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The Prevention of Terrorism Ordinance,
2001
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.
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MINISTRY OF LAW, JUSTICE AND COMPANY AFFAIRS
(Legislative Department)
New Delhi, the 24th October, 2001/Kartika 2, 1923 (Saka)
THE PREVENTION OF TERRORISM ORDINANCE, 2001
No. 9 OF 2001
Promulgated by the President in the Fifty-second Year of the Republicof
India.
An Ordinance to make provisions for the prevention of, and for
dealingwith, terrorist activities and for matters connected therewith.
WHEREAS Parliament is not in session and the
President is satisfied that circumstances exists which render
it necessary for him to take immediate action;
NOW, THEREFOR, in exercise of the powers conferred
by clause (1) of article 123 of the Constitution, the President
is please to promulgate the following Ordinance;-
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Short title, extent, application, commencement,
duration and savings.
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CHAPTER I
PRELIMINARY
1. (1) This Ordinance may be called the Prevention
of Terrorism Ordinance, 2001.
(2) It extends to the whole of India.
(3) Every person shall be liable to punishment
under this Ordinance 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 Ordinance shall be dealt
with according to the provisions of this Ordinance in the same
manner as if such act had been committed in India.
(5) The provisions of this Ordinance 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) It shall come into force at once and 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 -
(a) the previous operation of, or anything duly
done or suffered under this Ordinance, or
(b) any right, privilege, obligation or liability
acquired, accrued or incurred under this Ordinance, or
(c) any penalty, forfeiture or punishment incurred
in respect of any offence under this Ordinance, 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 Ordinance
had not expired.
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Definitions
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2. (1) In this Ordinance, unless the context
otherwise requires,-
(a) "Code" means the Code of Criminal Procedure,
1973,
(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;
(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 Ordinance and defined in the Code shall have the meanings
respectively assigned to them in the Code.
(2) Any reference in this Ordinance 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.
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Punishments for terrorist acts.
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CHAPTER II
PUNISHMENT FOR, AND MEASURES FOR DEALING WITH, TERRORIST ACTIVITIES
3. (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 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 or by any other means whatsoever,
in such a mariner 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
defence 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;
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37 of 1967
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(b) is or continues to be a member of an association
declared unlawful under the Unlawful Activities (Prevention) Act,
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,-
(i) 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;
(ii) 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 harbours 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.
(8) A person receiving or in possession of information
which he knows or believes to be of material assistance-
(i) in preventing the commission by any other
person of a terrorist act, or
(ii) 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 punishable
with imprisonment for a term which may extend to one year or with
fine or with both:
Provided that a legal practitioner of the accused
shall not be bound to disclose such information which he might
have received while defending the accused.
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Possession of unauthorized arms, etc.
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4. Where any person is in unauthorized 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.
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Enhanced penalties
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5. (1) If any person with intent to aid any terrorist
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 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 (I) 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".
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Holding of proceeds of terrorism illegal.
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6. (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 Ordinance, 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.
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Powers of investigating officers.
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7. (1) If an officer (not below the rank of Superintendent
of Police) investigating an offence committed under this Ordinance,
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, or the Special Court, as
the case may be, before whom the properties seized or attached
are produced and a copy of such order shall be served on the person
concerned.
(2) The investigating officer shall duly inform
the Designated Authority or, as the case may be, the Special Court,
within forty-eight hours of the seizure or attachment of such
property.
(3) It shall be open to the Designed Authority
or the Special Court 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.
(4)In the case of immovable property attached
by the investigating officer, it shall be deemed to have been
produced before the Designated Authority or the Special Court,
as the case may be, when the investigating officer notifies his
report and places it at the disposal of the Designated Authority
or the Special Court, as the case may be.
(5) 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
Ordinance:
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, or as the case may be, the Special Court and such authority
or, as the case may be, the Court 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.
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Forfeiture of proceeds of terrorism
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8. Where any property is seized or attached in
the belief that it constitutes proceeds of terrorism and is produced
before the Designated Authority, it shall, on being satisfied
that the said property consists of proceeds of terrorism, 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 Ordinance.
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Issue of show cause notice before forfeiture of
proceeds of
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9. (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 (I), 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 Designated
Authority 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 Designated Authority.
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Appeal.
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10. (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 Designated Authority, 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 Ordinance, 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.
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Order of forfeiture not to interfere with other
punishments.
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11. The order of forfeiture made under this Ordinance
by the Designated Authority, shall not prevent the infliction
of any other punishment to which the person affected thereby is
liable under this Ordinance.
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Claims by third party.
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12. (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, or as the case may be, the Special Court,
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 or the Special Court considers
that the claim or objection was 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 attached or forfeited under the Ordinance,
the said notice shall be withdrawn or modified accordingly.
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Powers of Designated information.
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13. The Designated Authority, acting under the
provisions of this Ordinance, shall have all the powers of a Civil
Court required for making a full and fair enquiry into the matter
before it.
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Obligation to furnish information
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14. (l) Notwithstanding anything contained in
any other law, the officer investigating any offence under this
Ordinance, 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, 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 Ordinance.
(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 (l) 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.
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Certain transfers to be null and void
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15. 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 Ordinance, be ignored and if such property is subsequently
forfeited, the transfer of such property shall be deemed to be
null and void.
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Forfeiture of property of certain persons.
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16. (1) Where any person is accused of any offence
under this Ordinance, 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
Ordinance.
(2) Where a person has been convicted of any
offence punishable under this Ordinance, 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.
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Company to transfer shares to Government.
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17. Where any shares in a company stand forfeited
to the Central Government or the State Government, as the case
may be, under this Ordinance, then, the company shall on receipt
of the order of the Special Court, notwithstanding anything contained
in the Companies Act, 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.
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CHAPTER III
TERRORIST ORGANISATIONS
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Declaration of an terrorist organisation.
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18. (l) For the purposes of this Ordinance 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.
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Denotification of terrorist organisation.
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19. (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
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The organisation, or
- 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 (I)
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 59 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.
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Offence relating to membership of a terrorist
organisation.
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20. (1) A person commits an offence if he belongs
or professes to membership 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.
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Offence relating to support given to a terrorist
organisation.
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21. (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,
(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 for this
section, the expression "meeting" means a meeting of three or
more persons whether or not the public are admitted.
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Fund raising for a terrorist organisation to be
an offence.
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22. (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 use 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.
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CHAPTER IV
SPECIAL COURTS
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Special Courts
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23. (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.
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Place of sitting.
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24. 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.
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Jurisdiction of Special Courts.
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25. (1) Notwithstanding anything contained in
the Code, every Jurisdiction of offence punishable under any provision
of this Ordinance, 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.-
(i) it is not possible to have a fair, impartial
or speedy trial; or
(ii') 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
(iii) 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.
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Power of Special Courts with respect to other
offences.
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26. (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
Ordinance of any offence, it is found that the accused person
has committed any other offence under this Ordinance or under
any other law, the Special Court may convict such person of such
other offence, and pass any sentence or award punishment authorized
by this Ordinance or such rule or, as the case may be, under such
other law.
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Power to direct or samples, etc.
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27. (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, voice of any accused person, reasonably
suspected to be involved in the commission of an offence under
this Ordinance, 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.
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Public Prosecutors.
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28. (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.
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Procedure and powers of Special Courts
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29. (7) Subject to the provisions of section
49, 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 Ordinance,
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 Ordinance,
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.
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Protection of witnesses,
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30. (1) Notwithstanding anything contained in
the Code, the proceedings under this Ordinance 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.
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Trial by Special Courts to have precedence.
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31. The trial under this Ordinance 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.
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Certain confessions made to police officers to
be taken into consideration.
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32. (1) 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
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 Ordinance
or 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.
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Power to transfer cases to regular courts.
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33. 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.
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Appeal.
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34. (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 udgment, 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.
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CHAPTER V
INTERCEPTION OF COMMUNICATION IN CERTAIN CASES
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Definitions.
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35. 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,
(ii) any wire or oral communication;
(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-
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Appointment of Authority.
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36. 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 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.
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Application for authorization of interception
of wire, electronic or oral communication.
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37. (1). A police officer not below the rank
of Superintendent of Police supervising the investigation of any
terrorist act under this Ordinance may submit an application in
writing to the Competent Authority for an order authorizing 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 authorizing
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 authorization 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.
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Decision by Competent Authority on application
for interception.
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38. (l) Upon such application, the Competent
Authority may reject the application, or issue an order, as requested
or as modified, authorizing 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 6 of this Ordinance;
(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 authorizing
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 authorized to
intercept the communications, and the person authorizing the application;
and
(e) the period of time during which such interception
is authorized, including a statement as to whether or not the
interception shall automatically terminate after the described
communication has been first obtained.
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Submission of Order of inception to Review Committee.
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39. (1) The Competent Authority shall immediately
after passing the order under sub-section (/) of section 38, 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 59 along with 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 authorizing 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.
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Duration of an order of interception etc.
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40. (1) No order issued under this section may
authorize or approve the interception of any wire, electronic
or oral communication for any period longer than is necessary
to achieve the objective of the authorization, 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 investigation
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 37 and the Competent Authority
making the findings required by sub-section (1) of section 38,
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 authorization to intercept shall be executed
as soon as practicable and shall be conducted in such manner as
to minimize the interception of communications not otherwise subject
to interception under this section and shall terminate upon attainment
of the authorized objective, or in any event on the expiry of
the period of said order or extension thereof.
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Authority competent to carry out interception.
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41. (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 authorized to conduct
the interception.
(2) Whenever an order authorizing 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 authorized
objective and the need for continued interception and such report
shall be made at such intervals as the Competent Authority may
require.
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Interception of communication in emergency.
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42. (1) Notwithstanding anything contained in
any other provision of this section, 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;
(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
authorizing such interception can, with due diligence, be obtained,
and
(b) there are grounds on which an order should
be issued under this section to authorize such interception,
may authorize, 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 37 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 38 or an application
under sub-section (1) of section 42 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.
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Protection of information collected.
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43. (a) The contents of any wire, electronic
or oral communication intercepted by any means authorized by this
section 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.
(b) 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.
(c) Applications made and orders issued under
this section 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.
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Admissibility of evidence collected through the
interception of communications.
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44. 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 authorized 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.
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Review of authoritarian order.
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45. (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 38.
(2) Every order passed by the Competent Authority
under section 38, or disapproved by the officer under section
42, 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.
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Interception and disclosure of wire, electronic
or oral communications prohibited.
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46. Except as otherwise specifically provided
in section 38, 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; or
(e) intentionally discloses, or endeavours to
disclose, to any other unauthorized person the contents of any
wire, electronic or oral communication, intercepted by means authorized
by section 38;
(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 45,
shall for such violation be punishable with imprisonment
for a term which may extend to one year and with fine upto rupees
fifty thousand.
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Annual Report of Interceptions.
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47. (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.-
(i) the number of applications for authorization
of interceptions received by the Competent Authority from the
Police Department in which prosecutions have been launched;
(ii) the number of such applications permitted
or rejected;
(iii) the number of interceptions carried out
in emergency situations and the number of approvals granted or
rejected in such matters;
(iv) 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 authorized.
(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.
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CHAPTER VI
MISCELLANEOUS
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Modified application of certain provisions of
the Code.
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48. (1) Notwithstanding anything contained in
the Code or any other law, every offence punishable under this
Ordinance 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 Ordinance
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 Ordinance, 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 Ordinance
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 "State Government" shall be construed as a reference to "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 Ordinance.
(6) Notwithstanding anything contained in the
Code, no person accused of an offence punishable under this Ordinance
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 Ordinance 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 Ordinance, 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 Ordinance, 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.
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Cognizance of offences
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49. No Court shall take cognizance of any offence
under this Ordinance without the previous sanction of the Central
Government or as the case may be, the State Government.
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Officers competent to investigate offences under
this Ordinance.
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50. Notwithstanding anything contained in the
Code, no police officer, -
(a) in the case of the Delhi Special Police Establishment,
not 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, not below
the rank of an Assistant Commissioner of Police;
(c) in any other case not relatable to clause
(a) or clause (b), not below the rank of a Deputy Superintendent
of Police or a police officer of an equivalent rank, shall investigate
any offence punishable under this Ordinance.
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Arrest.
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51. (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.
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Presumption as to offences under section 3.
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52. (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.
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Bar of jurisdiction of courts, etc.
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53. 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 section 19 and section
39 of the Ordinance.
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Saving.
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54. (1) Nothing in this Ordinance 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.
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Overriding effect.
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55. The provisions of this Ordinance shall have
effect notwithstanding anything inconsistent therewith contained
in any enactment other than this Ordinance or in any instrument
having effect by virtue of any enactment other than this Ordinance.
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Protection of action taken in good faith.
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56. 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 Ordinance, for anything which is in good faith done
or purported to be done in pursuance of this Ordinance:
Provided further 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.
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Punishment and compensation for malicious action.
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57. (1) Any police officer who exercises powers
corruptly or maliciously, knowing that there are no reasonable
grounds for proceeding under this Ordinance, shall be punishable
with imprisonment which may extend to two years, or with fine,
or with both.
(2) If the Special Court is of opinion that any
person has been corruptly or maliciously proceeded against under
this Ordinance, 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.
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Impounding of passport and arms licence of person
charge sheeted under this Ordinance
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58. 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 Ordinance, shall be deemed to have been
impounded for such period as the Special Court may deem fit.
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Review Committees.
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59, (1) The Central Government and each State
Government shall, whenever necessary, constitute one or more Review
Committees for the purposes of this Ordinance.
(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 who 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.
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Power of High Courts to make rules.
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60. The High Courts may, by notifications in
the Official Gazette, make such rules, if any, as they may deem
necessary for carrying out the provisions of this Ordinance relating
to Special Courts within their territories.
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Power to make rules.
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61. (1) Without prejudice to the powers of the
High Courts to make rules under section 60, the Central Government
may, by notification in the Official Gazette, make rules for carrying
out the provisions of this Ordinance.
(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: -
(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;
(i) the qualifications of the members of the
Review Committee under sub-section (2) of section 59.
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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/HARKAR-UL-ANSAR/KARKAT-UL-JEHAD-E-ISLAMI.
8. HIZB-UL-MUJAHIDEEN/HIZB-ULMUJAHIDEEN PIR PANJAL
REGIMENT.
9. AL-UMAR-MUJAHIDEEN.
10. JAMMU AND KASHMIR ISLAMIC FRONT.
11. UNITED LEBERATION 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 KANGLEIPALK
(PREPAK).
16. KANLEIPAK 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.
K.R.NARAYANAN.
President
SUBHASH C.JAIN,
Secy. to the Govt. of India,
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