Enemy Agents Ordinance, 2005 (1948 A.D.)
No: 8 Dated: Jan, 12 2005
THE ENEMY AGENTS ORDINANCE, 2005 (1948 A.D.)
(Ordinance No. VIII of Samvat 2005)
An Ordinance to provide for the trial and punishment of enemy agents and persons committing certain offences with intent to aid the enemy.
Preamble. - Whereas an emergency has arisen as a result of wanton attack by outside raiders and enemies of the State which makes it necessary to provide for the trial and punishment of enemy agents and persons committing certain offences with intent to aid the enemy;
And whereas the present law on the subject (Ordinance No. XIX of 2004) requires to be amended in certain respects and it is proposed to issue the ordinance with necessary amendments in consolidated form ;
Now therefore, in exercise of the powers reserved under section 5 of the Jammu and Kashmir Constitution Act, 1996, His Highness is pleased to make and issue the following Ordinance
1. Short title, extent and commencement. - (1) This Ordinance may be called the Enemy Agents Ordinance, 2005.
(2) It extends to the whole of the Jammu and Kashmir State and applies also to subjects and servants of the State outside the Jammu and Kashmir State wherever they may be.
(3) It shall come into force at once.
2. Definitions. - In this Ordinance, unless there is anything repugnant in the subject or context,-
(a) "enemy" means and includes any person, directly or indirectly, participating or assisting in the campaign recently undertaken by raiders from outside in subverting the Government established by law in the State;
(b) "enemy agent" means a person, not operating as a member of enemy armed force, who is employed by, or works for, or acts on instructions received from, the enemy.
3. Penalty for aiding the enemy. - Whoever is an enemy agent or, with intent to aid the enemy, does, or attempts or conspires with any, other person to do any act which is designed or likely to give assistance to the military or air operations of the enemy or to impede the military or air operations of Indian forces or to endanger life or is guilty of incendiarism shall be punishable with death or rigorous imprisonment for life or with rigorous imprisonment for a term which may extend to 10 years and shall also be liable to fine.
[Explanation. - For removal of doubts it is hereby declared that a person shall also be guilty of an offence under this section if he, being aware that arms and explosives or any equipment capable of being used for espionage or sabotage have been dumped or left behind by a raider or an enemy agent, wilfully omits to report to the nearest Magistrate or police Officer of the arms, ammunition or equipment so dumped or left behind.]
4. Offences triable under this Ordinance. - (1) Any offence punishable under section 3 committed at any time after 22nd October, 1917, whether committed before or after the commencement of this Ordinance, shall be triable under the provisions of this Ordinance.
(2) Where a person is charged before a Special Judge with an offence punishable under section 3, he may be charged with and tried at the same trial for any other offence with which he might under the Code of Criminal Procedure, 1989, be charged at one trial and the procedure of this Ordinance shall apply to the trial of any such other offence.
5. Appointment and jurisdiction of Special Judge. - (1) For the trial of offences punishable under section 3, the [Government in consultation with the High Court] may [appoint as a Special Judge having jurisdiction throughout the State, any person who is qualified to be appointed as judge of the High Court, or who exercised the powers of a Sessions Judge under the Code of Criminal Procedure Samvat 1989] or who have, for a period of not less than 10 years, practised at the Bar.
(2) A Special Judge shall try any offence punishable under section 3 which the [Government in consultation with the High Court] by general or special order in writing direct to be tried by him and may hold his sittings for the trial of any case in any place fixed by the [Government in consultation with the High Court],
6. Transfer of cases from one Special Judge to another. - (1) The [Government in consultation with the High Court] may, at any staged the proceedings before a Special Judge, transfer the case to another Special Judge
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1989, when a case is transferred under sub-section (1), the Special Judge to whom the case is transferred shall not be bound to resummon or re-hear the witnesses or any of them unless he is satisfied that such a course is necessary in the interests of justice.
7. Procedure of Special Judges. - (1) A Special Judge may take cognizance of an offence without the accused being committed to his Court for trial, and, in trying accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1989, for the trial of warrant cases by Magistrates:
Provided that a Special Judge shall ordinarily record a memorandum only of the substance of the evidence of each witness examined, may refuse to summon any witness if satisfied after examination of the accused that the evidence of such witness will not be material and shall not be bound to adjourn any trial for any purpose unless such adjournment is in his opinion necessary in the interests of justice.
(2) In matters not coining within the scope of sub-section (1), the provisions of the Code of Criminal Procedure, 1989, so far as they are not inconsistent with this Ordinance, shall apply to the proceeding of a Special Judge; and for the purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Sessions.
8. Sentences by Special Judges. - A Special Judge may pass any sentence authorised by law.