(7) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical or electronic device like cassettes, tapes or sound tracks from out of which sound 1 of 1872 SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 27 or images can be reproduced, shall be admissible in the trial of such person for an offence under this Ordinance or rules made thereunder.
(2) A police officer shall, before recording any confession made by a person under sub-section (7), explain to such person in writing that he is not bound to make a confession and that if he does so, it may be used against him:
Provided that where such person prefers to remain silent, the police officer shall not compel or induce him to make any confession.
(3) The confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it.
(V) The person from whom a confession has been recorded under sub-section (/), shall be produced before the Court of a Chief Metropolitan Magistrate or the Court of a Chief Judicial Magistrate along with the , original statement of confession, written or recorded on mechanical or electronic device within forty-eight hours.
(5) The Chief Metropolitan Magistrate or the Chief.
Judicial Magistrate, shall, record the statement, if any, made by the person so produced and get his signature or thumb impression and if there is any complaint of torture, such person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than an Assistant Civil Surgeon and thereafter, he shall be sent to judicial custody.
33. Where, after taking cognizance of any offence, a Special Court is of the opinion that the offence is not Power to transfer cases to regular courts.
28 THE GAZETTE OF INDIA EXTRAORDINARY [PART II- triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such offence to any court having jurisdiction under the Code and the court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence.
34. (/) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.
Explanation. - For the purposes of this section, "High Court" means a High Court within whose jurisdiction, a Special Court which passed the judgment, sentence or order, is situated.
Appeal.
(2) Every appeal under sub-section (I) shall be heard by a bench of two Judges of the High Court.
(3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court.
(-/) Notwithstanding anything contained in subsection (3) of section 378 of the Code, an. appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.
(5) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from:
Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days.
SEC. 11 THE GAZETTE OF INDIA EXTRAORDINARY 29
35. (/) The jurisdiction conferred by this Ordinance on a Special Court, shall, until a Special Court is constituted under section 23, in the case of any offence punishable under this Ordinance, notwithstanding anytning contained in the Code, be exercised by the Court of Session of the division in which such offence has been committed and it shall have all the powers and follow the procedure provided under this Chapter.
(2) On and from the date when the Special Court is constituted under section 23, every trial under the provisions of this Ordinance, which would have been required to be held before the Special Court, shall stand transferred to that Court on the date on which it is constituted.
Transitional provisions and Imnsfcr of pending proceedings.
Definitions.
CHAPTER V INTERCEPTION OF COMMUNICATION IN CERTAIN CASES
36. In this Chapter, unless the context otherwise requires,-
(a) "electronic communication" means any transmission of signs, signals, writings, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system that affects inland or foreign commerce but does not include,- (/) the radio portion of a cordless telephone communication that is transmitted between the wireless telephone hand-set and the base unit;
(//) any wire or oral communication;
30 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— (///) any communication made through a tone only paging device; or (;»') any communication from a tracking device;
(b) "intercept" means the aural or other acquisition of the contents by wire, electronic or oral communication through the use of any electronic, mechanical or other device;
(c) "oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation but such term does not include any electronic communication;
(</) "wire communication" means any aural transmission made in whole or part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of connection, between the point of origin and the point of reception (including the use of such connection in switching station) and such term includes any electronic storage of such communication.
Appointment of Competent Authority.
37. The Central Government or the State Government, as the case may be, may appoint an officer not below the rank of Secretary to the Government in the case of State Government and not below the rank of Joint Secretary to the Government in the case of Central Government, to be the Competent Authority for the purposes of this SEC. 11 THE GAZETTE OF INDIA EXTRAORDINARY 31 Chapter.
Application for authorisation of interception or wire, electronic or oral communication.
38. (/) A police officer not below the rank of Superintendent of Police supervising the investigation of any terrorist act under this Ordinance may submit an application in writing to the Competent Authority for an order authorising or approving the interception of wire, electronic or oral communication by the investigating officer when he believes that such interception may provide, or has provided evidence of any offence involving a terrorist act.
(2) Each application shall include the following information:-
(a) the identity of the investigating officer making the application, and the head of the department authorising the application;
(b) a statement of the facts and circumstances relied upon by the applicant to justify his belief that an order should be issued, including- (0 details as to the offence of terrorist act that has been, is being, or is about to be committed;
(ii) a particular description of the nature and location of the facilities from which or the p'.ace where the communication is to be intercepted;
(iii) a particular description of the type of communications sought to be intercepted; and
(iv) the identity of the person, if known, committing the terrorist act whose communications are to be intercepted;
(c) a statement of the period of time for which the 3 2 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— interception is required to be maintained, if the nature of the enquiry is such that the authorisation of interception should not automatically terminate after the described type of communication has been first obtained;
(d) a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter; and (<?) where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results
(5) The Competent Authority may require the applicant to furnish additional oral or documentary evidence in support of the application.
39. (/) Upon such application, the Competent Authority may reject the application, or issue an order, as requested or as modified, authorising or approving interception of wire, electronic or oral communications, if the Competent Authority determines on the basis of the facts submitted by the applicant that- Dccision by Competent Authority on application for interception.
(a) there is a probable cause for belief that an individual is committing, has committed, or is about to commit a particular offence described and made punishable under sections 3 and 4 of this Ordinance;
(b) there is a probable cause of belief; that particular communications concerning that offence may be obtained through such interception;
SEC. 1 ] THE GAZETTE OF INDIA EXTRAORDINARY 3 3
(f) there is probable cause of belief that the facilities from which, or the place where, the wire, electronic or oral communications are to be intercepted arc being used or arc about to be used, in connection with the commission of such offence, leased to, or are listed in the name of or commonly used by such person.
(2) Each order by the Competent Authority authorising or approving the interception of any wire, electronic or oral'communication under this section shall specify-
(a) the identity of the person, if known, whose communications arc to be intercepted;
(b) the nature and location of the communication facilities as to which, or the place where, authority to intercept is granted;
(c) a particular description of the type of communication sought to be intercepted, and a statement of the particular offence to which it relates;
(d) the identity of the agency authorised to intercept the communications, and the person authorising the application; and
(e) the period of time during which such interception is authorised, including a statement as to whether or not the interception shall automatically terminate after the described communication has been first obtained.