THE RESPECTIVE AREAS OF OPERATION OF –
1. THE UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967 (“UAP ACT”)
2. THE PREVENTION OF MONEY-LAUNDERING ACT, 2002 (“PMLA ACT”)
3. THE NATIONAL INVESTIGATION AGENCY ACT, 2008 (“NIA ACT”)
Sl. No: | I N N E R T I T L E S | PARA NO: |
T H E U A P A C T, 1 9 6 7 “Unlawful activity” Notes by the author Terrorist activities Terrorist act Section 15 reproduced Contents of the four Schedules | 1 1 1 1 1 1 1 | |
OFFENCES AND PENALITIES The Sections under Chapters III, IV, V and VI | 2 2 | |
POTA repealed | 3 | |
UAP ACT IS A “SCHEDULED OFFENCE” UNDER THE NIA ACT, 2008 | 4 | |
OFFICERS EMPOWERED TO INVESTIGATE OFFENCES UNDER THE UAP ACT Section 43 reproduced | 5 5 | |
COURTS HAVING JURISDICTION TO TRY OFFENCES UNDER THE UAP ACT | 6 | |
CONDITIONS PRECEDENT FOR COGNIZANCE OF OFFENCES Section 45 reproduced | 7 7 | |
PROCEDURE AND POWERS OF SPECIAL COURTS Section 16 of UAP Act reproduced | 8 8 | |
T H E P M L A A C T, 2 0 0 2 | 9 | |
OFFENCES UNDER THE PMLA ACT Section 3 reproduced Proceeds of crime – Section 2 (1) (u) of PMLA Act reproduced “Scheduled offence” – S.2 (1) (y) of PMLA Act reproduced The Schedule to PMLA Act reproduced | 10 10 10 10 10 | |
PUNISHMENT FOR “MONEY LAUNDERING” Section 4 reproduced | 11 11 | |
OFFICERS EMPOWERED TO INVESTIGATE | 12 | |
NIA CAN ONLY ASSIST THE AUTHORITIES IF SO ORDERED | 13 | |
SPECIAL COURTS | 14 | |
COGNIZANCE OF OFFENCES Section 44 of PMLA Act reproduced | 15 15 | |
POLICE CANNOT REGISTER FIR OR INVESTIGATE THE OFFENCE UNDER THE PMLA ACT | 16 | |
T H E N I A A C T, 2 0 0 8 | 17 | |
OFFENCES UNDER THE NIA ACT Statues enumerated in the Schedule to the NIA Act | 18 18 | |
OFFICERS EMPOWERED TO INVESTIGATE OFFENCES UNDER THE NIA ACT | 19 | |
HOW THE NIA TAKES OVER THE INVESTIGATION | 20 | |
SPECIAL COURTS Sections 13 (1), 14 (1) and 14 (2) of NIA Act referred to | 21 21 | |
COGNIZANCE OF OFFENCES Sections 16 (5) and (19) of NIA Act referred to | 22 22 | |
A QUESTION HAVING GREAT SIGNIFICANCE |
THE RESPECTIVE AREAS OF OPERATION OF –
1. THE UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967 (“UAP ACT”)
2. THE PREVENTION OF MONEY-LAUNDERING ACT, 2002 (“PMLA ACT”)
3. THE NATIONAL INVESTIGATION AGENCY ACT, 2008 (“NIA ACT”)
THE UAPA ACT, 1967
The UAPA Act, which came into force on 30-12-1967, extends to the whole of India. It deals with “unlawful activities” and “terrorist activities” which threaten India's integrity and sovereignty. Section 2 (1) (o) of the Act defines “unlawful activity” as follows –
“unlawful activity”, in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise),—
(i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or
(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or
(iii) which causes or is intended to cause disaffection against India”.
NOTES BY THE AUTHOR: “An act intended to disrupt the sovereignty and territorial integrity of India refers to acts aimed at –
- Undermining India's independence. Threatening or challenging India's autonomy, self-governance or authority.
- Compromising territorial integrity. Attempting to secede or detach parts of India's territory or using force to alter it borders.
Such acts can include –
- Armed rebellions
- Insurgencies
- Terrorist activities
- Separatists movements
- Foreign-supported attempts to destabilize India.
These actions threaten India's utility, stability and National security.”
Chapter IV of the UAP Act was substituted in its present form with effect from 21-09-2004 and it deals with “terrorist activities” for committing “terrorist acts” as defined under Section 15 of the Act. Section 15 reads as follows –
“15: Terrorist act - (1) Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security , economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,--
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause--
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or
(iiia) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or
(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or 5[an international or inter-governmental organisation or any other person to do or abstain from doing any act; or
commits a terrorist act.
Explanation.-- For the purpose of this sub-section,--
(a) "public functionary" means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary;
(b) "high quality counterfeit Indian currency" means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates or compromises with the key security features as specified in the Third Schedule.
(2) The terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule.”
The UAP Act has 4 Schedules.
The First Schedule contains a list of terrorist organizations from which any such organizations can either be removed or added to under Sections 35 or 36.
The Fourth Schedule lists out names of “individual terrorists” from whom the names of any “individual terrorists” can be removed or added under Sections 35 or 36.
The Second Schedule lists out certain treaties and conventions the violation of which constitute the offence of “terrorist act” as indicated in Section 15 (2).
The Third Schedule shows the security features of high quality Indian currency for enabling the detection of counterfeit Indian currency within the meaning of Section 15 (1).
OFFENCES AND PENALITIES
- Sections 10 to 13 in Chapter III provides for the offences and the penalties for “unlawful activities”.
- Sections 16 to 23 of Chapter IV of UAP Act seeks to punish “terrorist activities” for committing any “terrorist act” as defined under Section 15 (1).
- Chapter V comprising of Sections 24 to 34 deals with forfeiture of proceeds of terrorism or any property intended to be used for terrorism.
- Chapter VI comprising of Sections 35 to 40 deals with terrorist organizations and individuals.
POTA repealed
3. After the substitution of Chapter XIV of UAP Act, The Prevention of Terrorism Act, 2002 (POTA) was repealed with effect from 22-12-2004.
UAP ACT IS A “SCHEDULED OFFENCE” UNDER THE NIA ACT, 2008
4. The UAP Act is one of the “Scheduled Offences” under the NIA Act, 2008 and, therefore, offences under the UAP Act can be investigated by the National Investigation Agency as per Section 6 of the NIA Act on a direction by the Central Government either under Section 6 (4) or under Section 6 (5) of the NIA Act.
OFFICERS EMPOWERED TO INVESTIGATE OFFENCES UNDER THE UAP ACT
5. Section 43 of the UAP Act reads as follows –
“Notwithstanding anything contained in the Code, no police officer,--
(a) in the case of the Delhi Special Police Establishment, constituted under sub-section (1) of section 2 of the Delhi Special Police Establishment Act, 1946, (25 of 1946), below the rank of a Deputy Superintendent of Police or a police officer of equivalent rank;
(b) in the metropolitan areas of Mumbai, Kolkata, Chennai and Ahmedabad and any other metropolitan area notified as such under sub-section (1) of section 8 of the Code, below the rank of an Assistant Commissioner of Police;
(ba) in the case of National Investigation Agency, below the rank of Inspector;
(c) in any case not relatable to clause (a) or clause (b) or clause (ba)], below the rank of a Deputy Superintendent of Police or a police officer of an equivalent rank,
shall investigate any offence punishable under Chapter IV or Chapter VI”.
(Clause (ba) empowering the NIA also to investigate UAP Act offences was inserted with effect from 14-08-2019).
COURTS HAVING JURISDICTION TO TRY OFFENCES UNDER THE UAP ACT
6. Courts trying offences under the UAP Act are criminal Courts having jurisdiction under the Cr.P.C, 1973 and includes a “Special Court” constituted by the Central Government under Section 11 of the NIA Act and a “Special Court” constituted by the State Government under Section 22 of the NIA Act as indicated by Section 2 (1) (d) of the UAP Act.
CONDITIONS PRECEDENT FOR COGNIZANCE OF OFFENCES
7. Section 45 deals with the conditions precedent for taking cognizance of offences. The said Section reads as follows –
“45: Cognizance of offences - (1) No court shall take cognizance of any offence--
(i) under Chapter III without the previous sanction of the Central Government or any officer authorised by the Central Government in this behalf;
(ii) under Chapters IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government, and if such offence is committed against the Government of a foreign country without the previous sanction of the Central Government.
(2) Sanction for prosecution under sub-section (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation within such time as may be prescribed to the Central Government or, as the case may be, the State Government.”
PROCEDURE AND POWERS OF SPECIAL COURTS
8. Since the Courts which are to try the offences under the UAP Act (which is a Scheduled offence under the NIA Act, 2008) are the “Special Courts” constituted under the NIA Act for the procedure and powers of such Special Courts are derived from Section 16 of the NIA Act. The said Section reads as follows –
“16: Procedure and powers of Special Courts - (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.
(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.”
THE PMLA ACT, 2002
9. The PMLA Act which came into force on 01-07-2005 also extends to the whole of India and aims to prevent the offence of “money-laundering” by acquiring, owning, possessing or transferring any “proceeds of crime” including entering into any transaction relating to “proceeds of crime” and concealing or aiding in the concealment of such “proceeds of crime” derived out of criminal activities relatable to the commission of the offence of “money-laundering” and the other offences (“Scheduled offences”) enumerated in the Schedule to the Act.
OFFENCES UNDER THE PMLA ACT
10. Section 3 defines the offence of “money laundering” as follows –
“3: Offence of money-laundering
Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering.
Explanation.—For the removal of doubts, it is hereby clarified that,—
(i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:—
(a) concealment; or
(b) possession; or
(c) acquisition; or
(d) use; or
(e) projecting as untainted property; or
(f) claiming as untainted property, in any manner whatsoever;
(ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.”
NOTES BY THE AUTHOR: Strangely, this definition of the offence does not include the offences enumerated in the Schedule to the Act. The “Scheduled Offence” are connected to the offence of “money laundering” only through the definition of the expression “proceeds of crime” in Section 2 (1) (u).
- “Proceeds of crime” is defined under Section 2 (1) (u) as follows –
“(u) “proceeds of crime” means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad;
Explanation.—For the removal of doubts, it is hereby clarified that "proceeds of crime" include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence.”
- Section 2 (1) (y) of the PMLA Act defines the expression “Scheduled Offence” as follows –
“(y) “scheduled offence” means—
(i) the offences specified under Part A of the Schedule; or
(ii) the offences specified under Part B of the Schedule if the total value involved in such offences is one crore rupees or more; or
(iii) the offences specified under Part C of the Schedule.”
- The Schedule to PMLA Act is given below –
THE SCHEDULE |
[See Section 2(y)] |
PART A |
PARAGRAPH 1 |
Offences under the Indian Penal Code |
(45 of 1860) |
Section | Description of offence |
120-B | Criminal conspiracy. |
121 | Waging or attempting to wage war or abetting waging of war, against the Government of India. |
121-A | Conspiracy to commit offences punishable by Section 121 against the State. |
255 | Counterfeiting Government stamp. |
257 | Making or selling instrument for counterfeiting Government stamp. |
258 | Sale of counterfeit Government stamp. |
259 | Having possession of counterfeit Government stamp. |
260 | Using as genuine a Government stamp known to be counterfeit. |
302 | Murder. |
304 | Punishment for culpable homicide not amounting to murder. |
307 | Attempt to murder. |
308 | Attempt to commit culpable homicide. |
327 | Voluntarily causing hurt to extort property, or to constrain to an illegal act. |
329 | Voluntarily causing grievous hurt to extort property, or to constrain to an illegal act. |
364-A | Kidnapping for ransom, etc. |
384 to 389 | Offences relating to extortion. |
392 to 402 | Offences relating to robbery and dacoity. |
411 | Dishonestly receiving stolen property. |
412 | Dishonestly receiving property stolen in the commission of a dacoity. |
413 | Habitually dealing in stolen property. |
414 | Assisting in concealment of stolen property. |
417 | Punishment for cheating. |
418 | Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect. |
419 | Punishment for cheating by personation. |
420 | Cheating and dishonestly inducing delivery of property. |
421 | Dishonest or fraudulent removal or concealment of property to prevent distribution among creditors. |
422 | Dishonestly or fraudulent preventing debt being available for creditors. |
423 | Dishonest or fraudulent execution of deed of transfer containing false statement of consideration. |
424 | Dishonest or fraudulent removal or concealment of property. |
467 | Forgery of valuable security, will, etc. |
471 | Using as genuine a forged document or electronic record. |
472 and | Making or possessing counterfeit seal, etc., with intent to |
473 | commit forgery. |
475 and 476 | Counterfeiting device or mark. |
481 | Using a false property mark. |
482 | Punishment for using a false property mark. |
483 | Counterfeiting a property mark used by another. |
484 | Counterfeiting a mark used by a public servant. |
485 | Making or possession of any instrument for counterfeiting a property mark. |
486 | Selling goods marked with a counterfeit property mark. |
487 | Making a false mark upon any receptacle containing goods. |
488 | Punishment for making use of any such false mark. |
489-A | Counterfeiting currency notes or bank notes. |
489-B | Using as genuine, forged or counterfeit currency notes or bank notes. |
PARAGRAPH 2 | |
Offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) | |
Section | Description of offence |
15 | Contravention in relation to poppy straw. |
16 | Contravention in relation to coca plant and coca leaves. |
17 | Contravention in relation to prepared opium. |
18 | Contravention in relation to opium poppy and opium. |
19 | Embezzlement of opium by cultivator. |
20 | Contravention in relation to cannabis plant and cannabis. |
21 | Contravention in relation to manufactured drugs and preparations. |
22 | Contravention in relation to psychotropic substances. |
23 | Illegal import into India, export from India to transhipment of narcotic drugs and psychotropicsubstances. |
24 | External dealings in narcotic drugs and psychotropic substances in contravention of Section 12 of the Narcotic Drugs and Psychotropic Substances Act, 1985. |
25-A | Contravention of orders made under Section 9-A of the Narcotic Drugs and Psychotropic Substances Act, 1985. |
27-A | Financing illicit traffic and harbouring offenders. |
29 | Abetment and criminal conspiracy. |
Paragraph 3 Offences under the Explosive Substances Act, 1908(6 of 1908) | |
Section | Description of offence |
3 | Causing explosion likely to endanger life or property. |
4 | Attempt to cause explosion, or for making or keeping |
explosives with intent to endanger life or property. | |
5 | Making or possessing explosives under suspicious circumstances. |
Paragraph 4 | |
Offences under the Unlawful Activities (Prevention) Act, 1967 (37 of 1967) | |
Section | Description of offence |
10 read withSection 3 | Penalty for being member of an unlawful association,etc. |
11 read with Section 3 | Penalty for dealing with funds of an unlawful association. |
13 read with Section 3 | Punishment for unlawful activities. |
16 read with Section 15 | Punishment for terrorist act. |
16-A | Punishment for making demands of radioactive substances, nuclear devices, etc. |
17 | Punishment for raising fund for terrorist act. |
18 | Punishment for conspiracy, etc. |
18-A | Punishment for organising of terrorist camps. |
18-B | Punishment for recruiting of any person or persons for terrorist act. |
19 | Punishment for harbouring, etc. |
20 | Punishment for being member of terrorist gang or organisation. |
21 | Punishment for holding proceeds of terriorism. |
38 | Offence relating to membership of a terrorist organisation. |
39 | Offence relating to support given to a terrorist organisation. |
40 | Offence of raising fund for a terrorist organisation. |
PARAGRAPH 5 Offences under the Arms Act, 1959(54 of 1959) | |
Section | Description of offence |
25 | To manufacture, sell, transfer, convert, repair or test or prove or expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition to contravention of Section 5 of the Arms Act, 1959. To acquire, have in possession or carry any prohibited arms or prohibited ammunition in contravention of Section 7 of the Arms Act, 1959. Contravention of Section 24-A of the Arms Act, 1959 relating to prohibition as to possession of notified arms in disturbed areas, etc. Contravention of Section 24-B of the Arms Act, 1959 relating to prohibition as to carrying of notified arms in or through public places in disturbed areas. Other offences specified in Section 25. |
26 | To do any act in contravention of any provisions of Sections 3, 4, 10 or Section 12 of the Arms Act, 1959 in such manner as specified in sub-section (1) of Section 26 of the said Act. To do any act in contravention of any provisions of Sections 5, 6, 7 or Section 11 of the Arms Act, 1959 in such manner as specified in sub-section (2) of Section 26 of the said Act. Other offences specified in Section 26. |
27 | Use of arms or ammunition in contravention of Section 5 or use of any arms or ammunition in contravention of Section 7 of the Arms Act, 1959. |
28 | Use and possession of fire arms or imitation fire arms in certain cases. |
29 | Knowingly purchasing arms from unlicensed person or for delivering arms, etc., the person not entitled to possess the same. |
30 | Contravention of any condition of a licence or any provisions of the Arms Act, 1959 or any rule made thereunder. |
PARAGRAPH 6 Offences under the Wild Life (Protection) Act, 1972 (53 of 1972) | |
Section | Description of offence |
51 read withSection 9 | Hunting of wild animals. |
51 read withSection 17-A | Contravention of provisions of Section 17-A relating to prohibition of picking, uprooting, etc., of specified plants. |
51 read withSection 39 | Contravention of provisions of Section 39 relating to wild animals, etc., to be Government property. |
51 read withSection 44 | Contravention of provisions of Section 44 relating to dealings in trophy and animal articles without licence prohibited. |
51 read withSection 48 | Contravention of provisions of Section 48 relating to purchase of animal, etc., by licensee. |
51 read withSection 49-B | Contravention of provisions of Section 49-B relating to prohibition of dealings in trophies, animals articles, etc., derived from scheduled animals. |
PARAGRAPH 7 | |
Offences under the Immoral Traffic (Prevention) Act, 1956 (104 of 1956) | |
Section | Description of offence |
5 | Procuring, inducing or taking person for the sake of prostitution. |
6 | Detaining a person in premises where prostitution is carried on. |
8 | Seducing or soliciting for purpose of prostitution. |
9 | Seducing of a person in custody. |
PARAGRAPH 8 | |
Offences under the Prevention of Corruption Act, 1988 | |
(49 of 1988) | |
Section | Description of offence |
7 | Offence relating to public servant being bribed. |
7-A | Taking undue advantage to influence public servant by corrupt or illegal means or by exercise of personal influence. | |
8 | Offence relating to bribing a public servant. | |
9 | Offence relating to bribing a public servant by a commercial organisation. | |
10 | Person in charge of commercial organisation to be guilty of offence. | |
11 | Public servant obtaining undue advantage, without consideration from person concerned in proceeding or business transacted by such public servant. | |
12 | Punishment for abetment of offences. | |
13 | Criminal misconduct by a public servant. | |
14 | Punishment for habitual offender.] | |
PARAGRAPH 9 | ||
Offences under the Explosives Act, 1884 (4 of 1884) | ||
Section | Description of offence | |
9-B | Punishment of certain offences. | |
9-C | Offences by companies. | |
PARAGRAPH 10 | |
Offences under the Antiquities and Arts Treasures Act, 1972(52 of 1972) | |
Section | Description of offence |
25 read with Section 3 | Contravention of export trade in antiquities and art treasures. |
28 | Offences by companies. |
PARAGRAPH 11 | |
Offences under the Securities and Exchange Board of India Act, 1992 (15 of 1992) | |
Section | Description of offence |
12-A read with Section 24 | Prohibition of manipulative and deceptive devices, insider trading and substantial. |
24 | Acquisition of securities or control. |
PARAGRAPH 12 | |
Offences under the Customs Act, 1962 (52 of 1962) | |
Section | Description of offence |
135 | Evasion of duty or prohibitions. |
PARAGRAPH 13 | |
Offences under the Bonded Labour System (Abolition) Act, 1976 (19 of 1976) | |
Section | Description of offence |
16 | Punishment for enforcement of bonded labour. |
18 | Punishment for extracting bonded labour under the bonded labour system. |
20 | Abetment to be an offence. |
PARAGRAPH 14 | |
Offences under the Child Labour (Prohibition and Regulation) Act, 1986 (61 of 1986) | |
Section | Description of offence |
14 | Punishment for employment of any child to work in contravention of the provisions of Section 3. |
PARAGRAPH 15 | |
Offences under the Transplantation of Human Organs Act, 1994(42 of 1994) | |
Section | Description of offence |
18 | Punishment for removal of human organ without authority. |
19 | Punishment for commercial dealings in human organs. |
20 | Punishment for contravention of any other provisions of this Act. |
PARAGRAPH 16 | |
Offences under the Juvenile Justice (Care and Protection of Children) Act, 2000(56 of 2000) | |
Section | Description of offence |
23 | Punishment for cruelty to juvenile or child. |
24 | Employment of juvenile or child for begging. |
25 | Penalty for giving intoxicating liquor or narcotic drug or psychotropic substance to juvenile or child. |
26 | Exploitation of juvenile or child employee. |
PARAGRAPH 17 | |
Offences under the Emigration Act, 1983 (31 of 1983) | |
Section | Description of offence |
24 | Offences and penalties. |
PARAGRAPH 18 | |
Offences under the Passports Act, 1967 (15 of 1967) | |
Section | Description of offence |
12 | Offences by penalties. |
PARAGRAPH 19 | |
Offences under the Foreigners Act, 1946 (31 of 1946) | |
Section | Description of offence |
14 | Penalty for contravention of provisions of the Act, etc. |
14-B | Penalty for using forged passport. |
14-C | Penalty for abetment. |
PARAGRAPH 20 | |
Offences under the Copyright Act, 1957 (14 of 1957) | |
Section | Description of offence |
63 | Offence of infringement of copyright or other rights conferred by this Act. |
63-A | Enhanced penalty on second and subsequent convictions. |
63-B | Knowing use of infringing copy of computer programme. |
68-A | Penalty for contravention of Section 52-A. |
PARAGRAPH 21 | |
Offences under the Trade Marks Act, 1999(47 of 1999) | |
Section | Description of offence |
103 | Penalty for applying false trademarks, trade descriptions, etc. |
104 | Penalty for selling goods or providing services to which false trademark or false trade description is applied. |
105 | Enhanced penalty on second or subsequent conviction. |
120 | Punishment of abetment in India of acts done out of India.] |
PARAGRAPH 22 | |
Offences under the Information Technology Act, 2000 (21 of 2000) | |
Section | Description of offence |
75 | Act to apply for offence or contravention committed outside India.] |
PARAGRAPH 23 | |
Offences under the Biological Diversity Act, 2002 (18 of 2003) | |
Section | Description of offence |
55 read with Section 6 Penalty for contravention of Section 6, etc. | |
PARAGRAPH 24 | |
Offences under the Protection of Plant Varieties and Farmers' Rights Act, 2001 (53 of 2001) | |
Section | Description of offence |
70 read with Section 68 | Penalty for applying false denomination, etc. |
71 read with Section 68 | Penalty for selling varieties to which false denomination is applied. |
72 read with Section 68 | Penalty for falsely representing a variety as registered. |
73 read with Section 68 | Penalty for subsequent offence. |
PARAGRAPH 25 |
5[x x x x] |
PARAGRAPH 26 | |
Offences under the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974) | |
Section | Description of offence |
41(2) | Penalty for pollution of stream or well. |
43 | Penalty for contravention of provisions of Section 24. |
PARAGRAPH 27 |
6[x x x x] |
PARAGRAPH 28 | |
Offences under the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (69 of 2002) | |
Section | Description of offence |
3 | Offences against ship, fixed platform, cargo of a ship, maritime navigational facilities, etc.] |
PARAGRAPH 29 | |
Offence under the Companies Act, 2013 (18 of 2013) | |
Section | Description of offence |
447 | Punishment for fraud.] |
PART B | |
OFFENCE UNDER THE CUSTOMS ACT, 1962 | |
Section | Description of offence |
132 | False declaration, false documents, etc.] |
PART C |
An offence which is the offence of cross border implications and is specified in,-- (1) Part A; or (2) 2[x x x x](3) The offences against property under Chapter XVII of the Indian Penal Code.]3[(4) The offence of willful attempt to evade any tax, penalty or interest referred to in Section 51 of the Black Money (Undisclosed Foreign Income and Assets) Imposition of Tax Act, 2015.] |
PUNISHMENT FOR “MONEY LAUNDERING”
11. Section 4 of the PMLA Act prescribes the punishment for money laundering. The said Sections reads as follows –
“4. Punishment for money-laundering.—Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine:
Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words “which may extend to seven years”, the words “which may extend to ten years” had been substituted.”
OFFICERS EMPOWERED TO INVESTIGATE
12. As per Section 48 of PMLA Act, officers of the Directorate of Enforcement (ED) including Assistant Director and above are empowered to register cases and investigate offences under the Act. No power is given to the Police to investigate the offences under the Act even though Section 45 of the Act makes the offences under the Act cognizable.
NIA CAN ONLY ASSIST THE AUTHORITIES IF SO ORDERED
13. As per Section 54 (j) of PMLA Act, the National Investigation Agency, if specified by the Central Government will have to aid or assist the authorities in the enforcement of the Act.
SPECIAL COURTS
14. Section 43 of the PMLA Act empowers the Central Government, in consultation with the Chief Justice of the High Court concerned, to designate one or more “Courts of Session” as “Special Courts” to try the offence punishable under Section 4 of the Act.
COGNIZANCE OF OFFENCES
15. Section 44 of the PMLA Act deals with the procedure of the Special Court including cognizance of the offence punishable under Section 4 of the Act. The said Section reads as follows –
“44. Offences triable by Special Courts.—
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—
(a) an offence punishable under section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed: Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or;
(b) a Special Court may, upon a complaint made by an authority authorised in this behalf under this Act take cognizance of offence under section 3, without the accused being committed to it for trial;
Provided that after conclusion of investigation, if no offence of money-laundering is made out requiring filing of such complaint, the said authority shall submit a closure report before the Special Court; or
(c) if the court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of money-laundering under sub-clause (b), it shall, on an application by the authority authorised to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of such case proceed to deal with it from the stage at which it is committed.
(d) a Special Court while trying the scheduled offence or the offence of money-laundering shall hold trial in accordance with the provisions of the Code of Criminal Procedure, 1973 ( 2 of 1974) as it applies to a trial before a Court of Session.
Explanation.—For the removal of doubts, it is clarified that,—
(i) the jurisdiction of the Special Court while dealing with the offence under this Act, during investigation, enquiry or trial under this Act, shall not be dependent upon any orders passed in respect of the scheduled offence, and the trial of both sets of offences by the same court shall not be construed as joint trial;
(ii) the complaint shall be deemed to include any subsequent complaint in respect of further investigation that may be conducted to bring any further evidence, oral or documentary, against any accused person involved in respect of the offence, for which complaint has already been filed, whether named in the original complaint or not.
(2) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to “Magistrate” in that section includes also a reference to a “Special Court” designated under section 43.”
Thus, as per Section 44 (1) (b) the Special Court may take cognizance of the offence of “money laundering” under Section 3 upon a “complaint” made by an authority authorised in that behalf by the act and the Special Court can take cognizance of the offence without the accused being committed to it for trial.
POLICE CANNOT REGISTER FIR OR INVESTIGATE THE OFFENCE UNDER THE PMLA ACT
16. Even though as per Section 44 of the PMLA Act every offence under the Act is a “cognizable offence” (which means that a Police Officer can arrest the offender without a warrant of arrest), the Police cannot register an FIR or investigate the offence or file a “Police Report” before the Special Court which can take cognizance of the offence only on a “complaint” by an authorised authority. In case the Police were to register an FIR and conduct investigation and submit a charge-sheet, the same as well as the subsequent trial, if any, will be wholly without jurisdiction. (Vide Daulat Ram v. State of Punjab AIR 1962 SC 1206 = 1962 Cri.L.J. 286 = 1962 KHC 566 – 3 Judges – J. L. Kapor, M. Hidayatullah, Raghubar Dayal – JJ; Paras 27 to 30 of C. Muniappan v. State of Tamil Nadu AIR 2010 SC 3718 = (2010) 9 SCC 567 = 2010 KHC 462 (SC) – G. S. Singhvi, Dr. B. S. Chauhan – JJ.)
THE NIA ACT, 2008
17. The NIA Act which came into force on 02-08-2019 also extends to the whole of India. This Act has established the National Investigation Agency empowered to investigate and prosecute offences affecting India's sovereignty, security and integrity.
OFFENCES UNDER THE NIA ACT
18. The offences are those made punishable under the following statutes enumerated in the Schedule to the NIA Act –
1. The Atomic Energy Act, 1962 (33 of 1962);
2. The Unlawful Activities (Prevention) Act, 1967 (37 of 1967);
3. The Anti-Hijacking Act, 1982 (65 of 1982);
4. The Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982 (66 of 1982);
5. The SAARC Convention (Suppression of Terrorism) Act, 1993 (36 of 1993);
6. The Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (69 of 2002);
7. The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 (21 of 2005);
8. Offences under—
(a) Chapter VI of the Indian Penal Code (45 of 1860) [offences against the State - Sections 121 to 130 (both inclusive)];
(b) Counterfeiting currency notes, bank notes etc. -Sections 489-A to 489-E (both inclusive) of the Indian Penal Code (45 of 1860).
OFFICERS EMPOWERED TO INVESTIGATE OFFENCES UNDER THE NIA ACT
19. As per Section 3 (3) of NIA Act, any officer of the National Investigation Agency of and above the rank of sub-Inspector is given the power of an officer-in-charge of a police station throughout India for the purpose of investigating the “Scheduled offences” (i.e. the offences enumerated in the Schedule to the Act).
HOW THE NIA TAKES OVER THE INVESTIGATION
20. Where an FIR has been registered with regard to a “Scheduled Offence” under the NIA Act, the officer-in-charge of a police station (SHO) has to forthwith forward a “report” under Section 6 (1) of the NIA Act to the State Government which in turn, has to forward the “report” to the Central Government under Section 6 (2) of the Act. If on the basis of “information” made available either from a “report” of the State Government under Section 6 (1) of the NIA Act, or on the basis of information received from other sources, the Central Government is of opinion under Section 6 (3) of the NIA Act that the case is a fit case to be investigated by the National Investigation Agency (NIA), the Central Government can either –
- direct the NIA under Section 6 (4) of the NIA Act, to investigate the case, or
- suo motu, direct the NIA under Section 6 (5) of the NIA Act, to investigate the case, notwithstanding anything contained in Section 6.
This means that even without any “report” from the SHO routed through the State Government, the Central Government can suo motu direct the NIA to investigate the case, provided the said Government is satisfied that the alleged act disclaims or questions or disrupts or is intended to disrupt the sovereignty or territorial integrity of India.
SPECIAL COURTS
21. Section 11 of the NIA Act gives power to the Central Government, in consultation with the Chief Justice of the High Court concerned, to designate by notification one or more Courts of Session as “Special Court” to try offences under the Act. Likewise, Section 22 of the NIA Act gives power to the State Governments also, to designate one or more Courts of Session as “Special Court” for trial of offences under any of the enactments specified in the Schedule.
- Every “Scheduled Offence” investigated by the NIA shall be tried only by the Special Court within whose jurisdiction the offence was committed. (Vide Section 13 (1) of the NIA Act).
- When trying any offence, the Special Court may also try any other offence with which the accused may, under the Cr.P.C. be charged at the same trial if the offence is connected with such other offence. (Vide Section 14 (1) of the NIA Act).
- If during the trial of any offence under the NIA Act it is revealed that the accused person has committed any other offence either under the NIA Act or under any other law, the Special Court may convict such person of such other offence and may pass any sentence or award any punishment authorised under law. (Vide Section 14 (2) of the NIA Act)
COGNIZANCE OF OFFENCES
22. The Special Court can take cognizance of any offence without the accused being committed to it for trial, upon receiving a “complaint of facts that constitute the offence” or upon a “Police Report” of such facts. (Vide Section 16 (1) of the NIA Act).
- Notwithstanding anything contained in the Cr.P.C., but subject to Section 299 Cr.P.C., 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. (Vide Section 16 (5) of the NIA Act).
- Trial under the NIA Act by the Special Court shall be held on day-to-day basis and it should have precedence over the trial of other cases against the accused any other Court other than a Special Court. (Vide Section 19 of the NIA Act)
A QUESTION HAVING GREAT SIGNIFICANCE
Q. What is the scope for NIA to conduct investigations under the other 2 statutes, namely, UAP Act, 1967 and PMLA Act, 2002 ?
Ans. The NIA's primary mandate is to investigate the “Scheduled offences” under the NIA Act and the offences under the UAP Act. In the case of the PMLA Act, the NIA does not have any direct power to investigate offences under the said Act. Investigation under the PMLA Act typically falls within the jurisdiction of the Directorate of Enforcement (ED). The NIA can only assist the authorities under the PMLA Act, if so specified by the Central Government under Section 54 (j) of PMLA Act.
Author is Former Judge, High Court of Kerala.
Views Are Personal.