THE PREVENTION OF TERRORISM ( SECOND) ORDINANCE, 2001 (No. 12 OF 2001)

REGISTERED NO. DL-33004/2001

The Gazette of India

EXTRAORDINARY

PART II — Section 1

PUBLISHED BY AUTHORITY

No. 71] NEW DELHI, SUNDAY, DECEMBER 30,2001 / PAUSA 9,1923

Separate paging is given to this Part in order that it may be filed at a separate compilation.

MINISTRY OF LAW, JUSTICE AND COMPANY AFFAIRS

(Legislative Department)

New Delhi, the 30th December, 2001/Pausa 9, 1923 (Saka)

THE PREVENTION OF TERRORISM ( SECOND)

ORDINANCE, 2001

No. 12 OF 2001

Promulgated by the President in the Fifty-second Year of

the Republic of India.

An Ordinance to make provisions for the prevention of,

and for dealing with, terrorist activities and for matters

connected therewith.

WHEREAS the Prevention of Terrorism Ordinance, 2001, to provide for the aforesaid matters was promulgated by the President on the 24th day of October, 2001;

AND WHEREAS the Prevention of Terrorism Bill, 2001, to replace the said Ordinance could not be introduced in the House of the People,2 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— AND WHEREAS Parliament is not in session and the President is satisfied that circumstances exist which render it necessary for him to take immediate action;

NOW, THEREFORE, in exercise of the powers

conferred by clause (/) of article 123 of the Constitution,

the President is pleased to promulgate the following

Ordinance:-

CHAPTER I

PRELIMINARY

Short title.

1. (7) This Ordinance may be called the Prevention of

extent.

Terrorism (Second) Ordinance, 2001.

application.

(2) It extends to the whole of India.

commencement

(3) Every person shall be liable to punishment under

duration and

savings.

this Ordinance for every act or omission contrary to the

provisions thereof, of which he is held guilty in India.

(*/) 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.

(<5) Save as otherwise provided in respect of entries at

serial numbers 24 and 25 of the Schedule to this

Ordinance, it shall be deemed to have come into force on

the 24th day of October, 2001 and shall remain in force

for a period of three years from the date of itsSEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 3 commencement, but its expiry under the operation of this

sub-section shall not affect-

ed) 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

(if) 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.

2. (7) In this Ordinance, unless the context otherwise Definitions.

requires, -

(a) "Code" means the Code of Criminal

2 of 1974.

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 notification

published in the Official Gazette;

(c) "proceeds of terrorism" shall' mean all kinds

of properties which have been derived or obtained4 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— trom commission ot any terrorist act or nave occn

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 arc found;

(d) "property" means property and assets of every

description, whether corporeal or incorporeal,

movable or immovable, tangible or intangible and

deeds and instruments evidencing title to, or interest

in, such property or assets and includes bank account;

(e) "Public Prosecutor" means a Public

Prosecutor or an Additional Public Prosecutor or a

Special Public Prosecutor appointed under section 28

and includes any person acting under the directions of

the Public Prosecutor;

(/) "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,

(/) 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.

CHAPTER II

PUNISHMENT FOR, AND MEASURES FOR DEALING WITH,

1 ERROR! ST ACTIVITIES

Punishment for

3. (1) Whoever,-

terrorist acts.

(a) with intent to thieaten 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 manner as to

cause, or likely to cause, death of, or injuries to any

person or persons or loss of, or damage to, or

destruction of, property or disruption of any supplies

or services essential to the life of the community or

causes damage or destruction of any property or

equipment used or intended to be used for the 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;

(b) is or continues to be a member of an

association declared unlawful under the Unlawful

Activities (Prevention) Act, 1967, or voluntarily does

37 of 1967

an act aiding or promoting in any manner the objects

of such association and in either case is in possession6 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— 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.

4. Where any person is in unauthorized possession of

any,-

Possession of certain unauthorized arms, etc.

(a) arms or ammunition specified in columns (2)

and (3) of Category 1 or Category HI (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,8 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— he shall be guilty of terrorist act notwithstanding

anything contained in any other law for the time being in

force, and be punishable with imprisonment for a term

which may extend to imprisonment for life or with fine

which may extend to rupees ten lakh or with both.

Explanation.- In this section "notified area" means

such area as the State Government may, by

notification in the Official Gazette, specify.

5. (/) If any person with intent to aid any terrorist

Enhanced

penalties.

contravenes any provision of, or any rule made under,

54 of 1959.

the Arms Act, 1959, the Explosives Act, 1884, the

4 of 1884.

Explosive Substances Act, 1908 or the Inflammable

6 of 1908.

Substances Act, 1952, he shall, notwithstanding

20 of 1952.

anything contained in any of the aforesaid Acts or 1he

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"

6. (7) No person shall hold or be in possession of any

proceeds of terrorism.

Holding of

proceeds of

terrorism

illegal.

(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.

7. (/) If an officer (not below the rank of

Superintendent of Police) investigating an offence

committed under this Ordinance, has reason to believe

Powers of investigating officers and appeal against order of Designated Authority.

that any property in relation to which an investigation is

being conducted, represents proceeds of terrorism, he

shall, with the prior approval in writing of the Director

General of the Police of the State in which such property

is situated, make an order seizing such property and

where it is not practicable to seize such property, make

an order of attachment directing that such property shall

not be transferred or otherwise dealt with except with the

prior permission of the officer making such order, or of

the Designated Authority before whom the properties

seized or attached are produced and a copy of such order

shall be served on the person concerned.

(2) For the removal of doubts, it is hereby provided

that where an organisation is declared as a terrorist

organisation under this Ordinance and the investigating

officer has reason to believe that any person has custody

of any property which is being used or is intended to be

used for the purpose of such terrorist organisation, he

may, by an order in writing, seize or attach such

property.

(5) The investigating officer shall duly iriform the

Designated Authority within forty-eight hours of the

seizure or attachment of such property.

(4) It shall be open to the Designated Authority

before whom the seized or attached properties are

produced either to confirm or revoke the order of

attachment so issued:

Provided that an opportunity of making a

representation by the person whose property is being

attached shall be given.

(5) In the case of immovable property attached by the

investigating officer, it shall be deemed to have been

produced before the Designated Authority, when the

investigating officer notifies his report and places it at

the disposal of the Designated Authority.

(6) The investigating officer may seize and detain any

cash to which this Chapter applies if he has reasonable

grounds for suspecting that-

(a) it is intended to be used for the purposes of

terrorism;

(b) it forms the whole or part of the resources of

an organisation declared as terrorist organisation

under this 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 and such

authority passes an order allowing its retention beyond

forty-eight hours.

Explanation.- For the purposes of this sub-section,

"cash" means-

(a) coins and notes in any currency;

(b) postal orders;

SEC. IJ I H t U A i tl It Ul- 1NU1A bAlKAUKUINAKY

|1

(c) traveller's cheques;

(d) banker's drafts; and

(e) such other monetary instruments as the

Central Government or, as the case may be, the

State Government may specify by an order made in

writing. •

(7) Any person aggrieved by an order made by the

Designated Authority may prefer an appeal to the

Special Court and the Special Court may either confirm

the order of attachment of property or seizure so made or

revoke such order and release the property.

8. Where any property is seized or attached on the Forfeiture of proceeds of ground that it constitutes proceeds of terrorism and the terrorism.

Special Court is satisfied in this regard under sub-section

(7) of section 7, it may order forfeiture of such property,

whether or not the person from whose possession it is

seized or attached, is prosecuted in a Special Court for

an offence under this Ordinance.

Issue of show

9. (/) No order forfeiting any proceeds of terrorism

cause notice

shall be made under section 8 unless the person holding

before forfcitur

or in possession of such proceeds is given a notice in

of proceeds of

writing informing him of the grounds on which it is

terrorism.

proposed to forfeit the proceeds of terrorism and such

person is given an opportunity of making a

representation in writing within such reasonable time as

may be specified in the notice against the grounds of

forfeiture and is also given a reasonable opportunity of

being heard in the matter.

(2) No order of forfeiture shall be made under sub-

section (1), if such person establishes that he is a bona

fide transferee of such proceeds for value without12 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— knowing that they represent proceeds of terrorism.

(3) It shall be competent for the Special Court to make

an order in respect of property seized or attached,-

(a) directing it to be sold if it is a perishable

property and the provisions of section 459 of the

Code shall, as nearly as may be practicable, apply to

the net proceeds of such sale;

(b) nominating any officer of the Central or

State Government, in the case of any other

property, to perform the function of the

Administrator of such property subject to such

conditions as may be specified by the Special Court.

Appeal. 10. (7) Any person aggrieved by an order of forfeiture

under section 8 may, within one month from the date of

the receipt of such order, appeal to the High Court within

whose jurisdiction, the Special Court, who passed the

order appealed against, is situated.

(2) Where an order under section 8 is modified or

annulled by the High Court or where in a prosecution

instituted for the contravention of the provisions of this

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.

11. The order of forfeiture made under this Ordinance

by the Special Court, shall not prevent the infliction of

Order of

forfeiture not to

interfere with

other

punishments. any other punishment to which the person affected

thereby is liable under this Ordinance.

12. <7) Where any claim is preferred, or any objection

Claims by thiid

party.

is made to the seizure of any property under section 7 on

the ground that such property is not liable to seizure, the

Designated Authority before whom such property is

produced, shall proceed to investigate the claim or

objection:

Provided that no such investigation shall be made

where the Designated Authority considers that tne 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 forfeited under the Ordinance, the said

notice shall be withdrawn or modified accordingly.

13. The Designated Authority, acting under the

provisions of this Ordinance, shall have all the powers

Powers of

Designated

Authority.

of a Civil Court required for making a full and fair

enquiry into the matter before it.

14. (7) Notwithstanding anything contained in any Obligation to furnish other law, the officer investigating any offence under

information.

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, or a company, or a firm or any other

institution, establishment, organisation or any individual

to furnish information in their possession in relation to

such offence, on points or matters, where the14 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— 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 (/), 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 (/) shall be tried as a

summary case and the procedure prescribed in Chapter

XXI of the said Code [except sub-section (2) of section

262] shall be applicable thereto.

15. Where, after the issue of an order under section 7

or issue of a notice under section 9, any property referred

Certain transfers

to be null and

void.

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.

16. (7) Where any person is accused of any offence

under this Ordinance, it shall be open to the Special

Forfeiture of

property of

certain persons.

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, bySue. 1 ] THE GAZETTE OF INDIA EXTRAORDINARY 15 order in writing, declare that any property, movable or

immovable or both, belonging to the accused and

specified in the order, shall stand forfeited to the Central

Government or the State Government, as the case may

be, free from all encumbrances.

17. Where any shares in a company stand forfeited to Company to transfer shares to Government. 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

l of 1956.

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

CHAPTER m

TERRORIST ORGANISATIONS

18. (/) For the purposes of this Ordinance, an Declaration of an organisation as a terrorist organisation is a terrorist organisation if-

organisation.

(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.

(5) The Central Government may exercise its power

under clause (a) of sub-section (2) in respect of an16 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— organisation only if it believes that it is involved in

terrorism.

(0 For the purposes of sub-section (3), an

organisation shall be deemed to be involved in terrorism

ifit—

(a) commits or participates in acts of terrorism,

(b) prepares for terrorism,

(c) promotes or encourages terrorism, or

(d) is otherwise involved in terrorism.

19. (/) An application may be made to the Central

Denotification of a terrorist organisation. Government for the exercise of its power under clause

(b) of sub-section (2) of section 18 to remove an

organisation from the Schedule.

(2) An application may be made by—

(a) the organisation, or

(b) any person affected by inclusion of the

organisation in the Schedule as a terrorist

organisation

(3) The Central Government may make rules to

prescribe the procedure for admission and disposal of an

application made under this section.

(4) Where an application under sub-section (/) has

been refused, the applicant may apply for a review to the

Review Committee constituted by the Central

Government under sub-section (/) of section 60 within

one month from the date of receipt of the order by the

applicant.

(5) The Review Committee may allow an application

for review against refusal to remove an organisation from

the Schedule, if it considers that the decision to refuse

was flawed when considered in the light of the principlesSEC. I ] THE GAZETTE OF INDIA EXTRAORDINARY 17 applicable on an application for judicial review.

(tf) 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 (

Central Government shall, as soon as the certified copy

of the order is received by it, make an order removing

the organisation from the list in the Schedule.

20. (7) A person commits an offence if he belongs or

professes to belong to a terrorist organisation:

Offence relating

to membership

of a terrorist

organisation.

Provided that this sub-section shall not apply where

the person charged is able to prove-

(a) that the organisation was not declared as a

terrorist organisation at the time when he became a

member or began to profess to be a member; and

(b) that he has not taken part in the activities of the

organisation at any time during its inclusion in the

Schedule as a terrorist organisation.

(2) A person guilty of an offence under this section

shall be liable, on conviction, to imprisonment for a

term not exceeding ten years or with fine or with both.

21. (/') A person commits an offence if-

(a) he invites support for a terrorist

Offence relating

to support given

to a terrorist

prganisatioa

organisation, and

(*) 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 meeting1 8 THE GAZETTE OF [NDIA EXTRAORDINARY [PART II— 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 of this section, the

expression "meeting" means a meeting of three or more

persons whether or not the public are admitted.

22. (7) A person commits an offence if he-

(a) invites another to provide money or other

Fund raising for

a terrorist

organisation to

be an offence.

property, and

(6) 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

(6) intends that it should be used , or has

reasonable cause to suspect that it may be used,

for the purposes of terrorism.

(3) A person commits an offence if he-

(a) provides money or other property, and

(b) knows or has reasonable cause to suspect

that it will or may be used for the purposes ofSEC 1] THE GAZETTE OF INDIA EXTRAORDINARY 19 terrorism.

(

money or other property is a reference to its being

given, lent or otherwise made available, whether or not

for consideration.

(5) A person guilty of an offence under this section

shall be liable on conviction, to imprisonment for a term

not exceeding fourteen years or with fine or with both.

CHAPTER IV

SPECIAL COURTS

Special Courts.

23. (7) 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 (7), 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 before20 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— 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 ofSEC. 1 ] THE GAZETTE OF INDIA EXTRAORDINARY 21 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

Place of sitting

24. A Special Court may, on its own motion, or on an

application made by the Public Prosecutor and if it

consider? it expedient or desirable so to do, sit for any of

its proceedings at any place other than its ordinary place

of sitting:

Provided that nothing in this, section shall be

construed to change the place of sitting of a Special

Court constituted by a State Government to any place

outside that State.

25. (7) Notwithstanding anything contained in the Jurisdiction of Special Courts Code, every 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,-

(/) it is not possible to have a fair, impartial or

speedy trial; or

(//) 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

("/) it is not otherwise in the interests of

justice,

the Supreme Court may transfer any case pending before22 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— 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.

(5) The Supreme Court or the High Court, as the case

may be, may act under this section either on the

application of the Central Government or a party

interested and any such application shall be made by

motion, which shall, except when the applicant is the

Attorney-General of India, be supported by an affidavit

or affirmation.

26. (7) When trying any offence, a Special Court may

also try any other offence with which the accused may,

Power of Special Courts with respect to other offences.

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 authorised by this Ordinance or such

rule or, as the case may be, under such other law.

Power to direct 27. (/) When a police officer investigating a case

for samples, etc

requests the Court of a Chief Judicial Magistrate or the

Court of a Chief Metropolitan Magistrate in writing for

obtaining samples of handwriting, finger prints, foot

prints, photographs, blood, saliva, semen, hair, voice of

any accused person, reasonably suspected to be involved

in the commission of an offence under this Ordinance, it

shall be lawful for the Court of a Chief JudicialSEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 23 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 (7), the court shall draw

adverse inference against the accused.

28. (7) For every Special Court, the Central

Public

Prosecutors.

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 Pjublic Prosecutor under this section unless

he has been in practice as an Advocate for not less than

seven years or has held any post, for a period of not less

than seven years, under the Union or a State, requiring

special knowledge of law.

(3) Every person appointed as a Public Prosecutor or

an Additional Public Prosecutor or a Special Public

Prosecutor under this section shall be deemed to be a

Public Prosecutor within the meaning of clause (u) of

section 2 of the Code, and the provisions of the Code

shall have effect accordingly.

29. (7) Subject to the provisions of section 50, a Procedure and

powers of

Special Courts.

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

(/) 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 andSEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 25 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.

(•/) 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.

30. (/) Notwithstanding anything contained in the Protection of witnesses.

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.

(i) In particular, and without prejudice to the

generality of the provisions of sub-section (2), the

measures which a Special Court may take under that26 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— sub-section may include -

(a) the holding of the proceedings at a place to be

decided by the Special Court;

(h) 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 arc not

disclosed;

(J) 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 (i) shall be

punishable with imprisonment for a term which may

extend to one year and with fine which may extend to

one thousand rupees.

31. The trial under this Ordinance of any offence by a

Trial by Special Courts to have precedence. 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.

Certain

32. (7) Notwithstanding anything in the Code or in the

confessions

Indian Evidence Act, 1872, but subject to the provisions 1 of 1872 made to police

of this section, a confession made by a person before a

officers to be

police officer not lower in rank than a Superintendent of

taken into

Police and recorded by such police officer either in

consideration.

writing or on any mechanical or electronic device like

cassettes, tapes or sound tracks from out of which soundSEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 27 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 (7),

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.

(V) The person from whom a confession has been

recorded under sub-section (/), shall be produced before

the Court of a Chief Metropolitan Magistrate or the

Court of a Chief Judicial Magistrate along with the

, original statement of confession, written or recorded on

mechanical or electronic device within forty-eight hours.

(5) The Chief Metropolitan Magistrate or the Chief.

Judicial Magistrate, shall, record the statement, if any,

made by the person so produced and get his signature or

thumb impression and if there is any complaint of

torture, such person shall be directed to be produced for

medical examination before a Medical Officer not lower

in rank than an Assistant Civil Surgeon and thereafter,

he shall be sent to judicial custody.

33. Where, after taking cognizance of any offence, a

Special Court is of the opinion that the offence is not

Power to transfer cases to regular courts.

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.

Appeal.

34. (/) 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 (I) shall be heard

by a bench of two Judges of the High Court.

(3) Except as aforesaid, no appeal or revision shall lie

to any court from any judgment, sentence or order

including an interlocutory order of a Special Court.

(-/) Notwithstanding anything contained in sub-

section (3) of section 378 of the Code, an. appeal shall lie

to the High Court against an order of the Special Court

granting or refusing bail.

(5) Every appeal under this section shall be preferred

within a period of thirty days from the date of the

judgment, sentence or order appealed from:

Provided that the High Court may entertain an appeal

after the expiry of the said period of thirty days if it is

satisfied that the appellant had sufficient cause for not

preferring the appeal within the period of thirty days.

35. (/) The jurisdiction conferred by this Ordinance

on a Special Court, shall, until a Special Court is

constituted under section 23, in the case of any offence

Transitional provisions and Imnsfcr of pending proceedings.

punishable under this Ordinance, notwithstanding

anytning contained in the Code, be exercised by the

Court of Session of the division in which such offence

has been committed and it shall have all the powers and

follow the procedure provided under this Chapter.

(2) On and from the date when the Special Court is

constituted under section 23, every trial under the

provisions of this Ordinance, which would have been

required to be held before the Special Court, shall stand

transferred to that Court on the date on which it is

constituted.

CHAPTER V

INTERCEPTION OF COMMUNICATION IN CERTAIN

CASES

Definitions.

36. 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,-

(/) the radio portion of a cordless telephone

communication that is transmitted between the

wireless telephone hand-set and the base unit;

(//) any wire or oral communication;

(///) any communication made through a

tone only paging device; or

(;"') 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;

(

transmission made in whole or part through the use of

facilities for the transmission of communications by the

aid of wire, cable or other like connection between the

point of origin and the point of connection, between the

point of origin and the point of reception (including the

use of such connection in switching station) and such

term includes any electronic storage of such

communication.

37. The Central Government or the State Government,

as the case may be, may appoint an officer not below the

Appointment of Competent Authority.

rank of Secretary to the Government in the case of State

Government and not below the rank of Joint Secretary to

the Government in the case of Central Government, to

be the Competent Authority for the purposes of thisSEC. 11 THE GAZETTE OF INDIA EXTRAORDINARY 31 Chapter.

38. (/) 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 for authorisation of interception or wire, electronic or oral communication.

application in writing to the Competent Authority for an

order authorising or approving the interception of wire,

electronic or oral communication by the investigating

officer when he believes that such interception may

provide, or has provided evidence of any offence

involving a terrorist act.

(2) Each application shall include the following

information:-

(a) the identity of the investigating officer making

the application, and the head of the department

authorising the application;

(b) a statement of the facts and circumstances

relied upon by the applicant to justify his belief that an

order should be issued, including-

(0 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 p'.ace

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 the3 2 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— interception is required to be maintained, if the nature

of the enquiry is such that the authorisation of

interception should not automatically terminate after

the described type of communication has been first

obtained;

(d) a particular description of facts establishing

probable cause to believe that additional

communications of the same type will occur

thereafter; and

(

order, a statement setting forth the results thus far

obtained from the interception, or a reasonable

explanation of the failure to obtain such results

(5) The Competent Authority may require the

applicant to furnish additional oral or documentary

evidence in support of the application.

39. (/) Upon such application, the Competent

Authority may reject the application, or issue an order,

as requested or as modified, authorising or approving

Dccision by Competent Authority on application for interception.

interception of wire, electronic or oral communications,

if the Competent Authority determines on the basis of

the facts submitted by the applicant that-

(a) there is a probable cause for belief that an

individual is committing, has committed, or is about

to commit a particular offence described and made

punishable under sections 3 and 4 of this Ordinance;

(b) there is a probable cause of belief; that

particular communications concerning that offence

may be obtained through such interception;

(f) 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 arc being used or arc about to be used, in

connection with the commission of such offence,

leased to, or are listed in the name of or commonly

used by such person.

(2) Each order by the Competent Authority

authorising or approving the interception of any wire,

electronic or oral'communication under this section shall

specify-

(a) the identity of the person, if known, whose

communications arc to be intercepted;

(b) the nature and location of the communication

facilities as to which, or the place where, authority to

intercept is granted;

(c) a particular description of the type of

communication sought to be intercepted, and a

statement of the particular offence to which it relates;

(d) the identity of the agency authorised to

intercept the communications, and the person

authorising the application; and

(e) the period of time during which such

interception is authorised, including a statement as to

whether or not the interception shall automatically

terminate after the described communication has been

first obtained.

40. (7) The Competent Authority shall immediately

after passing the order under sub-section (1) of section

39, but in any case not later than seven days from the

Submission of Order of interception to Review Committee.

passing of the order, submit a copy of the same to the

Review Committee constituted under section 60 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 authorising the interception of a wire,

electronic or oral communication under this section

shall, upon request of the applicant, direct that a provider

of wire or electronic communication service, landlord,

custodian or other person shall furnish to the applicant

forthwith all information, facilities, and technical

assistance necessary to accomplish the interception

unobtrusively and with a minimum of interference with

the services that such service provider, landlord,

custodian, or person is providing to the person whose

communications are to be intercepted.

41. (/) No order issued under this section may Duration of an order of interception, etc. authorise or approve the interception of any wire,

electronic or oral communication for any period longer

than is necessary to achieve the objective of the

authorisation, nor in any event longer than sixty days

and such sixty days period shall begin on the day

immediately preceding the day on which the

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 (/) of section 38 and theSEC. 1 ] THE GAZETTE OF INDIA EXTRAORDINARY 3 5 Competent Authority making the findings required by

sub-section (/) of section 39, and the period of such

extension shall be no longer than the Competent

Authority deems necessary to achieve the purposes for

which it was granted and in no event for longer than

sixty days at a time.

(3) Every order and extension thereof shall contain a

provision that the authorisation to intercept shall be

executed as soon as practicable and shall be conducted in

such manner as to minimise the interception of

communications not otherwise subject to interception

under this section and shall terminate upon attainment of

the authorised objective, or in any event on the expiry of

the period of said order or extension thereof

Authority

42. (/) An interception under this Chapter may be

competent to

conducted in whole or in part by a public servant, acting

cany out

under the supervision of the investigating officer

interception.

authorised to conduct the interception.

(2) Whenever an order authorising an interception is

issued pursuant to this section, the order may require

reports to be made to the Competent Authority who

issued the order showing that progress has been made

towards achievement of the authorised objective and the

need for continued interception and such report shall be

made at such intervals as the Competent Authority may

require.

Interception of

43. (/) Notwithstanding anything contained in any

communication

other provision of this chapter, an officer not below the

in emergency.

rank of Additional Director General of Police or a police36 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— officer of equivalent rank who reasonably determines

that-

(a) an emergency situation exists that involvcs-

(/) immediate danger of death or serious

physical injury to any person;

(//) conspiratorial activities threatening the

security or interest of the State, or

(///) conspiratorial activities, characteristic of

a terrorist act, that requires a wire, electronic or

oral communication to be intercepted before an

order from the Competent Authority authorising

such interception can, with due diligence, be

obtained, and

(b) there are grounds on which an order should be

issued under this section to authorise such

interception,

may authorise, in writing, the investigating officer to

intercept such wire, electronic or oral communication, if

an application for an order approving the interception is

made in accordance with the provisions of sub-sections

(/) and (2) of section 38 within forty-eight hours after

the interception has occurred, or begins to occur.

(2) In the absence of an order approving the

interception made under sub-section (/), 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 (/) of

section 39 or an application under sub-section (/) of this

section for approval being rejected, or in any other caseSEC. 1 ] THE GAZETTE OF INDIA EXTRAORDINARY 3 7 where the interception is terminated without an order

having been issued, the contents of any wire, electronic

or oral communication intercepted shall be treated as

having been obtained in violation of this section

44. (1) The contents of any wire, electronic or oral

Prelection of information collected.

communication intercepted by any means authorised by

this chapter shall as far as possible, be recorded on tape

or wire or other comparable device and shall be done in

such manner as to protect the recording from editing or

other alterations.

(2) Immediately upon the expiration of the period of

order, or extension thereof, such recording shall be made

available to the Competent Authority issuing such order

and shall be scaled under his directions and kept in the

custody of such person or authority as the Competent

Authority orders, and such recordings shall not be

destroyed except upon an order of the Competent

Authority and in any event shall be kept for ten years.

(3) Applications made and orders issued under this

chapter shall be sealed by the Competent Authority and

custody of the applications and orders shall be kept in

such manner as the Competent Authority directs, and

shall not be destroyed except on an order of the

Competent Authority, and in any event shall be kept for

ten years.

45. 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

Admissibility of evidence collected through the interception of communications.

oral communication under this Chapter shall be3 8 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— admissible as evidence against the accused in the Court

during the trial of a case:

Provided that, the contents of any wire, electronic or

oral communication intercepted pursuant to this Chapter

or evidence derived therefrom shall not be received in

evidence or otherwise disclosed in any trial, hearing or

other proceeding in any court unless each accused has

been furnished with a copy of the order of the

Competent Authority, and accompanying application,

under which the interception was authorised or approved

not less than ten days before trial, hearing or proceeding:

Provided further that, the period of ten days may be

waived by the judge trying the matter, if he comes to the

conclusion that it was not possible to furnish the accused

with the above information ten days before the trial,

hearing or proceeding and that the accused will not be

prejudiced by the delay in receiving such information.

46. (/) The Review Committee constituted by the Review of authorisation order.

Central Government or the State Government, as the

case may be, shall review every order passed by the

Competent Authority under section 39.

(2) Every order passed by the Competent Authority

under section 39, or disapproved by the officer under

section 43, shall be placed before the Review

Committee, which shall be considered by the Review

Committee within ten days after its receipt, to decide

whether the order, was necessary, reasonable and

justified.

(3) The Review Committee, after examining the entire

record and holding such enquiry, if any, deemed

necessary may, by order in writing, either approve theSEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 39 order passed by the Competent Authority or may issue

order disapproving the same.

(-/) On issue of an order of disapproval by the

Review Committee, the interception, if any, already

commenced shall be forthwith discontinued and the

intercepted communication, if any, in the form of tape,

wire or other device shall, thereupon, not be admissible

as evidence in any case and shall be directed to be

destroyed.

47. Except as otherwise specifically provided in

section 39, any police officer who-

(CT) intentionally intercepts, endeavours to

Interception and disclosure of wire, electronic or oral communications prohibited.

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-

(/) such device is affixed to, or otherwise

transmits a signal through a wire, cable, or

other like connection used in wire

communication; or

(//) such device transmits communications

by radio, or interferesjvith 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 or40 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— having reason to know that the information war.

obtained through the interception of a wye,

electronic or oral communication in violation of this

Chapter;

(d) intentionally uses, or endeavours lo 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 unauthorised person the

contents of any wire, electronic or oral

communication, intercepted by means authorised by

section 39;

(/) intentionally continues the interception of

wire, electronic or oral communication after the

issue of an order of rejection by the Competent

Authority under this Chapter;

(g) intentionally continues the interception of

wire, electronic or oral communication after the

issue of an order of disapproval by the Review

Committee under sub-section (3) of section 46,

shall for such violation be punishable with

imprisonment for a term which may extend to one year

and with fine up to rupees fifty thousand.

48. (/) The Central Government and the State

Annual report of interceptions.

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 authorisation

of interceptions received by the Competent Authority

from the Police Department in which prosecutions

have been launched;

(//•) the number of such applications permitted

or rejected;

(//'/") the number of interceptions carried out in

emergency situations and the number of approvals

granted or rejected in such matters;

(/v) the number of prosecutions launched

based on such interceptions and convictions resulting

from such interceptions, alongwith an explanatory

memorandum giving general assessment of the utility

and importance of the interceptions authorised.

(2) An annual report shall be laid by the State

Government before the State Legislature within three

months of the completion of every calendar year:

Provided that, if the State Government is of the

opinion that the inclusion of any matter in the annual

report would be prejudicial to the security of the State or

to the prevention or detection of any terrorist act, the

State Government may exclude such matter from being

included in such annual report.

(3) An annual report shall be laid by the Central

Government before each House of Parliament within

three months of the completion of every calendar year :

Provided that, if the Central Government is of the

opinion that the inclusion of any matter in the annual

report would be prejudicial to the security of the country

or to the prevention or detection of any terrorist act, the

Central Government may exclude such matter from

being included in such annual report.

CHAPTER VI

MISCELLANEOUS

49. (1) Notwithstanding anything contained in the

Code or any other law, every offence punishable under

this Ordinance shall be deemed to be a cognizable

Modified application of ccrWiin provisions of llic Code

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)r

(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 farther 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 officerSEC. 1 ] THE GAZETTE OF INDIA EXTRAORDINARY 4? 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 (/) thcrcof-

(0 to "the State Government" shall be

construed as a reference to "the Central

Government or the State Government",

(//) 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".

(-/) 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 in44 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— relation to any case involving the arrest of any person

accused of having committed an offence punishable

under this Ordinance.

(<5) 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.

(S>) Notwithstanding anything contained in sub-

sections (tf), (7) and (#), 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.

50. No Court shall take cognizance of any offence

Cognizance of offences.

under this Ordinance without the previous sanction of

the Central Government or, as the case may be, the State

Government

51. Notwithstanding anything contained in the Code,

no police officer, -

(a) in the case of the Delhi Special Police

Officers competent to investigate ofTcnccs under this Ordinance.

Establishment, below the rank of a Deputy

Superintendent of Police or a police officer of

equivalent rank,

{b) in the metropolitan areas of Mumbai,

Kolkata, Chennai and Ahmedabad and any other

metropolitan area notified as such under sub-section

(/) of section 8 of the Code, below the rank of an

Assistant Commissioner of Police;

(c) in any other case not relatablc to clause (a)

or clause (b), below the rank of a Deputy

Superintendent of Police or a police officer of an

equivalent rank,

shall investigate any offence punishable under this

Ordinance.

Arrest. 52. (7) 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.

(7) The person arrested shall be permitted to meet the

legal practitioner representing him during the course of

interrogation of the accused person:

Provided that nothing in this sub-section shall entitle

the legal practitioner to remain present throughout the

period of interrogation.

53. (1) In a prosecution for an offence under sub-

Presumption as lo offences under section 3.

section (1) of section 3, if it is proved -

(a) that the arms or explosives or any other

substances specified in section 4 were recovered from

the possession of the accused and there is reason to

believe that such arms or explosives or other

substances of a similar nature, were used in the

commission of such offence; or

(b) that the finger-prints of the accused were

found at the site of the offence or on anything

including arms and vehicles used in connection with

the commission of such offence,

the Special Court shall draw adverse inference against

the accused.

(2) In a prosecution for an offence under sub-section

(3) of section 3, if it is proved that the accused rendered

any financial assistance to a person, having knowledge

that such person is accused of, or reasonably suspected

of, an offence under that section, the Special Court

shall draw adverse inference against the accused.

54. No civil court or other authority shall have or, be

entitled to, exercise any jurisdiction, powers or authority

Bar of jurisdiction of courts, etc.

in relation to the matters referred to in sections 19 and 40

of the Ordinance.

Saving. 55. (/) 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 (/), a Special Court shall be deemed to be a

court of ordinary criminal justice.

56. The provisions of this Ordinance shall have effect

Overriding 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.

57. No suit, prosecution or other legal proceeding

shall lie against the Central Government or a State

Protection of action taken in good faith.

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 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 combatinc terrorism.

58. (7) Any police officer who exercises powers

corruptly or maliciously, knowing that there are no

Punishment and compensation for malicious action.

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 the 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.

Impounding of 59. Notwithstanding anything contained in any other

passport and law for the time being in force, the passport and the arms

amis licence of licence of a person, who is charge-sheeted for having

person chargc- committed any offence under this Ordinance, shall be

shcclcd under deemed to have! been impounded for such period as the the Ordinance.

Special Court may deem fit.

60. (7) The Central Government and each State Review Committees.

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 has been, a Judge of a High Court, who shall

be appointed by the Central Government, or as the case

may be, the State Government, so however, that the

concurrence of the Chief Justice of the High Court shall

be obtained in the case of a sitting Judge:

Provided that in the case of a Union territory, the

appointment of a person who is a Judge of the High

Court of a State shall be made as a Chairperson with the

concurrence of the Chief Justice of the concerned High

Court.

61. The High Court may, by notification in the

Power of High Courts to make rules.

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.

62. (/) Without prejudice to the powers of the High

Power to make rules.

Courts to make rules under section 61, the Central

Government may, by notification in the Official

Gazette, make rules for carrying out the provisions of

this Ordinance.

(2) In particular, and without prejudice to the

generality of the foregoing powers, such rules may

provide for all or any of the following matters, namely. -

(a) regulating the conduct of persons in respect of

areas the control of which is considered necessary or

expedient and the removal of such persons from such

areas;

(b) the entry into, and search of,-

(/) any vehicle, vessel or aircraft; or

(//) 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;

(if) the arrest and trial of persons contravening

any of the rules or any order made thereunder;

(t?) 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;

(/) 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 (i) of section 19; and

(/) the qualifications of the members of the ReviewSEC 1 ] THE GAZETTE OF INDIA EXTRAORDINARY 51 Committee under sub-section (2) of section 60.

Orders and rule:

63. Every order and every rule made by the Central

to be laid before

Houses of

Government under this Ordinance shall be laid, as soon

Parliament.

as may be after it is made, before each House of

Parliament, while it is in session, for a total period of

thirty days which may be comprised in one session or in

two or more successive sessions, and if, before the

expiry of the session immediately following the session

or the successive sessions aforesaid, both Houses agree

in making any modification in the order or rule or both

Houses agree that the order or rule should not be made,

the order or rule shall thereafter have effect only in such

modified form or be of no effect, as the case may be; so,

however, that any such modification or annulment shall

be without prejudice to the validity of anything

previously done under that order or rule.

Ord. 9 of 2001.

64. (1) The Prevention of Terrorism Ordinance, 2001 is

Repeal and

saving.

hereby repealed.

(2) Notwithstanding such repeal, anything done or any

action taken under the said Ordinance, shall be deemed

to have been done or taken under the corresponding

provisions of this Ordinance.

SCHEDULE

(sec section 18)

TERRORIST ORGANISATIONS

1.

BABBAR KHALSA INTERNATIONAL

2. KHALI STAN COMMANDO FORCE

3. KHALISTAN ZINDABAD FORCE

4. INTERNATIONAL SIKH YOUTH FEDERATION.

5. LASHKAR-E-TAIBA/PASBAN-E-AHLEHAD1S.

6, JAISH-E-MOHAMMED/TAHRIK-E-FURQAN.

7. HARKAT-UL-MUJAHIDEEN/HARKAT-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.

. UNITED LEBERATION FRONT OF

U

ASSAM(ULFA).

12 . NATIONAL DEMOCRATIC FRONT OF

BODOLAND(NDFB)

13 . PEOPLE'S LIBERATION ARMY(PLA).

14 . UNITED NATIONAL LIBERATION

FRONT(UNLF).

15 . PEOPLE'S REVOLUTIONARY PARTY OF

KANGLEIPAK(PREPAK).

16 KANGLEIPAK COMMUNIST PARTY(KCP).

17 KANGLEI YAOL KANBA LUP(KYKL)

18 MANIPUR PEOPLE'S LIBRATION FRONT

(MPLF)

19. ALL TRIPURA TIGER FORCE

20. NATIONAL LIBERATION FRONT OF TRIPURA.

21. LIBERATION TIGERS OF TAMILSEC. 1 ] THE GAZETTE OF INDIA EXTRAORDINARY 5 3 EELAM(LTTE).

22.

STUDENTS ISLAMIC MOVEMENT OF INDIA

23. DEENDAR ANJUMAN,

24. COMMUNIST PARTY OF INDIA(MARXIST-

LENINIST)-PEOPLE'S WAR, ALL ITS

FORMATIONS AND FRONT

ORGANISATIONS.

25.

MAOIST COMMUNIST CENTRE(MCC),ALL ITS

FORMATIONS AND FRONT

ORGANISATIONS.

/explanation.- For the purposes of this Schedule, serial numbers 24 and 25 shall be deemed to have been included with effect from the date of publication of SO. No. 1194(E) dated the 5th December, 2001.

K.R NARAYANAN,

President

SUBHASHC.JAJN,

Secy, to the Govt of India!

PRINTED BY THE MANACER, 00 VERNMENT OF INDIA PBESS (PUj), MINTO ROAD, NEW DELHI

AND PUBUSHED BY THE COmROOER OF PUBLICATIONS, DBLHL 2001.

MGIP(PLU)MRND—4471GI—31-12-2001.