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Report No. 173

This is a stage where the investigation too has not yet begun; it beings with and after registration of FIRs. The suggestion is, therefore, impracticable and inappropriate. We are of the opinion that the provision suggested by us is more appropriate and at the same time more effective than the one contained in sub-clause (1) of section 19. Accordingly, we recommend that sub-clause (1) of section 19 be substituted by the following sub-section:

"(1) The police officer recording information in respect of an offence under this Act shall promptly forward copies of all the material including the FIR and its accompaniments to the Director General of Police and the Review Committee.

(2) It shall be open to the Director General of Police or the Review Committee to call for such further information, as they may deem necessary, from the police or any other person before approving or disapproving, as the case may be, the action taken by the subordinate authorities.

(3) If the Director General of Police does not approve the recording of the aforesaid information within 10 days or if the Review Committee does not approve the same within 30 days, the recording of the said information shall become null and void with effect from the tenth day or the thirtieth day, as the case may be, and all proceedings in that behalf shall stand withdrawn and if the accused is in custody, he shall be released forthwith unless required in connection with some other offence.

(4) Any action taken or any order passed under forgoing sub-sections shall be in addition to and independent of the review of pending cases by the Review Committee under section 27 of this Act.

Sub-clause (2) of section 19 provides that no court shall take cognizance of an offence under the Act without the previous sanction of the State Government or, as the case may be, of the Central Government (as amended by Official Amendments). In our opinion, this is a very salutory provision and an effective safeguard against frivolous or unfounded prosecutions.

By way of Official Amendments, a new clause, namely, clause 19A is sought to be inserted dealing with arrest. Sub-clause (1) of the proposed new section provides that "whenever a person is arrested, information of his arrest shall be immediately communicated by the police officer to a family member or to a relative of such person by telegram, telephone or by any other means which shall be recorded by the police officer under the signature of the person arrested".

Sub-clause (2) directs that where a police officer arrests a person, he shall provide a custody memo of the person arrested, while sub-clause (3) provides that "during the interrogation the legal practitioner of the person arrested shall be allowed to remain present and the person arrested shall be informed of his right as soon as he is brought to the police station". In its Working Paper, the Law Commission had supported the provisions in all the three sub-clauses of clause 19A. In particular, we were appreciative of the provision contained in sub-clause (3) which was evidently put in, in the light of the decision of the Supreme Court in Nandini Satpathy's case.

However, certain participants in the seminar including Mr. K.T.S. Tulsi, former Additional Solicitor General, opposed the provision contained in sub-section (3). They submitted that it is an impractical provision and is likely to hinder the proper interrogation of the accused. Mr. Tulsi also submitted that subsequent decisions of the Supreme Court had explained the observations in Nandini Satpathy's case. Be that as it may, we do not think it appropriate to recommend the deletion of this provision which has been designedly introduced by the Government of India.

A suggestion was put forward by Mr. U.R. Lalit, Senior Advocate, Supreme Court that this protection should be confined only to Indian citizens and should not be made available to non-citizens. He pointed out that today, the foreign mercenaries and the foreign terrorists outnumber local terrorists, particularly, in Jammu and Kashmir and that on account of their activities, a situation of proxy war is prevailing in Jammu and Kashmir. Learned counsel suggested that classifying the foreign terrorists for the purpose of sub-clause (3) of clause 19A as a separate group and denying them the said protection would be a case of reasonable and valid classification.

The suggestion is not only very attractive and appealing, there is good amount of justification in Mr. Lalit's contention that the entry in large numbers (according to certain estimates there are already 5000 foreign terrorists in Jammu and Kashmir and another 15000 to 30000 terrorists are waiting to enter the State with a view to creating conditions of total anarchy and chaos) is certainly creating a situation which is unparalleled anywhere in the world. The more disturbing factor is that the neighbouring country whose hostile intentions towards India are not a secret, is actively training, arming, directing and helping the foreign terrorists in all possible ways.

In such a situation, classifying the foreign terrorists as a distinct category from the local terrorists and restricting the protection in sub-clause (3) of clause 19A only to local terrorists i.e., who are citizens of India, may not be either unreasonable or unconstitutional. In this connection, it is highly relevant to notice that the Constitution itself makes such a distinction which would be evident from the following position: Clause (1) of article 22 says that "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice".

Clause (2) of the said article says that "Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate". But clause (3) of the very same article says that "Nothing in clauses (1) and (2) shall apply- (a) to any person who for the time being is an enemy alien".

In other words, the very significant constitutional safeguards contained in clauses (1) and (2) of article 22 are not available to enemy aliens. Indeed, the requirement in clause (1) of article 22 and more particularly the one in sub-clause (1) of clause 19A is not possible of compliance in the case of a foreign terrorist, inasmsuch as "a family member" or "a relative" of such foreign terrorist may not be in India and may also be difficult to locate. We, therefore, suggest that the requirement of informing the family member or relative shall be confined only to the person arrested if he is an Indian citizen.

Clause 20 specifies the officers who alone shall be competent to investigate an offence under this Act. Fairly high ranking officers are specified under this section which is again an assurance against abuse or misuse of the powers under the Act.

Clause 21 of the Bill creates certain presumptions in respect of the offences under the Act. Sub-clause (1) reads as follows:

"(1) In a prosecution for an offence under sub-section (1) of section 3, if it is proved-

(a) that the arms or explosives or any other substances specified in section 3 were recovered from the possession of the accused and there is reason to believe that such arms or explosives or other substances of a similar nature, were used in the commission of such offence; or

(b) that by the evidence of an expert the finger-prints of the accused were found at the site of the offence or on anything including arms and vehicles used in connection with the commission of such offence, the Special Court shall presume, unless the contrary is proved, that the accused had committed such offence."

In our opinion, such a presumption cannot be said to be uncalled for in an anti-terrorism law. However, on the analogy of disproportionate and excessive amplitude of presumption as drawn in respect of sub-clause (2) of clause 11A (introduced by Amendment 6 of the Official Amendment) discussed above, we recommend the similar modification here also. Sub-clause (2) creates yet another presumption.

It says that "in a prosecution for an offence under sub-section (3) of section 3, if it is proved that the accused rendered any financial assistance to a person, having knowledge that such person is accused of or reasonably suspected of an offence under that section, the special court shall presume, unless the contrary is proved, that such person has committed an offence under that sub-section" (as modified by the Official Amendments).

No objection has been taken to these proposals by any of the participants in the seminars. However, as stated above, the disproportionate and excessive amplitude of presumption should not be allowed to be drawn. We, therefore, recommend to substitute the words "shall presume under that sub-section" in the sub-clause (2) by the words "shall draw the adverse inference against the accused."

Clause 22 clarifies that the jurisdiction of the courts or authorities under the laws relating to naval, military, air force or other armed forces of the Union are not affected by this Act. It also clarifies that a special court under the Act shall be deemed to be a court of ordinary criminal jurisdiction.

Clause 23 gives overriding effect to the Act which again is unobjectionable. Sub-clause (1) of clause 24 provides for indemnity in favour of Central Government, State Government or any of their officers or authorities on whom powers have been conferred by the Act in respect of acts done or purported to be done by them in good faith. This is a usual provision in such enactments and no objection can be taken thereto. However, with a view to make the indemnity effective and complete, the following proviso be added to sub-clause (1) of clause 24 of the Bill:-

"Provided further that no suit, prosecution or other legal proceedings shall lie against any serving member or retired member of the Armed Forces or other para military forces in respect of any action taken or purported to be taken by him in good faith, in the course of any operation directed towards combating terrorism".

Sub-clause (2) of section 24 makes it an offence for a police officer to take proceedings against any person for any offence under the Act for corrupt or malicious reasons. It is sought to be modified in certain minor respects by Official Amendments. This provision again is a very salutory addition and is to be welcomed.

In this context, it may be appropriate to provide a remedy to the person who has been arrested and or proceeded against for offences under the proposed law for corrupt, extraneous or malicious reasons by the police officers. Provision of such a remedy is bound to act as a check upon the propensity of the police/investigating officer to misuse their powers and rope in innocents. The person so dealt with unlawfully should be awarded monetary compensation appropriate in the circumstances by the State itself. Indeed, if the exercise of power by the police or investigating officer is found to be actuated by corrupt, extraneous or malicious considerations, the monetary compensation to be awarded to the person concerned should be levied upon the concerned police/investigating officers.

It is true that while ratifying the International Covenant on Civil and Political Rights (1996) (ICCPR), the Government of India filed a specific reservation against article 9(5) of the said Covenant on the ground that the Indian legal system did not recognise a right to compensation for victims of unlawful arrest or detention, but the Supreme Court held in D.K. Basu v. State of West Bengal (1997 SCC (Cri) 92 at page 112) that the said reservation "has lost its relevance in view of the law laid down by this Court in a number of cases awarding compensation for the infringement of the fundamental right to life of a citizen". Be that as it may, a provision of such a remedy would be not only fair and just but also consistent with the democratic and developing concepts of criminal jurisprudence.

Clause 25 sought to be introduced by Official Amendments empowers the Supreme Court to make rules, if any, as it may deem necessary for carrying out the provisions of this Act relating to special courts. We are of the opinion that such a power should be conferred upon the High Courts in the country (and not upon the Supreme Court) in view of the fact that we are suggesting that an appeal against the judgment and order of the special court should lie to the High Court concerned and not to the Supreme Court.

Clause 26 sought to be inserted by Official Amendments confers rulemaking power upon the Central Government to carry out the purposes and provisions of the Act. Sub-section (2) elucidates the purposes and provisions mentioned in sub-section (1).

Clause 27 which is also proposed to be inserted by Official Amendments provides for constitution of Review Committees. Sub-clause (1) says that the Central Government shall constitute a Review Committee consisting of the Home Secretary, Law Secretary and Secretaries of the other concerned Ministries, if any, to review, at the end of each quarter in a year the cases instituted by the Central Government under this Act.

The Review Committee shall be competent to give such directions as it may think appropriate with respect to the conduct and continuance of any case or a class of cases, as the case may be. Sub-clause (2) contemplates constitution of similar committees by the State Governments. The Review Committee to be constituted by a State Government shall consist of the Chief Secretary to the Government, Home Secretary, Law Secretary and Secretaries of the other concerned departments.

Report on Prevention of Terrorism Bill, 2000 Back

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