relevant to, the purposes of this Act. Failure to furnish the information so called for or furnishing false information shall be punishable with imprisonment of either description for a term which may extend to three years and fine.

    2. Notwithstanding anything contained in the Criminal Procedure Code, 1973, 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.

    3. Any officer in possession of any information may furnish the saw suo motu to the officer investigating an offence under this Act, if in the opinion of such officer such information will be useful to the such officer for the purpose of this Act.

6I. Certain transfers to the null and void: Where after the issue of a notice under section 6A or section 6B (1), any property referred to in the said 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 confiscated, the transfer of such property shall be deemed to be null and void.

  1. Forfeiture of property of certain persons:

    1. Where a person has been convicted of any offence punishment 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 Government free from all encumbrances.

    2. 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 properties, movable or immovable or both belonging to him, shall during the period of such tribal, be attached, and where such trial ends in convicted, the properties so attached shall stand forfeited to the Government free from all encumbrances.

    3. Where any shares in a company stand forfeited to the Government under this section, then the company shall notwithstanding anything contained in the Companies Act, 1956, or the articles of association of the company, forthwith register the Government as the transferee of such shares.

7A. The police officer recording information in respect of an offence under this Act shall promptly forward copies of all the material including the FIR and its accompaniments to the DGP and the Review Committee. It shall be open to the DGP or the Review Committee to call for such further information, as they may deem necessary, from the police or any other person before approving or disapproving, as the case may be, the action taken by the subordinate authorities. If the DGP does not approve the recording of the aforesaid information within 10 days or if the Review Committee does not approve the same within 30 days, the recording of the said information shall become null and void with effect from the tenth day or the thirtieth day, as the case may be, and all proceedings in that behalf shall stand withdrawn and if the accused is in custody, he shall be released forthwith unless required in connection with some other offence.

Explanation (1): Any action taken or order passed under this provision shall be in addition to and independent of the review of pending cases by the Review Committee under clause 27 of the Bill.

Explanation (2): For the purposes of this proviso, "Review Committee" shall mean the Review Committee constituted under clause 27 of this Bill.

PART III - SPECIAL COURTS

  1. 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 a 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 thereon 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 in a Special Court.

  6. A person shall not be qualified for appoint 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 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.

  9. A Designated Court constituted under sub-section (1) of section 9 of the Terrorism and Disruptive Activities (Prevention) Act, 1987 (28 of 1987) for any area or areas or any case or class or group of cases shall be deemed to be Special Court for the purposes of this Act.

  1. Place of sitting:

    2. A Special Court may, on its own motion or 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 the State.

  2. 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 8.

    1. If, having regard to the exigencies of the situation prevailing in a State, the Central Government is of the opinion that:

      1. the situation prevailing in such State is not conductive to a fair, impartial or speedy trial; or

      2. it is not likely to be feasible without occasioning the breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor and the judge of the Special Court or any of them; or

      3. it is not otherwise in the interest of justice,

it may, with the concurrence of the Chief Justice of India (such concurrence to be obtained on a motion moved in their behalf by the Attorney General), transfer any case pending before a Special Court in that State to any other Special Court within that State or in any other State.

    1. Where the whole or any part of the area within the local limits of the jurisdiction of a Special Court ahs been declared to be, or forms part of, any area which has been declared to be a disturbed area under any enactment for the time being in force making provision for the suppression of disorder and restoration and maintenance of public order, and the Central Government is of opinion that the situation prevailing in the State is not conducive of fair, impartial or speedy trial within the State, of offences under this Act which such Special Court is competent to try, the Central Government may, with the concurrence of the Chief Justice of India, specify, by notification in the Official Gazette, in relation to such court (hereinafter in this sub-section referred to as the local court) a Special Court outside the State (hereafter in this section referred to as the specified court), and thereupon –

      1. it shall not be competent, at any time during the period of operation of such notification, for such local court to exercise any jurisdiction in respect of, or try, any offence under this Act;

      2. the jurisdiction which would have been, but for the issue of such notification, exercisable by such local court in respect of such offences committed during the period of operation of such notification shall be exercisable by the specified court;

      3. all cases relating to such offences pending immediately before the date of issue of such notification before such local court shall stand transferred on that date to the specified court;

      4. all cases taken cognizance of by, or transferred to, the specified court under clause (b) or clause (c) shall be dealt with the tried in accordance with this Act (whether during the period of operation of such notification or thereafter) as if such offences had been committed within the local limits of the jurisdiction of the specified court or, as the case may be, transferred for trial to it under sub-section (2).

Explanation 1: A notification issued under this sub-section in relation to any local court shall cease to operate on the date on which the whole or as the case may be, the aforementioned part of the area within the local limits of its jurisdiction, ceases to be a disturbed area.

Explanation 2: For the purposes of this section, "Attorney-General" means the Attorney-General of India or, in his absence the Solicitor-General of India or in the absence of both, one of the Additional Solicitors General of India.

  1. 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 authorised by this Act or such rule or, as the case may be, such other law, for the punishment thereof.

11A. (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 hand writing, finger prints, foot prints, photographs, blood, saliva, semen, hair 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 giver samples as provided in sub-section (1), in a trial under this Act, the court shall presume until the contrary is proved that the accused person had committed such offence.

  1. 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:

      2. 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.

    1. Every person appointed as a Public Prosecutor of 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 (a) of section 2 of the Code, and the provisions of the Code shall have effect accordingly.

  1. Procedure and powers of Special Courts:

    1. A Special court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which 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 may 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:

      3. Provided that when, in the course of a summary trial under this sub-section, it appear 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 two years.

    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 sub-section (2) of section 10 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, a Special Court may, if it thinks fit and for reasons to be recorded by it, proceed with the trail 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.

  1. Protection of witnesses:

    1. Notwithstanding anything contained in the Code, the proceedings under this Act may be held in camera if the Special Court so desires.

    2. A Special Court, if on an application made by a witness in any proceedings before it or by the Public Prosecutor in relation to such witness or on its own motion, 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-

      1. the holding of the proceedings at a place to be decided by the Special Court;

      2. the avoiding of the mention of the names and addresses of the witnesses in its orders or judgement or in any records of the case accessible to public;

      3. the making of necessary arrangements for security that the identity and address of the witness is not disclosed even during his cross-examination.

      4. 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.

    1. Any person who contravenes any 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.

  1. Trial by Special Courts to have precedence:
    The trial under this Act of the offence by the 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.

    15A. Notwithstanding anything in the code or in the Indian Evidence Act, 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 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 rules made thereunder:
    Provided that where more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other person shall be admissible against such other persons as well as against the persons who makes such confession.

    1. A police officer shall, before recording any confession made by a person under sub-section (2) 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.

    2. 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.

    3. 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 device, without unreasonable delay.

    4. The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulously record the statement, if any made by the person so produced and get his signature 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.

  1. Power to transfer cases to regular courts:

    2. Where, after taking cognizance of any offence, a Special Court is of 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 had taken cognizance of the offence.

  2. Appeal:

    1. Notwithstanding anything contained in the Code, an appeal shall lie as a matter of right from any judgement, sentence or order, not being an interlocutory order, of a Special Court to the Supreme Court both on facts and on law.

      2. Provided that if a person is tried by the Special Court for an offence under this Act but convicted for any other offence, and is acquitted under this Act, he shall have the right to prefer an appeal to the next appellate court as provided under the Code.
      Provided further that if the State prefers an appeal against the order of acquittal, it shall make an application to the Supreme Court for withdrawal of appeal preferred under the first proviso and the Supreme Court shall withdraw appeal and dispose of all the appeals itself.

    2. 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.

    1. Every appeal under this section shall be preferred within a period of thirty days from the date of the judgement, sentence or order appealed from:
      Provided that the Supreme 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.

PART IV - MISCELLANEOUS

  1. 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 modifications that, in sub-section(2)-

      1. the reference 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

      2. 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 the Criminal Law Amendment Act, 1998 requests for police custody from judicial custody of any person, on the basis of investigation, he shall file an affidavit stating the reason for doing so and shall also explain the delay, if any for requesting such police custody.

    1. Section 268 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that:

  1. the reference in sub-section (1) thereof-

      1. to the State Government shall be construed as a reference to the Central Government or the State Government, as the case may be; and

      2. 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

      1. the reference in sub-section (2) thereof, to "State Government" shall be constructed as a reference to "Central Government or the State Government", as the case may be.

    1. Sections 366 to 371 and section 392 of the Code shall apply in relation to a case involving an offence triable by a Special Court subject to the modifications that the reference to the "Court of Session" and "High court", wherever occurring therein, shall be construed as reference to "Special Court" and "Supreme Court" respectively.

    2. Nothing in section 438 of the code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under this Act.

    3. 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 Public Prosecutor has been given an opportunity to oppose the application for such release.

      4. 6(A) 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.

    4. The limitations on granting of bail specified in sub-section (6) and 6(A) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail.

  1. Cognizance of offence-

    1. Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the Inspector General of Police, or as the case may be, the Commissioner of Police.

    2. No court shall take cognizance of any offence under this Act without the previous sanction of the State Government, or as the case may be, the Central Government.

19(A)

  1. Whenever a person is arrested, information of his arrest shall be immediately communicated by the police officer to a family member or a relative so such person by telegram, telephone or by any other means which shall be recorded by the police officer under the signature of the person arrested.

  1. Where a police officer arrests a person, he shall prepare a custody memo of the person arrested.

  1. During the interrogation, the legal practitioner of the person of the person arrested shall be allowed to remain present and the person arrested shall be informed of his right as soon as he is brought to the police station.

  1. Officers competent to investigate offences under this Act-
    Notwithstanding anything contained in the Code, no police officer below the rank-

    1. in the case of the Delhi Special Establishment, of a Deputy Superintendent of Police or a police officer of equivalent rank;

    2. in the metropolitan areas of Mumbai, Calcutta, Chennai and Ahmedabad and any other metropolitan area notified as such under sub-section (1) of section 8 of the Code, of an Assistant Commissioner of Police;

    3. in any other case not relatable to clause (a) or clause (b), of a Deputy Superintendent of Police or a police officer or equivalent rank.

Shall investigate any offence punishable under this Act.

  1. 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-

  1. that the arms or explosives or any other substance specified in section 3 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

  2. that by the evidence of an expert 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 presume, unless the contrary is proved, that the accused had committed such offence.

    1. 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 presume, unless the contrary is proved, that such person has committed the offence under that sub-section.

  1. 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.

  1. Overriding effect-

    2. 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.

  2. Protection of action taken in good faith and punishment for corruptly or maliciously proceeding against any person under this Act-

    1. 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.

    2. Any police officer exercising powers under this Act, who knows that there are no reasonable grounds for proceeding under this Act and yet corruptly or maliciously proceeds against any person, for an offence under this Act, shall be punishable with imprisonment which may extend to two year, or with fine, or with both.

  1. The Supreme Court may, by notification in the Official Gazette, make such rules, if any, as it may deem necessary for carrying out the provisions of this Act relating to Special Courts.

  1. Power to make rules-

    1. Without prejudice to the powers of the Supreme Court to make rules under section 27, 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 power, such rules may provide for all or any of the following matters, namely:

      1. 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;

      2. the entry into, and search of –

  1. any vehicle, vessel or aircraft; or

  2. 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 offences;

      1. conferring powers upon –

        1. the Central Government;

        2. a State Government;

        3. an Administrator of a Union Territory under article 239 of the Constitution

        4. an officer of the Central Government not lower in rank than that of a Joint Secretary; or

        5. 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 cope with terrorist acts or disruptive activities;

      1. the arrest and trial of persons contravening any of the rules or any order made thereunder;

      2. 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 seven years or for a team which may not be less than six months but which may extend to seven years or with fine or with imprisonment as aforesaid and fine;

      3. providing for the seizure and detention of any property in respect of which such contravention, attempt or abetment as is referred to in clause

      4. has been committed and for the adjudication of such seizure and detention, whether by any court or by any other authority.

  1. Review Committees-

  2. The Central Government shall constitute a Review Committee consisting of the Home Secretary, Law Secretary and the Secretaries of the other concerned Ministries, if any, to review at the end of each quarter in a year, the cases instituted by the Central Government under this Act. The Review Committee shall be competent to give such directions, as they may think appropriate, with respect to the conduct and continuance of any case or a class of cases, as the case may be.

  3. The State Government shall also constitute Review Committees consisting of the Chief Secretary to the Government, Home Secretary, the Law Secretary, the Director General of Police and the Secretaries of the other concerned Departments, if any, to review, at the end of each quarter in a year, the cases instituted by the State Government under this Act. The Review Committee shall be competent to give such directions, as they may think appropriate, with respect to the conduct and continuance of any case or a class or cases, as the case may be.

 

 

 

 
 
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