[Act 35 of 1939] [29th September, 1939] An Act to provide for special measures to ensure the public safety and interest and the defence of British India and for the trial of certain offences. Whereas an emergency has arisen which renders it necessary to provide for special measures to ensure the public safety and interest and the defence of British India and for the trial of certain offences; AND WHEREAS the Governor General in his discretion has declared by Proclamation under sub-section (1) of Section 102 (26 Geo. 5. o. 2) of the Government of India Act, 1935, that a grave emergency exists whereby the security of India is threatened by war; It is hereby enacted as follows:

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S.1 Short title, extent, commencement and duration.--

(1) This Act may be called the Defence of India Act, 1939.

(2) It extends to the whole of British India, and it applies also --

 (a) to British subjects and servants of the Crown in any part of India;

 (b) to British subjects who are domiciled in any part of India wherever they may be;

 (c) in respect of the regulation and discipline of any naval, military or air force raised in British India, to members of, and persons attached to, employed with, or following, that force, wherever they may be; and

 (d) to, and to persons on, ships and aircraft registered in British India wherever they may be.

(3) This section shall come into force at once, and the remaining provisions of this Act shall come into force in such areas and on such date or dates as the Central Government may, by notification in the official Gazette, appoint.

(4) It shall be in force during the continuance of the present war and for a period of six mont

S.2 Powers to make rule.--

(1) The Central Government may, by notification in the official Gazette, make such rules as appear to it to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community.

(2) Without prejudice to the generality of the powers conferred by sub-section (1), the rules may provide for, or may empower any authority to make orders providing for, all or any of the following matters, namely:--

(i) ensuring the safety and welfare of His Majesty's forces, ships and aircraft, and preventing the prosecution of any purpose likely to prejudice the operations of His Majesty's forces or the forces of His Majesty's allies;

(ii) prohibiting anything likely to prejudice the training, discipline or health of His Majesty's forces;

(iii) preventing any attempt to tamper with the loyalty of persons in, or t

S.3 Effect of rules, etc., inconsistent with other enactments.--

Any rule made under Section 2, and any order made under any such rule, shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act.

S.4 Special powers to control civilian personnel employed in connexion with His Majesty's forces.--

The Central Government may, by notification in the official Gazette, direct by general or special order that any persons who, not being members of His Majesty's forces, are attached to, or employed with, or following, those forces, shall be subject to naval, military or air force law, and thereupon such persons shall be subject to discipline, and liable to punishment for offences, under the Indian Navy (Discipline) Act, 1934 (XXXIV of 1934. VIII of 1911. XIV of 1932.), the Indian Army Act, 1911, or the Indian Air Force Act, 1932, as the case may require, as if they were included in such class of persons subject to any of those Acts as may be specified in the notification.

S.5 Enhanced penalties.--

(1) If any person, with intent to wage war against His Majesty or to assist any State at war with His Majesty, contravenes any provision of the rules made under Section 2 or any order issued under any such rule, he shall be punishable with death, or transportation for life, or imprisonment for a term which may extend to ten years, and shall also be liable to fine.

(2) If any person--

 (a) contravenes any such provision of, or any such rule or order made under, the Indian Aircraft Act, 1934 (XXII of 1934), as may be notified in this behalf by the Central Government, or

 (b) in any area notified in this behalf by a Provincial Government, contravenes any such provision of, or any such rule made under, the Indian Arms Act, 1878 (XI of 1878), the Indian Explosives Act, 1884 (IV of 1884), or the Explosive Substances Act, 1908 (VI 1908), as may be notified in this behalf by the Provircial Government

he shall, notwithstanding anything contained in any o

S.6 Temporary amendments of Acts.--

During the continuance of this Act,--

(1) Section 1 (1 & 2 Geo 5, c. 20) of the Geneva Convention Act, 1911, shall have effect in British India as if, in sub-section (1) thereof, for the words "shall be liable on summary conviction lo a fine not exceeding ten pounds", the words "shall be punishable with imprisonment for a term which may extend to six months and shall also be liable to a fine" had been substituted;

(2) Section 5 of the Indian Official Secrets Act, 1923 (XIX 1923), shall have effect as if --

 (a) in sub-section (1) thereof, after the words "in his possession or control" the words "any information likely to assist" the enemy, as defined in the rules made under the Defence of India Act, 1939, or "had been inserted, and after the words "in such a place" the words "or which relates to, or is used in, a protected defined in the rules made under the Defence of India Act, 1939, or relates to anything in such an area," had been inserted; and

&

S.7 Saving and temporary amendment of Act VIII of 1938.--

(1) Notwithstanding anything contained in the Indian Tea Control Act, 1938 (VIII of 1938), the Central Government may appoint any person to be an additional member of, and to act as Chairman of, the Indian Tea Licensing Committee during the continuance of this Act, and on such appointment being made and until this Act ceases to be in force, the Chairman of the said Committee elected under Section 5 of that Act shall cease to exercise the functions of Chairman.

(2) If in pursuance of any scheme for the control of import of Indian tea into the United Kingdom, the Central Government considers it necessary or expedient so to do, it may by order direct the Indian Tea Licensing Committee to apportion the requirement of the United Kingdom among the tea estates in accordance with such principles as may be laid down in the order, and the said Committee shall comply with such order.

(3) If at any time during the continuance of this Act, the agreement referred to in the preamble

S.8 Constitution of Special Tribunals.--

(1) The Provincial Government may for the whole or any part of the Province constitute Special Tribunals which shall consist of three members appointed by the Provincial Government.

(2) No person shall be appointed as a member of a Special Tribunal unless he--

 (a) is qualified under sub-section (3) of Section 220 of the Government of India Act, 1935, for appointment as a Judge of a High Court; or

 (b) has for a total period of not less than three years exercised, whether continuously or not, the powers under the Code of Criminal Procedure. 1898 (V of 1898) (hereafter in this Chapter referred to as the Code) of any one or more of the following,
namely:--
  (i) Sessions Judge, Additional Sessions Judge, Chief Presidency Magistrate, Additional Chief Presidency Magistrate,

  (ii) District Magistrate, Additional District Magistrate.

(3) At least one member of a Special Tribunal shall be qualified for appointment ther

S.9 Jurisdiction of Special Tribunals.--

The Provincial Government may, by general or special order, direct that a Special Tribunal shall try any I offence--

 (a) under any rule made under Section 2, or

 (b) punishable with death, transportation or imprisonment for a term which may extend to seven years,--

triable by any Court having jurisdiction within the local limits of the jurisdiction of the Special Tribunal, and may in any such order direct the transfer to the Special Tribunal of any particular case from any other Special Tribunal or any other Criminal Court not being a High Court.

S.10 Procedure of Special Tribunals.--

(1) A Special Tribunal may take cognizance of offences without the accused being committed to it for trial.

(2) Save in cases of trials of offences punishable with death or transportation for life, it shall not be necessary in any trial for a Special Tribunal to take down the evidence at length in writing, but the Special Tribunal shall cause a memorandum of the substance of what each witness deposes to be taken down in the English language, and such memorandum shall be signed by a member of the Special Tribunal and shall form part of the record.

(3) A Special Tribunal shall not be bound to adjourn any trial for any purpose unless such adjournment is, in its opinion, necessary in the interests of justice.

(4) A Special Tribunal shall not, merely by reason of a change in its members, be bound to recall and rehear any-witness who has given evidence, and it may act on the evidence already recorded by or produced before it.

(5) After an accused person has onc

S.11 Exclusion of public from Proceedings of Special Tribunals.--

In addition, and without prejudice, to any powers which a Special Tribunal may possess by virtue of any law for the time being in force to order the exclusion of the public from any proceedings, if at any stage in the course of a trial of any person before a Special Tribunal application is made by the prosecution, on the ground that the publication of any evidence to be given or of any statement to be made in the course of the trial would be prejudicial to the safety of the State, that all or any portion of the public shall be excluded during any part of the hearing, the Special Tribunal may make an order to that effect, but the passing of sentence shall in any case take place in public.

S.12 Powers of Special Tribunals.--

A Special Tribunal shall have all the powers conferred by the Code on a Court of Session exercising original jurisdiction.

S.13 Sentences of Special Tribunals.--

(1) A Special Tribunal may pass any sentence authorised by law.

(2) A person sentenced by a Special Tribunal--

 (a) to death or transportation for life, or

 (b) to imprisonment for a term extending to ten years under Section 5 of this Act or under subsection (4) of Section 5 of the Indian Official Secrets Act, 1923 (XIX of 1923), as amended by Section 6 of this Act--

shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code, or of any other law for the time being in force, or of any thing having the force of law by whatsoever authority made or done, there shall be no appeal from any order or sentence of a Special Tribunal, and no Court shall have authority to revise such order or sentence, or to transfer any case from a Special Tribunal, or to make any order under Section 491 of the Code, or have any jurisdiction of any kind in respe

S.14 Jurisdiction of ordinary Courts.--

Save as otherwise expressly provided by or under this Act, the ordinary criminal and civil Courts shall continue to exercise jurisdiction.--

S.15 Ordinary avocations of life to be interfered with as little as possible.--

Any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and, interest and the defence of British India.

S.16 Savings as to orders.--

(1) No order made in exercise of any power conferred by or under this Act shall be called in question in any Court.

(2) Where an order purports to have been made and signed by any authority in exercise of any power conferred by or under this Act, a Court shall, within the meaning of the Indian Evidence Act, 1872,(I of 1872)presume that such order was so made by that authority.

S.17 Protection of action taken under the Act.--

(1) No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder.

(2) Save as otherwise expressly provided under this Act, no suit or other legal proceeding shall lie against the Crown for any damage caused or likely to be caused by anything in good faith done or intended to be done in pursuance of this Act or any rules made thereunder.

S.18 Protection from prosecution, etc, of members of military and police forces of Indian States while serving His Majesty.--

Every provision of law for the time being in force which gives protection, whether specifically or otherwise, to members of His Majesty's military forces or of the police forces in British India from any prosecution or other legal proceedings or from any other liability shall apply also to members of the military or police forces respectively of any Indian State, while attached to, operating with or assisting any of His Majesty's military forces or any police force in British India.

S.19 Compensation to be paid in accordance with certain principles for compulsory acquisition of immovable property, etc.--

(1) Where by or under any rule made under this Act any action is taken of the nature described in sub-section (2) of Section 299 of the Government of India Act, 1-935 (26 Geo. 5, c. 2), there shall be paid compensation, the; amount of which shall be determined in the manner, and in accordance with the principles, hereinafter set out, that is to say:--

 (a) Where the amount of compensation can be fixed by agreement, it shall be paid in accordance with such agreement.

 (b) Where no such agreement can be reached, the Central Government shall appoint as arbitrator a person qualified under sub-section (3) of Section 220 of the above-mentioned Act for appointment as a Judge of a High Court.

 (c) The Central Government may, in any particular case, nominate a person having expert knowledge as to the nature of the property acquired, to assist the arbitrator, and where such nomination is made, the person to be compensated may also nominate an assessor for t

S.20 Definition.--

In this Act, unless there is anything repugnant in the subject or context, the expression "Provincial Government" means, in relation to a Chief Commissioner's Province, the Chief Commissioner.

S.21 Repeal and saving.--

The Defence of India Ordinance, 1939 (Ord V of 1939) is hereby repealed; and any rules made, anything done and any action taken in exercise of any power conferred by or under the said Ordinance shall be deemed to have been made, done or taken in exercise of powers conferred by or under this Act as if this Act had commenced on the 3rd day of September, 1939.