The ENEMY AGENTS ORDINANCE, 2005 (1948 A.D.)

 ENEMY AGENTS ORDINANCE, 2005
(1948 A.D.)
(Ordinance No. VIII of Samvat 2005)
ENEMY AGENTS ORDINANCE, 2005 (1948 A.D.)15
THE ENEMY AGENTS ORDINANCE, 2005 (1948 A.D.)
(Ordinance No. VIII of 2005.)
CONTENTS
Preamble.
SECTION
1. Short title, extent and commencement.
2. Definitions.
3. Penalty for aiding the enemy.
4. Offences triable under this Ordinance.
5. Appointment and jurisdiction of Special Judge.
6. Transfer of cases from one Special Judge to another.
7. Procedure of Special Judges.
8. Sentences by Special Judges.
9. Review of convictions.
10. Hearing of proceeding in camera.
11. Limitation on appearance of pleaders.
12. Special rules of evidence.
13. Special rules of procedure.
14. Exclusion of interference of other Courts.
15. Accused only entitled to copy of record.
16. Application of ordinary law.
17. Disclosure of information relating to proceedings under this Ordinance.
18. Power to make rules.
19. Repeal.
–––––––
ENEMY AGENTS ORDINANCE, 2005 (1948 A.D.)17
THE ENEMY AGENTS ORDINANCE, 2005 (1948 A.D.)
(Ordinance No. VIII of Samvat 2005)
[Promulgated by His Highness under section 5 of the Jammu and
Kashmir Constitution Act, 1996 and published in Government Gazette dated
12th Magh, 2005.]
An Ordiance to provide for the trial 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 (Ordiance 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, exent and commencement. ––(1) This Ordinance may be
called the Enemy Agents Ordinance, 2005.
(2) It extends to the whole of the 1[Union territory of Jammu and Kashmir]
and applies also to subjects and servants of the 1[Union territory of Jammu and
Kashmir] outside the 1[Union territory of Jammu and Kashmir] 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 2[Government of Union
territory of Jammu and Kashmir] established by law in the 1[Union
territory of Jammu and Kashmir] ;
1. Substituted by S.O. 1229 (E) dated 31.03.2020.
2. Substituted for “Government” ibid.
18 ENEMY AGENTS ORDINANCE, 2005 (1948 A.D.)
(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.
1[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 espoinage 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, 1947, 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 2[Code of Criminal Procedure,
1973 (2 of 1974)],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 3[4{Government of Union territory of
Jammu and Kashmir} in consultation with the High Court] may 3[appoint as a
Special Judge having jurisdiction throughout the 5[Union territory of Jammu
and Kashmir], any person who is qualified to be appointed as judge  of the High
Court, or who has exercised the powers of a Sessions Judge under the 2[Code of
Criminal Procedure, 1973 (2 of 1974)] or who have, for a  period of not less than
10 years, practised at the Bar.
1. Explanation inserted by Act XXIV of 1967.
2. Substituted for “Code of Criminal Procedure, 1989” by S.O. 1229 (E) dated 31.03.2020.
3. Substituted by Act XL of 1966 for ‘‘Government’’.
4. Substituted for “Government” by S.O. 1229 (E) dated 31.03.2020.
5. Substituted by Act XIV of 1972, s. 2.
ENEMY AGENTS ORDINANCE, 2005 (1948 A.D.)19
(2) A Special Judge shall try any offence punishable under section 3
which the 1[2{Government of Union territory of Jammu and Kashmir} 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 1[2{Government of Union territory of Jammu and Kashmir} in
consultation with the High Court].
6. Transfer of cases from one Special Judge to another. ––(1) The
1[2{Government of Union territory of Jammu and Kashmir} in consultation with
the High Court] may, at any stage of the proceedings before a Special Judge,
transfer the case to another Special Judge.
(2) Notwithstanding anything contained in the 3[Code of Criminal
Procedure, 1973 (2 of 1974)], when a case is transferred under sub-section (1),
the Special Judge to whom the case is transferred shall not be bound to re-
summon 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 3[Code of Criminal Procedure, 1973 (2 of 1974)], 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 coming within the scope of sub-section (1), the provisions
of the 3[Code of Criminal Procedure, 1973 (2 of 1974)], 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.
1. Substituted by Act XL of 1966 for ‘‘Government’’.
2. Substituted for “Government” by S.O. 1229 (E) dated 31.03.2020.
3. Substituted for “Code of Criminal Procedure, 1989” ibid.
20 ENEMY AGENTS ORDINANCE, 2005 (1948 A.D.)
9. Review of convictions. ––(1) If, in any proceeding before a Special
Judge,––
(a) a person convicted is sentenced to death or to imprisonment for
life, or
(b) though no person is so sentenced, the Special Judge certifies that in
his opinion the case has involved questions of special difficulty,
whether of law or fact or is one which for any other reason ought
properly to be reviewed, the proceedings shall be submitted for
review by a person chosen by the 1[Government of Union territory
of Jammu and Kashmir] from the Judges of the High Court and the
decision of that person shallbe final.
(2)  Where any proceedings are so submitted for review, the Judge reviewing
the proceedings may exercise in his discretion any of the powers exercsable
under 2[section 401 of the Code of Criminal Procedure, 1973 (2 of 1974)], by the
High Court in the case of any proceedings which the said *[section 439] refers :
Provided that where in the exercise of these powers the Judge reviewing
the proceedings directs a retrial of the accused, or directs further evidence to be
taken,the reviewing Judge may direct the retrial to be held or the further evidence
to be taken by the Special Judge by whom the case was tried in the first intance
or by any other Special Judge, or by a Special Judge to be appointed for the
purpose by the 1[Government of Union territory of Jammu and Kashmir].
(3) The person appointed under sub-section (1) to review the proceedings
of a special Judge may call for and examine the record of any proceedings before
the Special Judge for the purpose of satisfying himself as to the correctness,
legality or properiety of any finding, sentence or order recorded or passed and
as to the regularity of any proceedings of the Special Judge, and may exercise in
the case of proceedings the record of which has been so called for any of the
powers which would have been exercisable by him in the case of such proceedings
had they been submitted to him for review under sub-section (1).
10. Hearing of proceedings in camera.–– If, as respects any proceedings
before a Special Judge or before a Judge reviewing under section 9 of the
proceedings of a Special Judge, the Special Judge or reviewing Judge, as  the
case may be, is satisfied that it is expendient in the interests of the public safety
or the defence of the 3[Union territory of Jammu and Kashmir] so to do, such
1. Substituted for “Government” by S.O. 1229 (E) dated 31.03.2020.
2. Substituted for “section 439 of the Code of Criminal Procedure, 1989, ibid.
* Now section 401.
3. Substituted for “State” by S.O. 1229 (E) dated 31.03.2020.
ENEMY AGENTS ORDINANCE, 2005 (1948 A.D.)21
Judge may give directions, that throughout or during any part of the proceedings
such person or class of persons as the Judge may determine shall be excluded.
11. Limiation on appearance of pleaders. ––(1) In any proceedings before
the Special Judge and in proceeding before a Judge reviewing under section  9
the proceedings of a Special Judge when the Special Judge or the reviewing
Judge grants permission in this behalf, a person accused of an offence triable
under this Ordinance  may be defended by a pleader.
(2) A Special Judge, or a Judge reviewing under section 9 the proceedings
of a Special Judge, may appoint a pleader to defend at any stage of the proceedings
a person accused of an offence triable under this  Ordinance who has not himself
engaged a pleader.
(3) A Special Judge, shall not be required to grant an adjournment for the
purpose of securing the attendance of a pleader if in the opinion of the  Special
Judge such adjournment would cause unreasonable delay in the disposal of
the case.
12. Special rule of evidence.–– Notwithstanding anything contained
in the 1[Indian Evidence Act, 1872 (1 of 1872)], when the statement of any
person has been recorded by the Magistrate such statement may be admitted
in evidence in any trial before a Special Judge, if such a person is dead or
cannot be found or is  incapable of giving evidence.
13. Special rule of procedure. ––(1) When any accused, in a trial before
a Special Judge, has by his voluntary act rendered himself incapable of
appearing before the Court, or resists his production before it or behaves
before it in a persistently disorderly manner, the Court may, at any stage of  the
trial, by order in writing, made after such enquiry as it may think fit, dispense
with the attendance of such accused for such period as it may  think fit and
proceed with the trial in his absence.
(2) Where a plea is required in answer to a charge from an accused whose
attendance has been dispensed with under sub-section (1), such accused shall
be deemed not to plead guilty.
(3) An order under sub-section (1) dispensing with the  attendance of an
accused shall not affect his right of being represented by a pleader at any stage
of the trial, or being present in person if he has become capable of appearing, or
appears in Court and undertakes to behave in an orderly manner.
1. Substituted for “Evidence Act, 1977” by S.O. 1229 (E) dated 31.03.2020.
22 ENEMY AGENTS ORDINANCE, 2005 (1948 A.D.)
(4) Notwithstanding anything contained in the 1[Code of Criminal
Procedure, 1973 (2 of 1974)], no finding, sentence or order passed in a trial
before a  Special Judge shall be held to be illegal by reason of any omission or
irregularity whatsoever arising from the absence of any or all of the accused
whose attendance has been dispensed with under sub-section (1).
14. Exclusion of interference of other Courts.–– Notwithstanding the
provisions of the *[Code of Criminal Procedure, 1989], or of any other law  for the
time being in force, or of anything having the force of law by  whatsoever
authority made or done, there shall be no appeal from any order  or sentence
made or passed by a Special Judge or reviewing Judge under  this Ordinance
and, save as provided in this Ordinance, no Court shall have  authority to revise
such order or sentence or to transfer any case from the  Court of a Special Judge
or to make any order **[under section 491 of the  Code of Criminal Procedure,
1989], or have any jurisdiction of any kind in respect of any proceedings under
this Ordinance.
15. Accused only entitled to copy of record. ––(1) Notwithstanding the
provisions of the 1[Code of Criminal Procedure, 1989], or of any other law for the
time being in force, or of anything having the force of law by  whatsoever authority
made or done, no person, other than the accused or his pleader, shall be entitled
to be furnished with a copy of any part of the records of, or of any document
relating to, any proceedings under this Ordinance.
(2) Any such copy furnished to the accused or his pleader, shall be kept by
the person to whom it was furnished in his personal custody, and it shall be an
offence punishable under section 17 for that person to show it to any person
other than his pleader or his client, as the case may be, or to divulge its contents
except in the course of the proceeding for the purpose of which it was obtained.
(3) Any such copy shall be returned to the authority from whom it was
obtained within 10 days of the conclusion of the proceedings for the purpose of
which it was furnished and any failure so to do shall be punishable with the
punishment provided for an offence under section 17.
16. Application of ordinary law.–– The provisions of the 1[Code of Criminal
Procedure, 1973 (2 of 1974)], and of any other law for the time being in force, in
so far as they may be applicable and in so far as they are not in consistent with
the provisions of this Ordinance, shall apply to all matters connected with,
arising from or consequent upon, a trial under this Ordinance.
1. Substituted for “Code of Criminal Procedure, 1989” by S.O. 1229 (E) dated 31.03.2020.
* Now Code of Criminal Procedure, 1973 (2 of 1974).
** Now the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
ENEMY AGENTS ORDINANCE, 2005 (1948 A.D.)23
17. Disclosure of information relating to proceedings under this
Ordinance.–– Any person who, without the previous authorization of the
1[Government of Union territory of Jammu and Kashmir], discloses or publishes
any information with respect to any proceedings or with respect to any person
proceeded against under this Ordinance, shall be punishable with imprisonment
for a term which may extend to two years, or with fine, or with both.
18. Power to make rules.–– The 1[Government of Union territory of Jammu
and Kashmir] may make rules providing for any matter necessary to carry into
effect the purposes of this Ordinance.
19. Repeal.–– The Enemy Agents Ordinance No. XIX of 2004 is hereby
repealed but all rules made, orders issued, prosecutions and action taken and
punishment awarded under that Ordinance shall be deemed to have been made,
issued, taken and awarded under this Ordinance.
–––––––
1. Substituted for “Government” by S.O. 1229 (E) dated 31.03.2020.
24 ENEMY AGENTS ORDINANCE, 2005 (1948 A.D.)

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