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From: Sukla Sen <suklasen@yahoo.com> Date: Wed Jun 1, 2005 Subject: Communal Violence (Prevention) Bill: Some Critical Comments and the Text [The following is an introductory note from a legally illiterate activist. I. Any serious Act, meant to prevent/deter/reduce incidences of large-scale communal violence, must encompass a three-phased approach. It must have provisions to ensure (i) adequate monitoring and scuttling of build up of tensions through hate propaganda and spreading of rumours etc.; (ii) prompt, unbiased and effective intervention to contain/quell violence and protection for the actual and likely victims; and finally (iii) relief and rehabilitation for the victims, speedy identification of and strict justice for the perpetrators and also stringent punishment for the negligent/colluding State officials. II. As our experiences show, the biased approach of the State machinery is one of the major problems. But their services can hardly be dispensed with. So the Act must create a special (largely autonomous) body at the state levels, which will have statutory powers to direct and supervise the operations of the State machineries pertaining to communal violence. In order to ensure its unbiased character it must include authentic representatives of the likely victims / intended beneficiaries - the religious, linguistic, ethnic minorities. The state human rights / minority commissions, reorganised for this purpose, or some specific wings of theirs may be the appropriate agency. These bodies must directly report to the president of India but accountable to the legislatures. III. Special central security force, having adequate representation of various ???minorities??™ including women, must be raised. They may be deployed at the request of the special body constituted at the state level. Once deployed, they should directly report to such bodies. IV. There must be special courts to try the cases of atrocities. Public prosecutors are to be appointed only with the consent of the victims. The judges must be vetted by the autonomous commission. Provisions similar to those in (Dalit) Atrocities Act must be incorporated. Any negligence in lodgement of FIRs must be treated as a serious offence. CONCLUSION Vesting of additional powers in the existing structures, who are by all means the parts of the problem, would lead only to further victimisation of the victims. This must be avoided like plague. Sukla Sen] HUMAN RIGHTS & LAW UNIT DOCUMENTATION INDIAN SOCIAL INSTITUTE Centre for Reseach, Training and Action for Socio-Economic Development and Human Rights Lodhi Road, New Delhi - 110003 (INDIA) Email: hru@..., Phone:24622379/ 24625015 Web Site : http://www.isidelhi.com Communal Violence (Prevention) Bill 2005. A Criticism Dr. Mukul Sinha, Jansangharsh Manch, Gujarat. 1. The proposed law aspires to prevent and/or punish any person or a group of persons from indulging/ instigating or perpetrating communal violence and also provide relief/rehabilitation and compensation for the victims of communal violence. 2. The method and mechanism proposed to achieve these objectives are: 1. Declaration of areas as "communally disturbed areas" u/s 3(1) either by the State Government or the Central Government OR by the Central Government u/s 4(1) and empowering the respective Governments "to take all measures which may be necessary to deal with the situation" 2. Empowering the Central Government to deploy the armed forces u/s 5(a) and further empowering "any commissioned officer, warrant officer, noncommissioned officer or any other person of equivalent rank in the armed forces" u/s 7(l)(a) "to fire upon or otherwise use force even to the causing of death, against any person who is acting in contravention of any law or order.." 3. Appropriate Government (the one which issues the notification u/s 3(1)) to establish special courts and also appoint Public Prosecutors to give speedy justice under Chapter IV and give enhanced punishments as provided u/s 6. 4. Special Court empowered to order compensation to the victim u/s 27. 5. Establishment of a "Communal Violence Relief and Rehabilitation Council" u/s 31 consisting of (1) Chief Secretary of the State (2) DGP (3) District Collector (4) DSP of affected area (50 two social workers to be nominated by CG and (6) four persons to represent minority community by CG. 6. CVRRC to be empowered u/s 32 to advise the STATE government in matters relating to relief and rehab etc. 3. Will this bill, if enacted, become an efficacious law to prevent communal violence? This question is best answered by putting into operation the proposed law in context of the post Godhra violence that destroyed the life and property of thousands of Muslims. It may be recalled that as on 28th February 2002, the day the carnage started, BJP ruled the State of Gujarat and NDA ruled at the Center and BJP was the major partner of NDA. Thus both the Government had BJP as the major player there was no bar whatsoever "to take all measures which may be necessary to deal with the situation"! Yet the worst carnage took place, killing thousands of innocent men, women and children and destroying hundred of crores of their property. Till date, the victims have not been able to return back to their villages and most of the riot cases have resulted in the acquittal of the accused for the want of witnesses or witnesses turning hostile. As the powers to prevent, prosecute and rehabilitate is conferred on either the Central Government and the State Government in the present Bill, all such powers existed under either Cr. P.C. or IPC or other existing law as on 28l February, 2002. Yet the carnage took place. The only conclusion that one can arrive at is that the author of the present Bill has completely failed to understand the dynamics of the post Godhra violence and therefore the present Bill does not even attempt to address itself to the real issues that need to be dealt with. 4. The basic flaw of the present Bill which is proposed as a reaction to the Gujarat carnage, does not take into account the dynamics of the violence. It must be clearly understood that the post Godhra violence was not a communal conflict but a systematic violence unleashed by an organized political force against the members of the minority community with the active connivance, help and sanction of the entire state machinery. Since the political forces which perpetrated the valence was the ruling political party itself and further since the Government of the State as well as Center aided and abetted the entire violence, it would be naive to suggest that the same Government can and will prevent or suppress the violence which it has itself abetted. The proposed Bill therefore has no answer to the actual ground realities. 5. It may be recalled that while giving evidence before the Nanavati Commission, it has been stated by the Police officers in their cross examination that in the cases of Naroda Patia , and Best Bakery, they did not even go near the place of carnage though over a hundred persons were being brutally killed over a period of six to eight hors! In the case of Gulberg society, Inspector Erda has admitted in his cross examination that though he was present at the place where Shri Ehsan Jafri and 60 others were being slaughtered, he did not fire a single round to prevent the carnage. The State machinery deliberately refused to take any preventive action to stop the carnage. Why do we expect the same Government and their officials will "take all measures which may be necessary to deal with the situation" as piously drafted in the Bill?? 6. In a recent letter to the Nanavati Commission, the ex- President Shri K.R.Narayanan has unequivocally stated that the Prime Minister Shri Atal Behari Bajpai did not carry out his instruction to effectively deploy the army in Gujarat nor did he allow the army to shoot at sight to prevent the violence. Why do we expect the Central Government to deploy army in the manner suggested if the same combination are in power both in the State and the Center?? It may be recalled that the total deaths in police firing are (1) 80 hinds (2) 103 Muslims. Do we want to give special powers to kill more minorities to carry out the carnage? 1. The DSP Shri Rahul Sharma of Bhavnagar (Gjarat) had single handedly withot any help from the DGP had pt down the entire violent mob in Bhavnagar since he had the will to do so. His men had effectively fired and killed 5 hinds and one Muslim casing the then Home Minister Shri Zadapiya to comment that the ratio of death was not good! Let's therefore learn from that experience. If we need a law, we must remove the control from the hands of the erring Government and its ruling political establishment and regulate policing through statutory bodies, which should be independent of the Government in power. Then only we can have some semblance of prevention of State sponsored violence! The above critiques is by Dr. mukul Sinha who is a high court lawyer with strong human rights bend of mind and committed to the marginalised and excluded communities. He has been present during the depositions at Nanavati commission in Gujarat dealing with Gujarat Carnage Cases. Dr. Jimmy Dabhi Executive Director HUMAN RIGHTS & LAW UNIT DOCUMENTATION INDIAN SOCIAL INSTITUTE Centre for Reseach, Training and Action for Socio-Economic Development and Human Rights Lodhi Road, New Delhi - 110003 (INDIA) Email: hru@..., Phone:24622379/ 24625015 Web Site : http://www.isidelhi.com Draft Communal bill: Deadly Cocktail of TADA, POTA and Armed Forces Act. The UPA government is doing it again, killing the democratic fabric of India. The TADA-loving Congress had foxed the minorities and secular activists by magically-repealing POTA by changing its name. It had fooled the citizens of North East States by promising to review the Armed Forces Special Powers. And now, with pressure from secular activists to constitutionally pre-empt a Gujarat-type situation, it has snatched the golden opportunity to fulfil its hunger to devour human rights. A new cocktail of TADA, POTA and Armed Forces Special Powers Act into a law all over the country. ???Lets do a Kashmir & Manipur of the entire country!??? And the bosses of this government in ADB/WB/WTO are having the last laugh: ???what the communal saffron fascists couldn??™t achieve, the UPA will ??“ they will gag all opposition to our grand economic designs of converting the entire country into a shopping mall.??? The draft bill allegedly ???to suppress communal violence??? does everything to suppress democracy, leaving communal forces and their activities intact. It loves to unleash the armed forces of the Union ???to suppress the commission of such offences and to restore communal harmony and public peace and tranquillity.??? It has nothing to do with the fascist poisons being spread by the Sangh Parivar through its ekal schools or media or its un-civil organs in civil society. It has nothing to do with flushing out Sangh Parivar infiltrations in the army, police, home guards, bureaucracy, education, media, etc. Actually it is not supposed to suppress anything communal, it is only deployed to suppress everything that human society yearns for ??¦??¦. freedom. The Central or State government can declare any area as a communally disturbed area. It will the unleash ???any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces??? take over ???the maintenance of public order??? and go to any extent: ???fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the communally disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosives substance.??? This officer can just dump the Constitution of India and go ahead to: ???- arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest; - enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary. - stop, search and seize any vehicle or vessel reasonably suspected to be carrying any person who is believed to have or has committed a non-cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a non-cognizable offence, or any person who is carrying any arms, ammunition or explosive substance believed to be unlawfully held by him, and may, for that purpose, use such force as may be necessary to effect such stoppage, search or seizure, as the case may be. ??? Any cop or army persons in his team have ???the power to break open the lock of any door, almirah, safe, box, cupboard, drawer, package or other thing if the key thereof is withheld.??? And ???any person arrested and taken into custody under this Act and every property, arms, ammunition or explosive substance or any vehicle or vessel seized under this Act, shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest, or occasioning the seizure of such property, arms, ammunition or explosive substance or any vehicle or vessel as the case may be.??? Whatever he does, the so-called citizens of India have to praise him, as ???no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act. ??? To take advantage of all charitable out-pouring, the act also wants to rope all humanitarian NGOs into the States??™ network by creating a Communal Disturbance Relief and Rehabilitation Council in the state notified. The Central or State government is empowered to create the council. As per the reservation of the seats in the council, it would serve no purpose ???to suppress communal violence.??? For example, if the Council is now created in Gujarat, it would be named as the Gujarat Disturbance Relief and Rehabilitation Council by this Act, and would be composed of: 1. Chief Secretary??¦ex officio Chairperson (Modi??™s man) 2. Director General of Police ??¦ex officio Member (Modi??™s man) 3. District Collector or District Commissioner of the district affected by communal violence ??¦ex officio Member (Modi??™s man) 4. Superintendent of Police of the district affected by communal violence??¦ex officio Member (Modi??™s man) 5. Two persons to be nominated by the Central Government to represent social workers ??¦??¦??¦Members (professional social workers or RSS workers) 6. Four persons to be nominated by the Central Government to represent minority community and victims of communal violence??¦.Members (dumb and useless Congress supporters from the minority community) Thank you UPA! And this committee also, like the armymen and cops will not be accountable to the citizens as ???no suit, prosecution or other legal proceedings shall lie against the State or the Central Government or any officer or authority of such Government or any other person or any member of the State Council or any officer of the State Council for anything which is in good faith done or intended to be done under the Act or the rules made thereunder.??? And the Act goes on to create Special Courts: haven??™t we had enough of them to try out atrocities on women/dalit, now communal? The Congress seems to be taking over the task launched by the NDA to revamp the constitution. The law, if at all needed, should concentrate on sources of communal hatred and fascist mobilisation, instead of its manifestation. Thank you PM for recently inaugurating the Chhattisgarh irrigation project, without telling anyone that $46 million was a high-interest ADB loan (LOAN: IND 37056-01) to be paid by the citizens. And we are nowhere anywhere near the ???secular concerns??™ of your government. Does anybody know whose concerns are being served at New Delhi? Wilfred D. (General Secretary, INSAF)<willy@...> THE COMMUNAL VIOLENCE (SUPPRESSION) BILL, 2005 A BILL to provide for state government and the central government to take more effective measures to suppress communal violence perpetrated on such a scale which threatens the secular fabric, unity and integrity of the Nation and for matters connected therewith or incidental thereto. WHEREAS secularism is a basic feature of the Constitution; AND WHEREAS the Constitution imposes a duty on the Union to protect State against external aggression and internal disturbance; AND WHEREAS communal violence tends to create internal disturbance, destroy the secular fabric and threaten the unity and integrity of the Nation; AND WHEREAS it is necessary to generate faith and confidence in minority communities; NOW, THEREFORE, it is expedient to provide for suppression of communal violence effectively; Be it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows: CHAPTER I PRELIMINARY 1. (1) This Act may be called the Communal Violence (Suppression) Act, 2005. 2. (2) The extents to the whole of India except the State of Jammu and Kashmir 3. (3) It shall come into force on such date as the Central Government may, by notification appoint; and different date may be appointed on different provisions of this Act and any reference in any such provision regarding commencement of this Act shall be construed in relation to that State as a reference in the coming into force of the said provision in that State. 2. (1) In this Act, unless the context otherwise requires, - (a) ???appropriate Government??? means the State Government or the Central Government which has issued a notification under section 4; (b) ???Code??? means the Criminal Procedure Code, 1973; (c) ???communally disturbed area??? means an area disturbed as such under section 3 or section 4, as the case may be; (d) ???notification??? means a notification published in one Official Gazette; (e) period of disturbance, in relation to a communally disturbed area, means the period during which is to be a disturbed area for the purposes of section 3 or section 4; (f) ???prescribed means prescribed by rules made under as this Act by the appropriate Government; (g) ???scheduled offence??? means an offence under the Indian Penal Code, 1860, specified in the Schedule being an offence committed while a declaration under section 3 or under section 4 is in force; (h) ???Special Court??? means a Special Court constituted under section 9; CHAPTER II DECLARATION OF CERTAIN AREAS AS COMMUNITY DISTURBED AREAS 3. (1) Whenever the State Government or the Central Government is of the opinion that one or more scheduled offences are being committed in any area by any person or group of persons - (a) in which such manner and on such a scale which involves the use of criminal force or violence against any religious, racial, language or regional group, caste or community resulting in death or destruction of property; and (b) such use of criminal force or violence is committed with a view to create disharmony or feelings of enmity hatred or ill will between difference religious, racial, language or regional group, caste or community; and (c) unless immediate steps are taken there will be danger to the secular fabric, integrity or unity of India, it may by notification, declare such area as communally disturbed areas and take all immediate measures to suppress such violence or the use of criminal force. (2) A notification under sub-section (1) in respect of any area shall specify the period during which the area shall, for the purpose of this section, be a communally disturbed area: Provided that the period specified in such notification shall not, in the fast instance, exceed thirty days, but the State Government or the Central Government as the case may be, may amend such notification to extend such period from time to time by any period not exceeding thirty days of any one time, if in the opinion of that Government public peace and tranquillity continues to be disturbed in such areas (3) Where any area has been notified as communally disturbed area under sub-section (1), then, it shall be lawful for the State Government or the Central Government, as the case may be, to take all measures, which may be necessary to deal with the situation. 4. (1) A notification under sub-section (1) of section 3 may be issued by the Central Government notwithstanding that the State Government had already issued a notification under sub-section (1) of section 3 declaring such area as a communally disturbed area. (2) Where a notification is issued by the Central Government under sub-section (1), after a notification by the State Government under sub-section (1) of section 3, the notification of the Central Government shall prevail and the notification of the State Government shall be of no effect. Chapter III SPECIAL PROVISIONS FOR COMMUNALLY DISTURBED AREAS 5. Without prejudice to the provisions of sub-section (3) of section 3, the Central Government may ??“ (a) deploy the armed forces of the Union in such area to suppress the commission of such offences and to restore communal harmony and public peace and tranquillity; (b) nominate one or more officers of that Government not below the rank of an Additional Secretary to the Government of India, to coordinate the steps to be taken for dealing with the situation prevailing in the communally disturbed areas; (c) constitute such area into a single judicial zone or into as many judicial zones as it may deem fit. 6. Notwithstanding anything contained in the Indian Penal Code, 1860, whoever commits any scheduled offence, in any communally disturbed area, punishable with imprisonment or with fine or with both, except an offence punishable with death or imprisonment for life, shall be punished with imprisonment for a term which may extend to twice the longest term of imprisonment and twice the highest fine provided for that offence. 7. (1) Where any area has been declared as a communally disturbed area, then any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in such area, - (a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the communally disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosives substance; (b) if he is of the opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilized as a hide-out by armed gangs or absconders wanted for any offence; (c) arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest; (d) enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary. (e) stop, search and seize any vehicle or vessel reasonably suspected to be carrying any person who is believed to have or has committed a non-cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a non-cognizable offence, or any person who is carrying any arms, ammunition or explosive substance believed to be unlawfully held by him, and may, for that purpose, use such force as may be necessary to effect such stoppage, search or seizure, as the case may be. 8. Every person making a search under this Act shall have the power to break open the lock of any door, almirah, safe, box, cupboard, drawer, package or other thing if the key thereof is withheld. 9. Any person arrested and taken into custody under this Act and every property, arms, ammunition or explosive substance or any vehicle or vessel seized under this Act, shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest, or occasioning the seizure of such property, arms, ammunition or explosive substance or any vehicle or vessel as the case may be. 10. No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act. CHAPTER IV SPECIAL COURTS 11. (1) For the purposes of providing for speedy trial of scheduled offences committed in a judicial zone, the appropriate Government may, establish, by notification in the official Gazette, a Special Court in relation to such judicial zone. (a) within such judicial zone; or (b) if the appropriate Government having regard to the exigencies of such situation prevailing in such judicial zone considers it expedient so to do, at any place outside such judicial zone but within the State in which such judicial zone is situated. (2) Notwithstanding anything contained in sub section (1), if, having regard to the exigencies of the situation prevailing in a State, the appropriate Government is of the opinion that it is expedient to establish in relation to a judicial zone, or in relation to two or more judicial zones, in the State and addition Special Courts outside the State, for the trial of such scheduled offences committed in the judicial zone or judicial zones, the trial whereof within the State - (a) is not likely to be fair or impartial or completed with utmost dispatch; or (b) is not likely to be feasible without occasioning a breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor and the Judge or any of them; or (c) is not otherwise in the interest of justice, the appropriate Government may establish in relation to such judicial zone or judicial zones an Additional Special Court outside the State and thereupon the appropriate Government may, after taking into account the information furnished by the State Government and making such inquiry, if any, as it may deem fit, establish, by notification in the Official Gazette, such Additional Special Courts at such place outside the State as may be specified in the notification. 12. (1) A Special Court shall be presided over by a Judge to be appointed by the appropriate Government with the concurrence of the Chief Justice of the High Court. (2) The appropriate Government may also appoint, with the concurrence of the Chief Justice of the High Court, Additional Judges to exercise jurisdiction in a Special Court. (3) A person shall not to 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. (4) 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 an 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. (5) 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 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. 13. A Special Court may, if it considers it expedient or desirable so to do sit for any or its proceedings at any place other than the ordinary place of its sitting, in the State in which it was established. Provided that if the Public Prosecutor certifies to the Special Court that it is in his opinion necessary for the protection of the accused or any witness or otherwise expedient in the interest of justice that the whole or any part of the trial should be held at some 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 to be recorded in writing, the Special Court thinks fit to make any other order. 14. (1) Notwithstanding anything contained in the Code or in any other law, a scheduled offence committed in a judicial zone in a State at any time during the period during which such judicial zone is, or is part of, a communally area shall be triable, whether during or after the expiry of such period, only by the Special Court established for such judicial zone in the State. Provided that where the period specified under sub-section (2) of section 3 as the period during which an area declared by notification under sub-section (1) of that section to be a communally disturbed area commences from a date earlier than the date on which such notification is issued, then ??“ (a) nothing in the foregoing provisions of this sub-section shall apply to a scheduled offence committed in such area in which the whole of the evidence for the prosecution has been taken before the date of issue of such notification; and (b) all other cases involving scheduled offences committed in such area and pending before any court immediately before the date of issue of such notification shall stand transferred to the Special Court having jurisdiction under this section and the Special Court to which such proceedings stand transferred shall proceed with such cases from the stage at which they were pending at that time. (2) Notwithstanding anything contained in sub-section (1), if in respect of a case involving a scheduled offence committed in any judicial zone in a State, the Central Government, having regard to the provisions of sub-section (2) of section 4 and the facts and circumstances of the case and all other relevant factors, is of the opinion that it is expedient that such offence should be tried by the Additional Special court established in relation to such judicial zone outside the State, the Central Government may make a declaration to that effect: Provided that no such declaration shall be made unless the State Government has forwarded to the Central Government a report in writing containing a request for making of such declaration. Explanation ??“ Where an Additional Special Court is established in relation to two or more judicial zones, such Additional Special Court shall be deemed, for the purposes of this sub-section, to have been established in relation to each of such judicial zones. (3) A declaration made under sub-section (2) shall not be called in question in any court. (4) Where any declaration is made in respect of any offence committed in a judicial zone in a State, any prosecution in respect of such offence shall be instituted only in the Additional Special Court established in relation to such judicial zone outside the State, and if any prosecution in respect of such offence is pending immediately before such declaration in any other court the same shall stand transferred to such Additional Special Court and such additional Special Court shall proceed with such case from the stage at which it was pending at that time. 15 (1) When trying any scheduled offence, a Special Court may also try 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 with the scheduled offence. (2) If in the course of any trial under this Act, it is found that the accused person has committed any offence, the Special Court may, whether such offence is or is not a scheduled offence, convict such person of such offence and pass any sentence authorised by law for the punishment thereof. . 16 (1) For every Special Court, the appropriate Government shall appoint a person to be the Public Prosecutor and may appoint one or more persons to be the Additional Public Prosecutors: Provided that the appropriate Government may also appoint for any case or class of cases a Special Public Prosecutor. (2) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor under this section only if 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. 17. (1) A Special Court may take cognizance of any scheduled offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence or upon a police report of such facts. (2) Where a scheduled offence is punishable with imprisonment for a term not exceeding three years or with fine or with both, a 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 section 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 two years. (3) A Special Court may with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relative to the offence and to every other person concerned whether as principal or abettor in the commission thereof, and pardon so tendered shall, for the purposes of section 308 of the Code, be deemed to have been tendered under section 307 thereof. (4) 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 such procedure prescribed in the Code for the trial before a Court of Session. (5) Subject to the other provisions of this Act, every case before an Additional Special Court shall be dealt with as if such case had been transferred under section 406 of the Code to such Additional Special Court. 18. Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case be transferred from one Special Court to another Special court. 19. (1) A Special Court may, or an application made by a witness in any proceedings before it or by the Public Prosecutor in relation to such witness or on its own motion, take such measures as it deems fit for keeping the identity and addresses of the witness secret. (2) In particular and without prejudice to the generality of the provisions of sub-section (1), the measures which a Special Court may take under that sub-section may include- (a) the holding of the proceedings at a protected place; (b) the avoiding of the mention of the names and addresses of the witnesses in its orders or judgements or in any records of the case accessible to public; (c) the issuing of any directions for securing that the identity and addresses of the witnesses are not disclosed. (3) Any person who contravenes any direction issued under sub-section (2) shall be punishable with imprisonment for a term which may extend to one year and with fine which may extend to one thousand rupees. 20.Where after taking cognizance of any offence, a Special Court is of opinion that the offence is not a scheduled offence, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of such offence to any court having jurisdiction under the Court and the court having jurisdiction under the Court and the court to which the case is transferred may proceed with the trial of the offence as if it has taken cognizance of the offence. 21. (1) Where a Special Court is satisfied, upon a complaint or a police report that a person is likely to commit a scheduled offence in any communally disturbed area, it may, by order in writing, direct such person to remove himself beyond the limit of such area, by such route and within such time as may be specified in the order, and not to return to that area from which he was directed to remove himself for such period, not exceeding six months, as may be specified in order. (2) The Special Court shall, along with the order under sub-section (1) communicate to the person directed that, under sub-section the grounds on which such order has been made. (3) The Special Court may revoke or modify the order made under sub-section (1), for the reasons to be recorded in writing, on the representation made by the person against whom such order has been made or by any other person on his behalf within thirty days from the date of the order. 22. (1) If a person to whom a direction has been issued under section 21 to remove himself from any area - (a) fails to remove himself as directed, or (b) having so remove himself enters such area within the period specified in the order, otherwise than with the permission in writing of the Special Court under sub-section (2), the Special Court may cause himself to be arrested and removed in police custody to such place outside such area as the Special Court may specify. (2) The Special Court may, by order in writing, permit any person in respect of whom an order under section 19 has been made, to return to be area from which he was directed to remove himself for such temporary period and subject to such conditions as may be specified in such order and may require him to execute a bond with or without surely for the due observation of the conditions imposed. (3) The Special Court may at any time revoke any such permission. (4) Any person who, with such permission, returns to the area from which he was directed to remove himself shall observe the conditions impose, and at the expiry of the temporary period for which he was permitted to return, or on the revocation of such permission before the expiry of such temporary period, shall remove himself outside such area and shall not return thereto within the unimpaired portion specified under section 19 without a fresh permission. (5) If a person fails to observe any of the conditions imposed or to remove himself accordingly or having so removed himself enters or returns to such area without fresh permission the Special Court may cause him to be arrested and removed in the police custody to such place outside such area as the Special Court may specify. 23 (1) Every person against whom an order has been made under section 21 shall, if so required by the Special Court, allow his measurement and photographs to be taken by a police officer. (2) If any person referred to in sub-section (1), when required to allow his measurements or photographs to be taken, resists or refuses to allow the taking of such measurements or photographs, it shall be lawful to use all necessary means to secure the taking thereof. (3) Resistance to or refusal to allow the taking of measurements and photographs (including negatives) taken under sub-section (2) shall be deemed to be an offence under section 186 0f the Indian Penal Code. (4) Where an order under section 19 is revoked, all measurements and photographs (including negatives) taken under sub-section 2 shall be destroyed or made over to the person against whom such order is made. 24. (1) Notwithstanding anything contained in the Code or any other law, every scheduled offence shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code and ???cognizable case??? as defined in that clause shall be construed accordingly. (2) Section 167 of the Code shall apply in relation to a case involving a scheduled offence subject to the modifications that ??“ (a) the reference in sub-section (1) thereof to ???Judicial Magistrate??? shall be construed as a reference to ???Judicial Magistrate or Executive Magistrate???. (b) the references in sub-section thereof to ???fifteen days??? , ???ninety days??? and ???sixty days???, wherever they occur shall be construed as references to ???thirty days???, ??? one year??? and ???one year???. respectively; and (c) sub-section (2A) shall be deemed to have been omitted. (3) Section 366 and 377 and section 392 of the Code, shall apply in relation to a case involving a scheduled offence, subject to the modifications that the references to ???Court of Session??? and ???High Court???, wherever occurring therein shall be construed as references to ???Special Court??? and ???Supreme Court??? respectively. (4) Nothing in section 483 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed a scheduled offence in communally disturbed area. (5) Notwithstanding anything 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) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (6) The limitations on granting of bail specified in sub-section (5) or in addition to the limitations under the Code or any other law for the time being in force on granting of bail. 25. Where the area are comprising a judicial zone has ceased to be a communally disturbed area and no cases are pending before a Special Court or an Additional Special Court established in relation to such judicial zone, the Central Government may, by notification in the Official Gazette, abolish such Special Court or Additional Special Court. 26 (1) Whenever an area has been declared under sub-section (1) of section 3 or sub-section (1) of section 4 as a communally disturbed area, the State Government shall without prejudice to clause (s) of section 2 of the Code, declare any post or place within such area to be a police station and the provisions of Chapter XII of the Code shall so far as may be, apply in relation to information to the police and their powers to investigate. (2) The State Government shall provide as many women police officers as possible to record any information relating to the commission of a scheduled offence committed against women or children in the communally disturbed area and to investigate any such offence. 27. Whenever a Special Court convicts a person for an offence punishable under Chapter XVI, Chapter XVII or Chapter XXI of the Code, it may, by its sentence, order that the offender shall make such monetary compensation as may be specified therein to the person mentioned in sub-section (5) for any loss or damage arising from such offence. (2) The amount of compensation directed to be made under sub-section (1) shall not exceed the amount of fine which the court is empowered to impose. (3) An order under sub-section (1) may be made in addition to any other punishment to which the person convicted has been sentenced or where the offences is punishable with fine only, or with imprisonment for a period not exceeding three months, such order may be in lieu of any other punishment. (4) Before passing any order under sub-section (1) the court shall take into consideration the nature of the offence, the motive therefore, the economic, status of the offender and the person in whose favour such order is made, and all other relevant factors. (5) The compensation under sub-section (1) may be directed to be paid - (i) to any person who has incurred expenses in prosecution, for defraying expenses properly incurred. (ii) to any person form any loss, damage or injury caused by the offence, when the compensation therefore is in opinion of the court, recoverable by such person in civil court; (iii) in the case of a conviction for any offence for having caused the death of another person or of having abetted the commission of such an offence to the person who are, under the Fatal Accidents Act, 1855, entitled to recover damages from the person sentenced, for the loss resulting to them to such death; (iv) in the case of a conviction for any offence which included theft, criminal misappropriation, criminal breach of trust, or cheating or of having dishonestly received or retained, or of having voluntarily assisted in disposing of stolen property knowing or having reason to believe the same to be stolen to any bona fide purchaser of such property for the loss of the same, if such property is restored to the possession of the person entitled thereto. (6) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the court shall take into account any sum paid or recovered as compensation under this section. (7) For the purposes of this Act, an award of compensation under sub-section (1) shall be deemed to be a sentence of fine. 28. In a prosecution for a scheduled offence, if it is proved that an accused has rendered any financial assistance to a person accused of, or reasonably suspected of, committing such an offence, the Special Court shall presume, unless the contrary if proved, that such person has abetted the offence. 29. In a prosecution of a scheduled offence, if it is proved that ??“ (a) any arms or explosive or any other material or substance were recovered from the possession of the accused and there is reason to believe that such arms or explosive or other material or substance were used in the commission of such offence; or (b) the finger-prints of the accused were found at the site of such 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. CHAPTER V RELIEF AND REHABILITATION 30. In this Chapter, unless the context otherwise requires ??“ (a) ???Council??? means the Communal Violence Relief and Rehabilitation Council constituted by the State Government under section 31; (b) ???Fund??? means the fund of the Council constituted under section 33; (c) ???Member??? means a member of the Council; (d) ???relief and rehabilitation??? includes providing counselling, medical care, food, shelter, clothing, education and vocational training to a victim of communal violence. 31. (1) Whenever any area is notified as a communally disturbed area under sub-section (1) of section 3 or under sub-section (1) of section 4 by the State or the Central Government, as the case may be, a Council to be known as (Name of the State) Communal Disturbance Relief and Rehabilitation Council shall forthwith be constituted by the State Government, which shall consist of the following Members, namely: - (a) Chief Secretary??¦ex officio Chairperson; (b) Director General of Police ??¦ex officio Member; (c) District Collector or District Commissioner of the district affected by communal violence ??¦ex officio Member; (d) Superintendent of Police of the district affected by communal violence??¦ex officio Member; (e) two persons to be nominated by the Central Government to represent social workers ??¦??¦??¦Members; (f) four persons to be nominated by the Central Government to represent minority community and victims of communal violence ??¦??¦??¦..Members; (2) The Council shall have the responsibility of planning, relief and rehabilitation measures and co-ordination, monitoring the implementation of such measures. 32 (1) Without prejudice to the generality of the provision of sub-section (1), the Council shall ??“ (a) advise the State Government in matters relating to relief and rehabilitation of victims of communal violence; (b) establish a system of single window to complete all administrative formalities in relation to providing quick relief and rehabilitation to the victims of communal violence; (c) co-ordinate, control and monitor the functioning of the relief and rehabilitation; (d) make available ration cards or other identity cards; (e) certify loss or damage of educational or other certificates of ownership or other documents in respect of the victims of communal violence; (f) facilitate the students of the areas affected by communal violence to appear for any examination and to provide security for the purpose; (g) establish centers for rehabilitating the children of victims of communal violence; (h) establish a single window clearance scheme for speedy disposal of insurance claims and for providing soft loans by financial institutions or measures relating to re-scheduling of loans and interest payments in cases of affected victims of communal violence in consultation with the financial institutions; (i) undertake awareness generation programme to prevent occurrence of communal violence; (j) draw up guidelines for the assessment of compensation in respect of the losses suffered by every individual in communal violence so as to assess the ??“ (i) loss of, or damage to, homes and belongings; (ii) loss of life and injuries sustained; (iii) destruction of, or damage to, business and the loss of means of livelihood; (iv) impact of sexual assaults or abuse on women; (k) recommend welfare measures to be adopted and implemented by the appropriate Government with a view to ameliorating the conditions of victims of communal violence; (l) facilitate speedy prosecution of cases arising of communal violence; (m) restore and repair the places of worship damaged or destroyed during the communal violence, in consultation and with consensus of the members of the affected community; (n) formulate a comprehensive and affirmative scheme for welfare of victims of communal violence and devise a programme for implementing such schemes with the approval of the appropriate Government and implement the scheme; (o) activate the functioning of the district communal harmony committee; (p) maintain comprehensive data bank relating to the social economic development of victims of communal violence; (q) to report the appropriate Government the inadequacies or shortcomings in any law for the time being in force and also on the remedial measures; and (r) perform such other functions as may be incidental or ancillary thereto as may be assigned by the appropriate Government from time to time. (4) The procedure of the Council shall be such as may be prescribed. 33 (1) Where any area is notified under section 3 or section 4 as a communally disturbed area and a Council has been constituted, then, the State Government may establish a Fund to be called the (Name of the State) (Communal Disturbance Relief and Rehabilitation) Fund and these shall be credited thereto ??“ (a) all moneys received from such Government; (b) all moneys received by the Council by way of grants, gifts or donations, from such Government or a local authority or an individual or organisation, whether incorporated or not, for all or any of the purposes of this Act; (c) amounts received as aid from the international organisations or organisations in India, where necessary, with the prior approval of the Central Government, for the rehabilitation or welfare of victims of communal violence; (d) any amount borrowed by the Council, and (e) such other sums as may be received by the Council in any other manner or from any other source. (2) All moneys belonging to the Fund shall be deposited in such bank or invested in such manner as the Council may, subject to the approval of the appropriate Government, decide. (3) The Fund shall be applied for the following purposes, namely: - (a) for the purpose of grants for relief and rehabilitation; (b) for the construction of, or giving grants to non-Governmental organisations to build homes for victims of communal violence; (c) for establishing and running educational institutions for imparting education to the children of victims of communal violence; (d) for meeting the expenses for exercising or performing other powers and functions of the Council under section 32; and (e) for such other purposes as may be prescribed. 34. The Council shall have the power to receive such contributions as may be fixed by the State or the Central Government from time to time from the public. 35. No suit, prosecution or other legal proceedings shall lie against the State or the Central Government or any officer or authority of such Government or any other person or any member of the State Council or any officer of the State Council for anything which is in good faith done or intended to be done under the Act or the rules made thereunder. 36. Save as otherwise provided, the provisions of this Act shall be in addition to and not in derogation of any other laws for the time being in force except to the extent the provisions of other laws are inconsistent with the provisions of this Act. 37. (1) The Central Government may, by notification in the Official Gazette make rules for carrying out the purposes of this Act. (2) Every rule made 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 agree 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; show however, that any such modification annulment shall be without prejudice to the validity of anything previously done under that rule. 38 (1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act. (2) Every rule made under this act shall be laid, as soon as may be after it is made, before the Legislative Assembly while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and if before the expiry of the session in which it is so laid or the session immediately following, the Legislative assembly makes any modification in the rules or decides that the rule should not be made, the rule shall thereafter have effect only in such modified from 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. 39 (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order do anything not inconsistent with such provisions, which appear to it necessary for the purpose of removing the difficulty: Provided that no order shall be made under this section after the expiry of two years from the commencement of this Act. (2) Every order made under this Act shall, as soon as may be after it is made, be laid before each House of Parliament. __________________________________ |
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