TERRORIST AFFECTED AREAS (SPECIAL COURTS) ACT 1984

THE TERRORIST AFFECTED AREAS (SPECIAL COURTS) ACT, 1984

ACT No. 61 OF 1984

31stAugust, 1984

An Act to provide for the speedy trial of certain offences interrorist affected areas and for matters connected therewith

Be it enacted by Parliament inthe Thirty–fifth Year of the Republicof India as follows: –

1.Short title and commencement: (1) This Act may be called theTerrorist Affected Areas (Special Courts) Act.1984.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall be deemed to havecome into force on the 14th day of July, 1984.

2.Definitions: (1) In this Act, unless the context otherwiserequires, –

(a) "Code" means theCode of Criminal procedure, 1973 (2 of 1974);

(b) "High Court" inrelation to a Special Court,means the High Court within the territorial limits of whose jurisdiction such Special Court isproposed to, or is, established:

(c) "judicialzone" means a judicial zone constituted under sub–section(1) ofsection 3;;

(d) "notification"means a notification published in the Official Gazette;

(e) "PublicProsecutor" means a Public Prosecutor or an Additional Public Prosecutoror a Special Public Prosecutor appointed under section 9 and included anyperson acting under the directions of the Public Prosecutor;

(f) "scheduledoffence" means an offence specified in the Schedule being an offencecommitted in a terrorist affected area;

(g) "Special Court" means a Special Court or anAdditional special Court established under section 4;

(h) "terrorist" meansa person who indulges in wanton killing of persons or in violence or in thedisruption of services or means of communication essential to the community orin damaging property with a view to—

(i) puttingthe public or any section of the public in fear; or

(ii) affectingadversely the harmony between different religious, racial, language or regionalgroups or castes or communities; or

(iii) coercingor overawing the Government established by law; or

(iv) endangeringthe sovereignty and integrity of India;

(i) "terroristaffected area " means an area declared as a terrorist affected area undersection 3;

(j) wordsand expressions used but not defined in this Act and defined in the Code shallhave the meanings respectively assigned to them in the Code.

(2) Any reference in this Actto the Code or any provision thereof shall, in relation to an area in which theCode or such provision is not in force, be construed as a reference to thecorresponding law or the relevant provision of the corresponding law, if any,in force in that area

3.Declaration of terrorist affected area: (1) If the Central Governmentis of the opinion that offences of the nature specified in the Schedule arebeing committed in any area by terrorists on such a scale and in such a mannerthat it is expedient for the purpose of coping with the activities of suchterrorists to have recourse to the provisions of this Act, it may, benotification:

(a) declaresuch area to be a terrorist affected area; and

(b) constitutesuch area into a single judicial zone or into as many judicial zones as it maydeem fit.

(2) A notification issued undersub–section (1) in respect of an area shall specify the period duringwhich the area shall, for the purposes of this Act, be a terrorist affectedarea, and where the Central Government is of the opinion that terrorists hadbeen committing in that area, from a date earlier that the date of issue of thenotification, offences of the nature specified in the Schedule on such a scaleand in such a manner that it is expedient to commence the period specified inthe notification from such earlier date, the period specified in thenotification may commence from that date;

Provided that: –

(a) no period commencing from adate earlier than six months from the date of publication of the notificationshall be specified therein; and

(b) so much of the periodspecified in such notification as is subsequent to the date of publication ofthe notification shall not, in the first instance, exceed six months, but theCentral Government may, by notification, extend such period from time to timeby any period not exceeding six months at any one time, if the CentralGovernment, having regard to the activities of terrorists in such area, is ofthe opinion that it is expedient so to do.

Explanation: – For theavoidance of doubts, it is hereby declared that the period specified innotification issued under this section may commence from a date earlier thanthe date of commencement of this Act.

4.Establishment of SpecialCourts: (1) For the purpose ofproviding for speedy trial of scheduled offences committed in a judicial zone,the Central government may establish, by notification, a Special Court inrelation to such judicial zone: –

(a) withinsuch judicial zone; or

(b) if the Central Governmenthaving regard to the exigencies of the situation prevailing in such judicialzone considers it expedient so to do, at any place outside such judicial zonebut within the State in which such judicial zone is situated.

(2) Notwithstanding anythingcontained in sub–section (1), if, having regard to the exigencies of thesituation prevailing in a State, the State Government if of the opinion that itis expedient to establish in relation to a judicial zone, or in relation to twoor more judicial zones, in the State, an Additional Special Court outside theState, for the trial of such scheduled offences committed in the judicial zoneor judicial zones the trial whereof with the State: –

(a) isnot likely to be fair or impartial or completed with utmost dispatch; or

(b) is not likely to befeasible without occasioning a breach of peace or grave risk to safety of theaccused, the witnesses, the Public Prosecutor and the Judge or any of them; or.

(c) isnot otherwise in the interests of justice.

the State Government mayrequest the Central Government to establish in relation to such judicial zoneor judicial zones an Additional l Special Court outside the State and thereuponthe Central Government may, after taking into account the information furnishedby the State Government and making such inquiry, if any, as it may deem fit,establish, by notification, such Additional Special Court at such place outsidethe State as may be specified in the notification.

5.Composition and appointment of Judges ofSpecial Courts: (1) ASpecial Court shall be presided over by a Judge to be appointed by the CentralGovernment with the concurrence of the Chief Justice of the High Court.

(2) The Central Government mayalso appoint, with the concurrence of the Chief Justice of the High Court,Additional Judges to exercise jurisdiction in Special Court.

(3) A person shall not bequalified for appointment as a Judge or an Additional Judge of a Special Courtunless he is immediately before such appointment a Sessions Judge or anAdditional Sessions Judge in any State.

(4) For the removal of doubts,it is hereby provided that the attainment by a person, appointed as a Judge oran Additional Judge of a SpecialCourt, of age of superannuation under the rules applicableto him in the Service to which he belongs, shall not affect his continuance assuch Judge or Additional Judge.

(5) Where any Additional Judgeor Additional Judges is, or are, appointed in a Special Court, the Judge of theSpecial Court may, from time to time, by general or special order, in writing,provide for the distribution of business of the Special Court among himself andthe Additional Judge or Additional Judges and also for the disposal of urgentbusiness in the event of his absence or the absence of any Additional Judge.

6.Place of sitting: A Special Court ma, if itconsiders it expedient or desirable so to do, sit for any of its proceedings atany place, other than the ordinary place of its sitting, in the State in whichit is established;

Provided that if the PublicProsecutor certifies to the Special Court that it is in his opinion necessaryfor the protection of the accused or any witness or otherwise expedient in theinterests of justice that the whole or any part of the trail should be held atsome place other than the ordinary place of its sitting, the Special Court may,after hearing the accused, make an order to that effect unless for reasons tobe recorded in writing, the Special Court thinks fit to make any other order.

7.Jurisdiction of Special Court:(1) Notwithstanding anythingcontained in the Code or in any other law, a scheduled offence committed in ajudicial zone in a State at anytime during the period during which suchjudicial zone is, of is part of, a terrorist affected area shall be triable,whether during or after the expiry of such period, only by the Special Courtestablished for such judicial zone in the State;

Provided that where the periodspecified under sub–section (2) of section 3 as the period during which anarea declared by notification under sub–section (1) of that section tobe a terrorist affected area commences from a date earlier than the date onwhich such notification is issued, then: –

(a) nothing in the foregoingprovisions of this sub–section shall apply to a scheduled offencecommitted in such area in which the whole of the evidence for the prosecutionhas been taken before the date of issue of such notification; and

(b) all other cases involvingscheduled offences committed in such area and pending before any courtimmediately before the date of issue of such notification shall standtransferred to the Special Court having jurisdiction under this section and theSpecial Court to which such proceedings stand transferred shall proceed withsuch cases from the stage at which they were pending at that time.

(2) Notwithstanding anythingcontained in sub–section (1), if in respect of a case involving ascheduled offence committed in any judicial zone in a State, the CentralGovernment, having regard to the provisions of sub–section (2) ofsection 4 and the facts and circumstances of the case and all other relevantfactors, is of the opinion that it is expedient that such offence should betried by the Additional Special Court established in relation to such judicialzone outside the State, the Central Government may make a declaration to thateffect;

Provided that no suchdeclaration shall be made unless the State Government has forwarded to theCentral Government a report in writing containing a request for making of suchdeclaration.

Explanation: Where anadditional Special Court is established in relation to two or more judicialzones, such Additional Special Court shall be deemed, for the purposes of thissub–section, to have been established in relation to each of suchjudicial zones.

(3) A declaration made undersub–section (2) shall not be called in question in any court.

(4) Where any declaration ismade in respect of any offence committed in judicial zone in a State, anyprosecution in respect of such offence shall be instituted only in theAdditional Special Court established in relation to such judicial zone outsidethe State, and if any prosecution in respect of such offence is pendingimmediately before such declaration in any other court, the same shall standtransferred to such Additional special Court and such Additional Special Courtshall proceed with such case from the stage at which it was pending at thetime.

8.Powers of Special Courts with respectto other offences: (1) When trying any scheduled offence, a Special Court may alsotry any offence other than the scheduled offence with which the accused may,under the Code, be charged at the same trial if the offence is connected withthe scheduled offence.

(2) If, in the course of anytrial under this Act , it is found that the accusedperson has committed any offence, the Special Court may, whether such offenceis or is not a scheduled offence, convict such person of such offence and passany sentence authorised by law for the punishment thereof.

9.Public Prosecutors: (1) For every Special Court,the Central Government shall appoint a person to be the Public Prosecutor andmay appoint one or more persons to be the Additional Public Prosecutor orAdditional Public Prosecutors;

Provided that the CentralGovernment may also appoint for any case or class of cases a Special PublicProsecutor.

(2) A person shall be eligibleto be appointed as a Public Prosecutor or an Additional Public Prosecutor or aSpecial Public Prosecutor under this section only if he has been in practice asan Advocate for not less than seven years or has held any post, for a period ofnot less than seven years, under the Union or a state, requiring specialknowledge of law.

(3) Every person appointed as aPublic Prosecutor or an Additional Public Prosecutor or a Special PublicProsecutor under this section shall be deemed to be a Public Prosecutor withinthe meaning of clause (u) of section 2 of the Code, and the provisions of theCode shall have effect accordingly.

10.Procedureand powers of Special Courts: (1) A Special Court may take cognizance of any scheduled offence,without the accused being committed to lit for trial, upon receiving acomplaint of facts which constitute such offence or upon a police report ofsuch facts.

(2) Where a scheduled offenceis punishable with imprisonment for a term not exceeding three years or withfine or with both, a Special Court may, notwithstanding anything contained insub–section (1) of section 260 or section 262 of the Code, try theoffence in a summary way in accordance with the procedure prescribed in theCode and the provisions of sections 263 to 265 of the Code, shall, so far asmay be, apply to such trial.

Provided that when, in thecourse of a summary trial under this sub–section it appears to theSpecial Court that the nature of the case is such that it is undesirable to tryit in a summary way the special Court shall recall any witnesses who may havebeen examined and proceed to re–hear the case in the manner provided bythe provisions of the code for the trial of such offence and the saidprovisions shall apply to and in relation to a Special Court as they apply toand in relation to a Magistrate:

Provided further that in thecase of any conviction in a summary trial under this section, it shall belawful for a Special court to pass a sentence of imprisonment for a term notexceeding two years

(3) A Special Court may, with aview to obtaining the evidence of any person supposed to have been directly orindirectly concerned in, or privy to, an offence tender a pardon to such personon condition of his making a full and true disclosure of the wholecircumstances within his knowledge relative to the offence and to every otherperson concerned whether as principal or abettor in the commission thereof, andany pardon so tendered shall, for the purposes of section 308 of the Code, bedeemed to have been tendered under section 307 thereof.

(4) Subject to the otherprovisions of this Act, a Special Court shall for the purpose of trial of anyoffence, have all the powers of a Court of session and shall try such offenceas if it were a Court of session so far as may be in accordance with theprocedure prescribed in the Code for the trial before a Court of Session.

(5) Subject to the otherprovisions of this Act, every case before an Additional Special Court shall bedealt with as if such case had been transferred under section 406 of the Codeto such Additional Special Court.

11.Powerof Supreme Court to transfer case: Whenever it is made to appear to the Supreme Court that an orderunder this section is expedient for the ends of justice, it may direct that anyparticular case be transferred from one Special Court to another special Court.

12.Protectionof witnesses: (1) Notwithstandinganything contained in the Code, all proceedings before a Special Court shall beconducted in camera;

Provided that where the PublicProsecutor so applies, any proceedings or part thereof may be held in opencourt.

(2) A Special Court may, on anapplication made by a witness in any proceedings before it or by the PublicProsecutor in relation to such witness or on its own motion, take such measuresas it deems fit for keeping the identity and address of the witness secret.

(3) In particular and withoutprejudice to the generality of the provisions of sub–section (2), themeasures which a Special Court may take under that sub–section mayinclude—

(a) theholding of the proceedings at a protected place;

(b) theavoiding of the mention of the names and addresses of the witness in its ordersor judgements or in any records of the case accessible to public;

(c) theissuing of any directions for securing that the identity and addresses of thewitnesses are not disclose

(4) Any person who contravenesany direction issued under sub–section (2) shall be punishable withimprisonment for a term which may extend to one year and with fine which mayextend to one thousand rupees.

13.Powerto transfer cases to regular courts: Where after taking cognizance of any offence, aSpecial Court is of opinion that the offence is not a scheduled offence, itshall, notwithstanding that lit has no jurisdiction to try such offence,transfer the case for trial of such offence to any court having jurisdictionunder the Code and the court to which the case is transferred may proceed withthe trial of the offence as if it has taken cognizance of the offence.

14.Appeal: (1) Notwithstanding anythingcontained in the Code, an appeal shall lie as a matter of right from any judgment,sentence or order, not being interlocutory order, of a Special Court to theSupreme Court both on facts and on law.

(2) Except as aforesaid, noappeal or revision shall lie to any court from any judgment, sentence or orderof a special Court.

(3) Every appeal under thissection shall be preferred within a period of thirty days from the date of thejudgment, sentence or order appealed from:

Provided that the Supreme Courtmay entertain an appeal after the expiry of the said period of thirty days ifit is satisfied that the appellant had sufficient cause for not preferring theappeal within the period of thirty days.

15.Modifiedapplication of certain provisions of the Code: (1) Notwithstanding anything contained in the codeor any other law, every scheduled offence shall be deemed to be a cognizableoffence within the meaning of clause (c) of section 2 of the Code and"cognizable case" as defined in that clause shall be construedaccordingly.

(2) Section 167 of the Codeshall apply in relation to a case involving a scheduled offence subject to themodifications that—

(a) thereference in sub–section (1) thereof to "Judicial Magistrate"shall be construed as reference to "Judicial Magistrate or ExecutiveMagistrate

(b) the references in sub–section(2) thereof to "fifteen days", "ninety day" and "sixtydays", wherever they occur, shall be construed as references to"thirty days", "one year" and "one year",respectively; and

(c) sub–section(2A) thereof shall be deemed to have been omitted.

(3) Sections 366 to 371 andsection 392 of the Code shall apply in relation to a case involving a scheduledoffence subject to the modifications that the references to "Court ofSession" and High court", wherever occurring therein, shall be construedas references to "Special Court" and Supreme Court"respectively.

(4) Nothing in section 438 ofthe Code shall apply in relation to any case involving the arrest of any personon an accusation of having committed a scheduled offence in a terroristaffected area..

(5) notwithstandinganything contained in the Code, no person accused of a scheduled offence shall,if in custody, be released on bail or on his own bond unless–

(a) thePublic Prosecutor has been given an opportunity to oppose the application forsuch release, land

(b) wherethe Public Prosecutor opposes the application, the court is satisfied thatthere are reasonable grounds for believing that he is not guilty of suchoffence and that he is not likely to commit any offence while on bail.

(6) The limitations on grantingof bail specified in sub–section (5) are in addition to the limitationsunder the Code or any other law for the time being in force on granting ofbail.

¹ [15A.Abolition of certain Special Courts: Where the areacomprising a judicial zone has ceased to be a terrorist affected area and nocases are pending before a Special Court or an Additional Special Courtestablished in relation to such judicial zone, the Central Government may, bynotification in the Official Gazette, abolish such Special Court or AdditionalSpecial Court.]

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1. Section 15A inserted by theTerrorist Affected Areas (Special Courts) Amendment Act, 1985 (45 of 1985)Section 2.

16.Overridingeffect of Act: (1) Theprovisions of this Act shall have effect notwithstanding anything contained inthe Code or any other law, but save as expressly provided in this Act, theprovisions of the Code shall, in so far as they are not inconsistent with theprovisions of this Act, apply to the proceedings before a Special Court; andfor the purpose of the said provisions of the Code, the Special Court shall bedeemed to be a Court of Session

(2) In particular and withoutprejudice to the generality of the provisions contained in sub—section(1), the provisions of sections 326 and 475 of the Code shall, as far as maybe, apply to the proceedings before a Special Court, and for this purpose anyreference in those provisions to a Magistrate shall be construed as referenceto the Special Court.

17.Delegation:The Central Government may, by notification, delegate,subject to such conditions as may be specified, all or any of the powersexercisable by it under this Act [except the power under sub–section (2)of section 4 and the power under sub–section (2) of section 7] to theState Government.

18.Powerto make rules: TheSupreme Court may, by notification, make such rules, if any, as it may deemnecessary for carrying out the purposes of this Act.

19.Saving: (1) Nothing in this Act shallaffect the jurisdiction exercisable by, or the procedure applicable to, anycourt or other authority under any law relating to the naval, military or airforces or any 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 toin sub–section (1), a Special Court shall be deemed to be a Court ofordinary criminal justice.

20.Amendmentof Act 1 of 1872: In the Indian evidence act, 1872, after section 111, thefollowing section shall be inserted, namely: –

"111A.Presumption as to certain offences: (1) Where a person is accusedof having committed any offence specified in sub–section (2), in –

(a) any area declared to be adisturbed area under any enactment, for the time being in force, makingprovision for the suppression of disorder and restoration and maintenance ofpublic order; or

(b) anyarea in which there has been, over a period of more than one month, extensivedisturbance of the public peace,.

and it is shown that suchperson had been at a place in such area at a time when firearms or explosiveswere used at or from that place to attack or resist the members of any armedforces or the forces charged with the maintenance of public order acting in thedischarge of their duties, it shall be presumed, unless the contrary is shown,that such person had committed such offence.

(2) The offences referred to insub–section (1) are the following, namely: –

(a) anoffence under section 121, section 121A, section 122 or section 123 or theIndian Penal Code(45 of 1860).

(b) criminalconspiracy or attempt to commit, or abetment of an offence under section 122 orsection 123 of the Indian Penal Code(45 of 1860)."

21.Repealand saving: (1) TheTerrorist Affected Areas (Special Courts) Ordinance, 1984(9 of 1984) is herebyrepealed.

(2) Notwithstanding suchrepeal, anything done or any action taken under the said Ordinance shall bedeemed to have been done or taken under the corresponding provisions of thisAct..

¹ [THESCHEDULE

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1. Substituted for the originalSCHEDULE by the Terrorist Affected Areas (Special Courts) Amendment Act, 1985(45 of 1985) Section 3.

[Seesection 2 (f)]

1.Offences under the following provisions of the Indian Penal Code: – (45 of1860)

Sections 121, 121A, 122 and 123.

2.Offences under the following provisions of the Anti-Hijacking Act, 1982(65 of 1982)

Sections 4 and 5.

NOTE 1: The offence ofcriminal conspiracy or attempt to commit, or abetment of, an offence specified in thisSchedule shall be deemed to be a scheduled offence.

NOTE 2: The commissionof an offence specified in this Schedule by any member of an unlawful assemblyshall be deemed to be the commission of that scheduled offence by every othermember of the unlawful assembly.]