The Mumbai attack by international terrorist organisations shook the psyche of every Indian including the political leaders.The kind of public outcry which erupted was unprecedented both in terms of number and intensity. The Govt lost no time and threw away the wardrob boy, Home Minister quickly and undertook a number of measures. It included establishment of much talked and needed Federal Investigating Agency with more sharp incisors and canine in the Jaws. It is in this perspective, the Parliament has passed the NIA bill and thus the NIA came into being. Simultaneously the Unlawful Activities (Prevention) Amendment Bill was also passed. It gives extra leverage to the law enforcing agencies in dealing with the acts of terror and related organised crime and low intensitly war which is going on for more than decades after the Indo- Pakistan war of 1971.
HERE IS THE TEXT OF THE ACT WHICH THE PARLIAMENT HAS PASSED-
THE NATIONAL INVESTIGATION AGENCY ACT, 2008
CHAPTER I
PRELIMINARY
1. (1) This Act may be called the National Investigation Agency Act, 2008.
(2) It extends to the whole of India and it applies also—
(a) to citizens of India outside India;
(b) to persons in the service of the Government wherever they may be; and
(c) to persons on ships and aircrafts registered in India wherever they may be.
2. (1) In this Act, unless the context otherwise requires,—
(a) “Agency” means the National Investigation Agency constituted under section 3 ;
(b) “Code” means the Code of Criminal Procedure 1973;
(c) “High Court” means the High Court within whose jurisdiction the Special Court is situated;
(d) “prescribed” means prescribed by rules;
(e) “Public Prosecutor” means a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor appointed under section 15;
(f) “Schedule” means Schedule to this Act;
(g) “Scheduled Offence” means an offence specified in the Schedule;
(h) “Special Court” means a Special Court constituted under section 11 or, as the
case may be, under section 21;
(i) words and expressions used but not defined in this Act and defined in the Code shall have the meanings respectively assigned to them in the Code.
(2) Any reference in this Act to any enactment or any provision thereof shall, in
relation to an area in which such enactment or such provision is not in force, be construed as a reference to the corresponding law or the relevant provision of the corresponding law, if any, in force in that area.
CHAPTER II
NATIONAL INVESTIGATION AGENCY
3. (1) Notwithstanding anything in the Police Act, 1861, the Central Government mayconstitute a special agency to be called the National Investigation Agency for investigation and prosecution of offences under the Acts specified in the Schedule.
(2) Subject to any orders which the Central Government may make in this behalf,officers of the Agency shall have throughout India in relation to the investigation of scheduled offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers have in connection with the investigation of offences committed therein.
(3) Any officer of the Agency of or above the rank of Sub-Inspector may, subject to any orders which the Central Government may make in this behalf, exercise throughout India, any of the powers of the officer-in-charge of a police station in the area in which he is present for the time being and when so exercising such powers shall, subject to any such orders as aforesaid, be deemed to be an officer-in-charge of a police station discharging the functions of such an officer within the limits of his station.
4. (1) The superintendence of the Agency shall vest in the Central Government.
(2) The administration of the Agency shall vest in an officer designated as the Director-General appointed in this behalf by the Central Government who shall exercise in respect of the Agency such of the powers exercisable by a Director-General of Police in respect of the police force in a State, as the Central Government may specify in this behalf.
5. Subject to the provisions of this Act, the Agency shall be constituted in such
manner as may be prescribed and the conditions of service of persons employed in the
Agency shall be such as may be prescribed.
Definitions.
Constitution of National Investigation Agency.
5 of 1861.
Superintendence of National investigation Agency.
Manner of constitution of Agency and conditions of service of members.
2 of 1974.
CHAPTER III
INVESTIGATION BY THE NATIONAL INVESTIGATION AGENCY
6. (1) On receipt of information and recording thereof under section 154 of the Code
relating to any Scheduled Offence the officer-in-charge of the police station shall forward the report to the State Government forthwith.
(2) On receipt of the report under sub-section (1), the State Government shall forward the report to the Central Government as expeditiously as possible.
(3) On receipt of report from the State Government, the Central Government shall
determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, whether the offence is a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency.
(4) Where the Central Government is of the opinion that the offence is a Scheduled
Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence.
(5) Notwithstanding anything contained in this section, if the Central Government is
of the opinion that a Scheduled Offence has been committed which is required to be
investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence.
(6) Where any direction has been given under sub-section (4) or sub-section (5), the
State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency.
(7) For the removal of doubts, it is hereby declared that till the Agency takes up the investigation of the case it shall be the duty of the officer-in-charge of the police station to continue the investigation.
7. While investigating any offence under this Act, the Agency, having regard to the
gravity of the offence and other relevant factors, may—
(a) if it is expedient to do so, request the State Government to associate itself
with the investigation; or
(b) with the previous approval of the Central Government transfer the case to the
State Government for investigation and trial of the offence.
8. While investigating any Scheduled Offence the Agency may also investigate any
other offence which the accused is alleged to have committed if the offence is connected with the Scheduled Offence.
9. The State Government shall extend all assistance and co-operation to the Agency
for investigation of the Scheduled Offences.
10. Save as otherwise provided in this Act, nothing contained in this Act shall affect the powers of the State Government to investigate and prosecute any Scheduled Offence or other offences under any law for the time being in force.
Investigation of Scheduled Offences. Power to transfer investigation to State Government. Power to investigate connected offences. State Government to extend assistance to National Investigation Agency. Power of State Government to investigate Scheduled Offences.
CHAPTER IV
SPECIAL COURTS
11. (1) The Central Government shall by notification in the Official Gazette, for the trial of Scheduled Offences, 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 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.
(3) A Special Court shall be presided over by a judge to be appointed by the Central
Government on the recommendation of the Chief Justice of the High Court.
(4) The Agency may make an application to the Chief Justice of the High Court for
appointment of a Judge to preside over the Special Court .
(5) On receipt of an application under sub-section (4), the Chief Justice shall, as soon as possible and not later than seven days, recommend the name of a judge for being appointed to preside over the Special Court.
(6) The Central Government may, if required, appoint an additional judge or additional judges to the Special Court, on the recommendation of the Chief Justice of the High Court.
(7) 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.
(8) 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 and the Central Government may by order direct that he shall continue as judge until a specified date or until completion of the trial of the case or cases before him as may be specified in that order.
(9) Where any additional judge or additional judges is or are appointed in a Special
Court, the judge of the Special Court may, from time to time, by general or special order, in writing, provide for the distribution of business of the Special Court among all judges including himself and the additional judge or additional judges and also for the disposal of urgent business in the event of his absence or the absence of any additional judge.
12. A Special Court may, on its own motion, or on an application made by the Public
Prosecutor and if it considers it expedient or desirable so to do, sit for any of its proceedings at any place other than its ordinary place of sitting.
13. (1) Notwithstanding anything contained in the Code, every Scheduled Offence
investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed.
(2) If, having regard to the exigencies of the situation prevailing in a State if,—
(a) it is not possible to have a fair, impartial or speedy trial; or
(b) it is not feasible to have the trial without occasioning the breach of peace or
grave risk to the safety of the accused, the witnesses, the Public Prosecutor or a judge of the Special Court or any of them; or
(c) it is not otherwise in the interests of justice,the Supreme Court may transfer any case pending before a Special Court to any other Special Court within that State or in any other State and the High Court may transfer any case pending before a Special Court situated in that State to any other Special Court within the State.
Power of Central Government to constitute Special Courts. Place of sitting.
Jurisdiction of Special Courts.
(3) The Supreme Court or the High Court, as the case may be, may act under this
section either on the application of the Central Government or a party interested and any such application shall be made by motion, which shall, except when the applicant is the Attorney-General for India, be supported by an affidavit or affirmation.
14.(1) When trying any offence, a Special Court may also try any other offence with
which the accused may, under the Code, be charged at the same trial if the offence is connected with such other offence.
(2) If, in the course of any trial under this Act of any offence, it is found that the accused person has committed any other offence under this Act or under any other law, the Special Court may convict such person of such other offence and pass any sentence or award punishment authorised by this Act or, as the case may be, under such other law.
15.(1) The Central 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 may also appoint for any case or class or group of cases a Special Public Prosecutor.
(2) A person shall not be qualified to be appointed as a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor under this section unless he has been in practice as an Advocate for not less than seven years or has held any post, for a period of not less than seven years, under the Union or a State, requiring special knowledge of law.
(3) Every person appointed as a Public Prosecutor or an Additional Public Prosecutor
or a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code, and the provisions of the Code shall have effect accordingly.
16. (1) A Special Court may take cognizance of any offence, without the accused being
committed to it for trial, upon receiving a complaint of facts that constitute such offence or upon a police report of such facts.
(2) Where an offence triable by a Special Court is punishable with imprisonment for a
term not exceeding three years or with fine or with both, the Special Court may, notwithstanding anything contained in sub-section (1) of section 260 or section 262 of the Code, try the offence in a summary way in accordance with the procedure prescribed in the Code and the provisions of sections 263 to 265 of the Code, shall so far as may be, apply to such trial: Provided that when, in the course of a summary trial under this sub-section, it appears to the Special Court that the nature of the case is such that it is not desirable 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 five lakh rupees.
(3) Subject to the other provisions of this Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session.
(4) Subject to the other provisions of this Act, every case transferred to a Special Court under sub-section (2) of section 13 shall be dealt with as if such case had been transferred under section 406 of the Code to such Special Court.Powers of Special Courts with respect to other offences.
Public Prosecutors.Procedure and powers of Special Courts.
(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.
17. (1) Notwithstanding anything contained in the Code, the proceedings under this
Act may, for reasons to be recorded in writing, be held in camera if the Special Court so desires.
(2) 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, if the Special Court is satisfied that the life of such witness is in danger, it may, for reasons to be recorded in writing, take such measures as it deems fit for keeping the identity and address of such witness secret.
(3) In particular, and without prejudice to the generality of the provisions of subsection
(2), the measures which a Special Court may take under that sub-section may include—
(a) the holding of the proceedings at a place to be decided by the Special Court;
(b) the avoiding of the mention of the names and addresses of the witnesses in
its orders or judgments or in any records of the case accessible to public;
(c) the issuing of any directions for securing that the identity and address of the
witnesses are not disclosed;
(d) a decision that it is in the public interest to order that all or any of the
proceedings pending before such a Court shall not be published in any manner.
(4) Any person who contravenes any decision or direction issued under sub-section(3) shall be punishable with imprisonment for a term which may extend to three years and
with fine which may extend to one thousand rupees.
18. The trial under this Act of any offence by a Special Court shall be held on day-today basis on all working days and 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, if necessary, remain in abeyance.
19. Where, after taking cognizance of any offence, a Special Court is of the opinion
that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such offence to any court having jurisdiction under the Code and the Court to which the case is ransferred may proceed with the trial of the offence as if it had taken cognizance of the offence.
20. (1) Notwithstanding anything contained in the Code, an appeal shall lie from any
judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.
(2) Every appeal under sub-section (1) shall be heard by a bench of two Judges of the
High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.
(3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment,sentence or order including an interlocutory order of a Special Court.
(4) Notwithstanding anything contained in sub-section (3) of section 378 of the Code,
an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.
(5) Every appeal under this section shall be preferred within a period of thirty days
from the date of the judgment, sentence or order appealed from:
Protection of witnesses. Trial by Special Court to have precedence.
Power to transfer cases to regular courts.
Appeals.
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:Provided further that no appeal shall be entertained after the expiry of ninety days.
21. (1) The State Government may constitute one or more Special Courts for the trial of offences under any or all the enactments specified in the Schedule.
(2) The provisions of this Chapter shall apply to the Special Courts constituted by the State Government under sub-section (1) and shall have effect subject to the following modifications, namely—
(i) references to “Central Government” in sections 11 and 15 shall be construed
as references to State Government;
(ii) reference to “Agency” in sub-section (1) of section 13 shall be construed as
a reference to the “investigation agency of the State Government”;
(iii) reference to “Attorney-General for India” in sub-section (3) of section 13
shall be construed as reference to “Advocate-General of the State”.
(3) The jurisdiction conferred by this Act on a Special Court shall, until a Special Court is constituted by the State Government under sub-section (1) in the case of any offence punishable under this Act, notwithstanding anything contained in the Code, be exercised by the Court of Session of the division in which such offence has been committed and it shall have all the powers and follow the procedure provided under this Chapter.
(4) On and from the date when the Special Court is constituted by the State Government the trial of any offence investigated by the State Government under the provisions of this Act, which would have been required to be held before the Special Court, shall stand transferred to that Court on the date on which it is constituted.
CHAPTER V
MISCELLANEOUS
22. The High Court may, by notification in the Official Gazette, make such rules, as it may deem necessary for carrying out the provisions of this Act relating to Special Courts within its territory.
23. (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette make such provisions, not inconsistent with the provisions of this Act, as may appear to it to be necessary or expedient for removing the difficulty:Provided that no order shall be made, under this section after the expiration of two years from the commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.
24. (1) The Central Government may, by notification in the official Gazette, make rules for carrying out the provisions of this Act.
(2) In particular, and without prejudice to the generality to the foregoing power, such rules may provide for all or any of the following matters, namely:—
(a) the manner of constitution of the Agency and the conditions of service of
persons employed in the Agency under section 5; Power of State Government to institute Special Courts. Power of High Courts to make rules.
Power to remove difficulties.
Power to make rules.
(b) any other matter which is required to be, or may be, prescribed.
25. Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agrees in making any modification in the rule or both Houses agree that the rule should not be made, the 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 rule.
Laying of rules.
THE SCHEDULE
[See section 2(1)(f)]
