Last Updated: Wednesday May 28, 2008
The Enemy Agents’ Ordinance, 1943
Ordinance No. I OF 1943
(The Ordinance has been applied to‑(i) the partially
excluded areas of the Mymensingh District, with effect from
(ii)
(iii) tribal areas beyond the western and northern boundaries
of the North‑West Frontier Province subject to modifications, see
Notification No. 21‑W., dated the 16th February 1943, Gazette of India,
(iv) such of the Baluch tribal areas beyond the western
border of the Dera Ghazi Khan District of the Punjab as are not included in the
Baluchistan tribal areas and subject to such amendments as the ordinance is for
the time being subject in the Provinces, etc., see Notification No. 24‑W.,
dated the 20th February, 1943, Gazette of India,
The Ordinance has been extended to the Leased Areas of
Baluchistan by the Leased Areas (Laws) Order, 1950 (G. G. O. 3 of 1950).)
[
An Ordinance to provide for the trial and
punishment of enemy agents and persons committing certain offences with intent
to aid the enemy.
WHEREAS an
emergency has arisen 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;
Now, THEREFORE,
in exercise of the powers conferred by section 72 of the Government of India
Act, as set out in the Ninth Schedule to the Government of India Act, 1935, the
Governor‑General is pleased to make and promulgate the following
Ordinance :‑-- 26 Geo 5,c.2.
1.‑(1)
This Ordinance may be called the Enemy Agents’ Ordinance, 1943.
[(2) It extends
to the whole of
(i) to all
citizens of
(ii) to persons
on board any ship or aircraft registered in
(3) It shall
come into force at once
2.
Definition----In this Ordinance, unless there is anything repugnant in the
subject or context,‑
(a)
"enemy" means any State at war with (Subs. by
Act 26 of 1951, s. 4 and 3rd Sch., for "His Majesty".)[
(b) "enemy
agent" means a person, not operating as a member of an 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 naval, military or air
operations of the enemy or to impede the naval, military or air operations of (The original words "His Majesty's Forces or to endanger
life" have been amended by the Enemy Agents (Amdt.) Ordinance, 1944 (11 of
1944), s. 2 and Act 26 of 1951, s. 4 and 3rd Sch., to read as above,)[the
Armed Forces of Pakistan or the forces of a foreign power allied with Pakistan
or of any Acceding State or to endanger life], shall be punishable with death.
4. Offences
triable under this Ordinance-----‑(1) Any offence punishable under
section 3 committed at any time after the 2nd day of September, 1939, 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, 1898, be
charged at one trial, and the procedure of this Ordinance shall apply to the
trial of any such other offence. V of 1898.
5.
Appointment and jurisdiction of Special Judge----‑(1) For the trial
of offences punishable under section 3, the Central Government may appoint as
Special Judges, having jurisdiction throughout (Subs.
by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd
Sch. (with effect from the 14th October, 1955), for "the Provinces and the
Capital of the Federation" which had been subs. by A. O., 1949 for
“British India”)[Pakistan], any persons who have acted for a period of
not less than two years in the exercise of the powers of a Sessions Judge or an
Assistant Sessions Judge under the Code of Criminal Procedure, 1898. V of 1898.
(2) A Special
Judge shall try any offence punishable under section 3 which the Central
Government by general or special order in writing directs to be tried by him,
and may hold his sittings for the trial of any case in any place fixed by the
Central Government.
6. Transfer
of cases from one special Judge to another-----(1) The Central Government
may, at any stage of the proceedings before a Special Judge, transfer the case
to another Special Judge.
(2)
Notwithstanding anything contained in the Code of Criminal Procedure, 1898,
when a case is transferred under subsection (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. V of 1898.
7. Procedure
of Special Judge---‑(1) A Special Judge may take cognisance 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, 1898, for the trial of warrant cases by Magistrates: V of
1898.
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
(lode of Criminal Procedure, 1898, so far as they are not inconsistent with
this Ordinance, shall apply to the proceedings 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 Session. V of 1898.
8. Sentences
by Special Judge--------A Special Judge may pass any sentence authorised by
law,
9. Review of
convictions-----‑( Re‑numbered by the
Enemy Agents (Amdt.) Ordinance, 1943 (15 of 1943).) [(1)] If in any
proceedings before a Special Judge‑
(a) a person
convicted is sentenced to death, or to transportation for life, or
(b) though no
person is so sentenced, the Special Judge certifies that in his opinion the
ease 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 appointed in this behalf by the
Central Government, which person shall be chosen from the Jugdes of a High
Court in (Subs. by the Central Laws (Statute Reform)
Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th
October, 1955), for "the Provinces and the Capital of the Federation"
which had been subs. by A. O., 1949, for "British India".)[
[(2) Where any
proceedings (Sub‑sections (2) and (3) added by
Ordinance 15 of 1943.)are so submitted for review, (The words, brackets and figures "whether such submission
was made before or is made after the commencement of the Enemy Agents (Amdt.)
Ordinance, 1943" rep. by the Federal Laws (Revision and Declaration) Act,
1951 (26 of 1951), s. 3 and 2nd Sch.)* * * the Judge reviewing the
proceedings may, (The words "and shall be deemed
always to have been empowered to" rep., ibid.)* * * exercise in
his discretion any of the powers exercisable under section 439 of the Code of
Criminal Procedure 1898, by a High Court in the case of any proceeding to which
the said section 439 refers: V of 1898.
[Provided that,
where in the (Proviso added by the Enemy Agents (Amdt.)
Ordinance, 1944 (11 of 1944), s. 3,)exercise of these powers the Judge
reviewing the proceedings directs a re‑trial of the accused, or directs
further evidence to be taken, the reviewing Judge may direct the re‑trial
to be held or the further evidence to be taken by the Special Judge by whom the
case was tried in the first instance, or by any other Special Judge, or by a
Special Judge to be appointed for the purpose by the Central Government.]
(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 propriety 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 the proceedings of a
Special Judge, the Special Judge or reviewing Judge, as the case may be, is
satisfied that it is expedient in the interests of the public safety or the
defence of (Proviso added by the Enemy Agents (Amdt.)
Ordinance, 1944 (11 of 1944), s. 3,)[
11.
Limitation on appearance of pleaders-----‑(1) In any proceedings
before a Special Judge, and in proceedings before a Judge reviewing under section
9 the proceedings of a Special Judge when the reviewing Judge grants
permission in this behalf, a person accused of an offence triable under this
Ordinance may of right be defended by a pleader, but such pleader shall be a
person whose name is entered in a list prepared in this behalf by the Central
Government or who is otherwise approved by the Central Government.
(2) A Special
Judge, or a Judge reviewing under section 9 the proceedings of a Special Judge,
may appoint a pleader whose name is entered in the list referred to in sub‑section
(1) or who is otherwise approved by the Central Government 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 Evidence
Act, 1872, when the statement of any person has been recorded by any
Magistrate, such statement may be admitted in evidence in any trial before a
Special Judge, if such person is dead or cannot be found or is incapable of
giving evidence. I of 1872.
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 inquiry 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 subsection (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.
(4)
Notwithstanding anything contained in the Code of Criminal Procedure, 1898, 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). V of 1898.
14.
Exclusion of interference of other Courts----Notwithstanding the provisions
of the Code of Criminal Procedure, 1898, 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 a 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, 1898, or have
any jurisdiction of any kind in respect of any proceedings under this
Ordinance. V of 1898, V of 1898.
[14A. Copies
of proceedings----‑( Section 14A ins. by the
Enemy Agents (Amdt.) Ordinance, 1944 (11 of 1944), s. 4.)(1)
Notwithstanding the provisions of the Code of Criminal Procedure, 1898, 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 16 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 proceedings for the purpose of which is was
obtained.
(3) Any such
copy shall be returned to the authority from which it was obtained within ten
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 16.]
15.
Application of ordinary law-----The provisions of the Code of Criminal
Procedure, 1898, 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 inconsistent with the
provisions of this Ordinance, shall apply to all matters connected with,
arising from, or consequent upon, a trial under this Ordinance. V of 1898
16.
Disclosure of information relating to proceedings under this Ordinance----Any
person who, without the previous authorisation of the Central Government,
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.
17. Power to
make rules----The Central Government may make rules providing for any
matter necessary to carry into effect the purposes of this Ordinance.
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